United States District Court, M.D. Florida, Jacksonville Division
Morales Howard, United States District Judge
CAUSE is before the Court on Plaintiff National
Trust Insurance Company's Motion to Dismiss or, in the
Alternative, Strike Portions of Defendant's Amended
Counterclaim [DKT. 029] [sic] (Doc. 30; Motion),
filed on March 31, 2017. Defendant/Counter-Plaintiff
Pennsylvania National Mutual Casualty Insurance Company (Penn
National) filed a response on April 14, 2017. See
Defendant's Response in Opposition to Plaintiff's
Motion to Dismiss or, in the Alternative, Strike Portions of
Defendant's Amended Counterclaim [Doc. 29] [sic]
(Doc. 32; Response). Upon review of the parties'
filings, the Court finds that there is a substantial question
regarding its subject matter jurisdiction over Count I of
Defendant's Amended Answer and Amended Counterclaim
(Doc. 29; Counterclaim). In Count I, Penn National
seeks a declaration that it had no obligation to defend and
indemnify Linear Masonry, Inc. (Linear) in an underlying
action, and that National Trust Insurance Company (NTIC) did
have such an obligation. Id. ¶ 54.
declaratory judgment remedy is an all-purpose remedy designed
to permit an adjudication whenever the court has
jurisdiction, there is an actual case or controversy, and
adjudication would serve a useful purpose.”
Allstate Ins. Co. v. Emp'rs Liab. Assurance
Corp., 445 F.2d 1278, 1280 (5th Cir.
1971). “The statutory standard for
determining whether an ‘actual controversy' exists
within the meaning of the Declaratory Judgment Act is the
same as that under the ‘case or controversy'
requirement of the Constitution.” Hendrix v.
Poonai, 662 F.2d 719, 721 (11th Cir. 1981); see also
Provident Life & Accident Ins. Co. v.
Transamerica-Occidental Life Ins. Co., 850 F.2d 1489,
1491 (11th Cir. 1988) (“the jurisdictional limits under
the Declaratory Judgment Act mirror those found [in the]
Constitution …”). Accordingly, because the
“actual controversy” requirement is
jurisdictional, “a threshold question in an action for
declaratory relief must be whether a justiciable controversy
exists.” U.S. Fire Ins. Co. v. Caulkins Indiantown
Citrus Co., 931 F.2d 744, 747 (11th Cir. 1991).
Article III case or controversy requirement sets fundamental
limits on the federal judiciary's power in our
society.” Malowney v. Fed. Collection Deposit
Grp., 193 F.3d 1342, 1346 (11th Cir. 1999). Notably,
“[o]ne of the most important . . .
constitutionally-based limits is the requirement that a
litigant have ‘standing' to invoke the power of a
federal court.” Id. In order to establish
standing for purposes of Article III, a plaintiff must show,
at “an irreducible minimum[, ]” first, that
“he has suffered an injury in fact that is (a) concrete
and particularized and (b) actual or imminent, not
conjectural or hypothetical;” second, that “the
injury is fairly traceable to conduct of the
defendant;” and third, that “it is likely, not
just merely speculative, that the injury will be redressed by
a favorable decision.” Kelly v. Harris, 331
F.3d 817, 819-20 (11th Cir. 2003) (citing Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)).
Notably, “[w]here the plaintiff seeks declaratory or
injunctive relief, . . . the injury-in-fact requirement
insists that a plaintiff ‘allege facts from which it
appears there is a substantial likelihood that he will suffer
injury in the future.'” Strickland v.
Alexander, 772 F.3d 876, 883 (11th Cir. 2014) (citing
Malowney, 193 F.3d at 1346). That is,
“‘[i]njury in the past . . . does not support a
finding of an Article III case or controversy when the only
relief sought is a declaratory judgment.'”
Interstate Fire & Cas. Co. v. Kluger, Peretz, Kaplan
& Berlin, P.L., 855 F.Supp.2d 1376, 1380 (S.D. Fla.
2012) (quoting Malowney, 193 F.3d at
insurance context, “[w]here an insurer has already paid
out a claim under its policy, and seeks contribution from a
co-insurer for the expense, declaratory relief concerning the
priority of the insurers' policies is unavailable because
such declaratory relief concerns only past events, not future
injury.” Hous. Enter. Ins. Co v. Amtrust Ins. Co.
of Kan., Inc., 212 F.Supp.3d 1330, 1338 (N.D.Ga. 2016);
see also Twin City Fire Ins. Co. v. Hartman, Simons &
Wood, LLP, 609 F. App'x 972, 979 (11th Cir. 2015)
(finding that the allocation of costs as between two insurers
became moot upon payment of the settlement because “a
declaration could not have had any bearing on the
parties' future conduct.”); Interstate
Fire, 855 F.Supp.2d at 1380. In Count I of the
Counterclaim, Penn National asks the Court to declare the
parties' rights and obligations with respect to a claim
that Penn National has already paid. Id.
¶¶ 44, 54. Based on the injury in fact rule, the
Court questions whether it has subject matter jurisdiction
over Count I of the Counterclaim. The Court will set a
hearing to address this issue, as well as to resolve the
issues raised in the Motion. Accordingly, it is
This matter is set for a HEARING on
Plaintiff National Trust Insurance Company's Motion to
Dismiss or, in the Alternative, Strike Portions of
Defendant's Amended Counterclaim [DKT. 029] (Doc.
30) on Thursday, March 8, 2018, at 2:00
p.m. before the undersigned at the Bryan Simpson
United States Courthouse, 300 North Hogan Street,
Jacksonville, Florida, 32202, in Courtroom 10B. 
 In Bonner v. City of
Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all
the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
 Notably, in Interstate, the
court dismissed an insurer's claims for declaratory
relief due to lack of standing, even though the insurer also
asserted separate claims for indemnification and
contribution. Interstate Fire, 855 F.Supp.2d at
See also Nat'l Union Fire
Ins. Co. of Pittsburgh, PA v. Int'l Wire Grp., No.
02 Civ. 10338(SAS), 2003 WL 21277114, at *5 (S.D.N.Y. June 2,
2003) (finding a declaratory judgment inappropriate where an
insurer did “not seek a prospective determination of
its rights and responsibilities under the insurance contract
(so that it can avoid future damages), but rather a finding
that it is not liable for damages alleged to have already
All persons entering the
Courthouse must present photo identification to the Court
Security Officers. Attorneys may bring cell phones, laptop
computers, and similar electronic devices into the Courthouse
upon presentation of a Florida Bar card or Order of special
admission pro hac vice. See General Order, Doc. 1,