United States District Court, M.D. Florida, Orlando Division
MT. HAWLEY INSURANCE COMPANY, Plaintiff,
TACTIC SECURITY ENFORCEMENT, INC., ADSAN PROPERTIES, LLC, CARLOS RODRIGUEZ, and SUSAN BIANCO, as Personal Representative for the Estate of David Torres, Jr., Defendants.
G. BYRON JUDGE.
cause comes before the Court on Defendant Tactic Security
Enforcement, Inc.'s Motion to Dismiss Second Amended
Complaint for Declaratory Relief (Doc. 59), filed February
24, 2017. On March 10, 2017, Plaintiff responded in
opposition. (Doc. 63). Upon consideration, Defendant's
Motion to Dismiss will be denied.
Mt. Hawley Insurance Company (“Mt. Hawley”),
brings this action pursuant to the Declaratory Judgment Act
to resolve an insurance coverage dispute it has with
Defendants, Tactic Security Enforcement, Inc.
(“Tactic”), Adsan Properties, LLC (Adsan“),
Carlos Rodriguez, and Susan Bianco. Pertinent to this Order,
Mt. Hawley has undertaken to defend Tactic, subject to a
reservation of rights, in two state court lawsuits arising
out of two separate shooting incidents involving Carlos
Rodriguez and David Torres, Jr. In those state court actions,
Mr. Rodriguez and Mr. Torres' estate claim that Tactic
provided negligent security at a property owned by Adsan and
that Tactic's negligence resulted in Mr. Rodriguez's
injury and Mr. Torres' death. Mt. Hawley claims in this
lawsuit that its insurance policy with Tactic provides no
coverage for the incidents at issue in the state court
actions, and Mt. Hawley seeks to recover the attorney's
fees and costs it has expended in defending Tactic. Tactic
now moves to dismiss Mt. Hawley's Second Amended
Subject Matter Jurisdiction
Tactic moves to dismiss the Second Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction. Challenges to subject matter
jurisdiction come in two forms: “facial attacks”
and “factual attacks.” Lawrence v.
Dunbar, 919 F.2d 1525, 1528-29 (11th Cir. 1990). Facial
attacks only require the court to determine if the plaintiff
has alleged a sufficient basis for subject matter
jurisdiction. Id. at 1529. As such, the allegations
within the complaint are assumed true for the purpose of the
motion. Id. On the other hand, factual attacks
challenge the existence of subject matter jurisdiction
irrespective of what the complaint alleges. Garcia v.
Copenhaver, Bell & Assocs., M.D's, P.A., 104
F.3d 1256, 1260-61 (11th Cir. 1997). Accordingly, courts may
consider information outside of the pleadings-including
testimony, affidavits, and other evidence-and may make
factual findings to resolve the motion. McElmurray v.
Consol. Gov't of Augusta-Richmond Cty., 501 F.3d
1244, 1251 (11th Cir. 2007). Subject matter jurisdiction must
exist at the time the action is commenced, and the party who
invokes a federal court's subject matter jurisdiction
bears the burden of establishing the propriety of exercising
that jurisdiction. See Mas v. Perry, 489 F.2d 1396,
1399 (5th Cir. 1974).
Tactic moves to dismiss the Second Amended Complaint on the
ground that Mt. Hawley fails to adequately allege complete
diversity among the parties so as to invoke the Court's
diversity jurisdiction under 28 U.S.C. § 1332(a).
Specifically, Tactic contends that Mt. Hawley's
allegations regarding co-Defendant, Adsan Properties, LLC,
are insufficient to demonstrate that each of Adsan's
members were citizens of a state different from Illinois
(where Mt. Hawley is a citizen) at the time this action was
commenced. Tactic therefore launches a facial attack.
Second Amended Complaint, Mt. Hawley alleges that
“Adsan is a dissolved Florida limited liability
company” and that “[a]ll of Adsan's members
and managers are citizens of the state of Florida, domiciled
in Orange or Seminole County, Florida.” (2d Am. Compl.
¶ 6). Accepting this allegation as true as the Court
must, Tactic has sufficiently alleged Adsan's citizenship
so as to invoke the Court's subject matter jurisdiction
under the diversity statute. Mt. Hawley's motion to
dismiss for lack of subject matter jurisdiction will be
Stating a Claim for Relief
Tactic moves to dismiss the Second Amended Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(6) for failing to
state a claim for relief under the Declaratory Judgment Act.
A Rule 12(b)(6) motion to dismiss tests the legal sufficiency
of the plaintiff's complaint. In order to survive the
motion, the complaint must “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is plausible
on its face when the plaintiff alleges enough facts to
“allow the court to draw the reasonable inference
that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). The mere recitation of the elements of a claim is not
enough, and the district court need not give any credence to
legal conclusions that are unsupported by sufficient factual
material. Id. District courts must accept all
well-pleaded allegations within the complaint and any
documents attached thereto as true and must read the
complaint in the light most favorable to the plaintiff.
Hunnings v. Texaco, Inc., 29 F.3d 1480, 1484 (11th
Cir. 1994) (per curiam).
Declaratory Judgment Act grants to the federal district
courts the power to “declare the rights and other legal
relations of any interested party seeking such declaration,
whether or not further relief is or could be sought.”
28 U.S.C. § 2201. An essential element for every
declaratory judgment action is the existence of an
“actual controversy” between the parties.
Aetna Life Ins. Co. of Hartford, Conn. v. Haworth,
300 U.S. 227, 239-40 (1937). An actual controversy exists
when “there is a substantial controversy, between
parties having adverse legal interests, of sufficient
immediacy and reality to warrant the issuance of a
declaratory judgment.” Md. Cas. Co. v. Pac. Coal
& Oil Co., 312 U.S. 270, 273 (1941). Ordinarily, a
controversy is not sufficiently immediate or real where the
parties' dispute is only hypothetical and not yet ripe,
has been rendered moot, or where the court's resolution
of the matter would be purely academic. See Texas v.
United States, 523 U.S. 296, 300 (1998); Aetna Life
Ins. Co., 300 U.S. at 240-41. On the other hand, a court
should permit a claim for declaratory judgment to proceed
where declaratory relief would (1) “serve a useful
purpose in clarifying and settling the legal relations in
issue, ” and (2) “terminate and afford relief
from the uncertainty, insecurity, and controversy giving rise
to the proceeding.” Volvo Constr. Equip. N. Am.,
Inc. v. CLM Equip. Co., 386 F.3d 581, 594 (4th
Cir. 2004); accord Allstate Ins. Co. v. Emp'rs Liab.
Assurance Corp., 445 F.2d 1278, 1280 (5th Cir. 1971).
moves to dismiss the Second Amended Complaint on the grounds
that Mt. Hawley's Declaratory Judgment Act claims present
no justiciable controversy and are not yet ripe for
adjudication. Tactic takes the position that the facts
alleged in the Second Amended Complaint and in the underlying
state court complaints fail to demonstrate that the incidents
at issue fall outside the insurance policy's coverage.
Tactic also asserts that this matter is not yet ripe because
there has been no determination of liability in either state
Court finds both of Tactic's arguments unavailing. The
facts alleged in the Second Amended Complaint clearly
articulate a ripe and justiciable controversy between Mt.
Hawley and Tactic. Mt. Hawley alleges that it issued an
insurance policy to Tactic that specifically excluded
coverage for incidents involving “‘bodily
injury' . . . arising out of . . . any and all operations
involving bars, taverns, lounges, . . . and
nightclubs.” (2d Am. Compl. ¶ 34) (alterations
omitted). Since the parties dispute whether the incidents at