United States District Court, S.D. Florida, Miami Division
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendants'
Motion to Dismiss [ECF No. 28]. The Court has reviewed the
Motion and the record and is otherwise fully advised. For the
reasons discussed below, the Court DENIES
Foremost Signature Insurance Company (“Foremost”)
brings this action against Defendants SoJo Design, LLC, Sofia
Joelsson, and Xavier Coe a/k/a Chayanne Coe (collectively,
“SoJo”) and Silverboys, LLC
(“Silverboys”) asking the Court to declare that
Foremost has no duty to defend or indemnify SoJo on claims
arising from an underlying action between SoJo and
The Underlying Action
12, 2016, Silverboys filed an action against SoJo relating to
SoJo's allegedly deficient design and construction of
residential buildings in the Bahamas (the “Underlying
Action”). Silverboys alleged damages “in the
millions of dollars.” [ECF No. 1, Ex. A]. During the
relevant time period, Foremost insured SoJo Design, LLC,
pursuant to three consecutive liability insurance policies
(the “Policies”). Foremost is currently defending
SoJo in the Underlying Action with a reservation of rights.
February 25, 2017, Foremost brought this action, pursuant to
Federal Rule of Civil Procedure 57 and 28 U.S.C. § 2201,
seeking a declaration that the Policies do not cover
Silverboys' claims against SoJo and that, therefore,
Foremost has no duty to defend or indemnify SoJo in the
Underlying Action. Foremost alleged that this Court has
diversity jurisdiction over the declaratory action as the
parties are of diverse citizenship and the amount in
controversy exceeds $75, 000. [ECF No. 1].
April 26, 2017, SoJo moved to dismiss arguing that (1)
Foremost has not alleged the requisite amount in controversy
for diversity jurisdiction and (2) Foremost's request for
declaratory relief is premature.
Standard of Review
12(b)(1) Motion for Lack of Subject Matter Jurisdiction
motion to dismiss for lack of subject matter jurisdiction
brought pursuant to Rule 12(b)(1) of the Federal Rules of
Civil Procedure may present either a facial or a factual
challenge to the complaint. See McElmurray v. Consol.
Gov't, 501 F.3d 1244, 1251 (11th Cir. 2007). In a
facial challenge, a court is required only to determine if
the plaintiff has “sufficiently alleged a basis for
subject matter jurisdiction, and the allegations in [the]
complaint are taken as true for purposes of the
motion.” Id. at 1251. By contrast, a factual
attack “challenge[s] ‘the existence of subject
matter jurisdiction in fact, irrespective of the pleadings,
and matters outside the pleadings . . . are
considered.'” McElmurray, 501 F.3d at 1251
(quoting Lawrence v. Dunbar, 919 F.2d 1525, 1529
(11th Cir. 1990)). In a factual attack, “no presumptive
truthfulness attaches to [a] plaintiff's allegations,
” Lawrence, 919 F.2d at 1529 (quoting
Williamson, 645 F.2d at 413), and the plaintiff
bears the burden to prove the facts sufficient to establish
subject matter jurisdiction. See OSI, Inc. v. United
States, 285 F.3d 947, 951 (11th Cir. 2002).
12(b)(6) Motion for ...