United States District Court, S.D. Mississippi.
[Copyrighted Material Omitted]
For Colony Insurance Company, Plaintiff: Graham Ross Pulvere, LEAD ATTORNEY, LLOYD, GRAY, WHITEHEAD & MONROE, PC, Birmingham, AL.
For Ambling Property Investments, LLC, Elton Park, LLC, Stepelana Taylor, Defendants: Thurman L. Boykin, III, William Matthew Vines, PAGE, KRUGER & HOLLAND, P.A., Jackson, MS.
For Tiffany Brown, Individually, Nichlous Brown, by and through his mother and next friend Tiffany Brown, Taneisha Brown, by and through her mother and next friend Tiffany Brown, Defendants: James Ashley Ogden, LEAD ATTORNEY, OGDEN & ASSOCIATES, Jackson, MS.
Tom S. Lee, UNITED STATES DISTRICT JUDGE.
MEMORANDUM OPINION AND ORDER
Defendants Ambling Management Company, LLC, Elton Park, LLC and Stepelana Taylor have filed in this cause a Motion to Dismiss on Grounds of Insufficient Process, Insufficient Service of Process, Lack of Declaratory Authority and Abstention. Plaintiff Colony Insurance Company (Colony) has responded in opposition to the motion. The court, having considered the memoranda of authorities submitted by the parties, concludes the motion should be granted.
Colony filed the present action seeking a declaratory judgment that a policy of liability insurance issued to Ambling Management Company, LLC (Ambling), provides no coverage for claims in a state court lawsuit brought against Ambling by Tiffany Brown. In its motion to dismiss, Ambling first seeks dismissal on the grounds of insufficiency of process and service of process pursuant to Rule 12(b)(4) and (5) of the Federal Rules of Civil Procedure, contending that the summons and complaint incorrectly identified Ambling Property Investments, LLC, as the defendant rather than Ambling Management Company, LLC, so that dismissal was in order for insufficiency of process, and arguing, further, that Colony's attempted service on Ambling via certified mail was not an appropriate method/manner of service under Federal Rule of Civil Procedure 4 and hence was ineffective. Colony responded to plaintiff's objection to the sufficiency of process by filing an amended complaint correctly naming Ambling Management Company as the defendant. Colony further advised that it is in the process of attempting to serve the amended complaint on Ambling and points out that Ambling's request for dismissal at this time is premature, given that Rule 4 gives Colony 120 days to effect service of process. See Omobude v. Miss. Dept. of Finance and Admin., Civil Action No. 3:10CV703TSL-FKB, 2011 WL 346522, 1 (S.D. Miss. Jan. 31, 2011) (stating that " pursuant to Federal Rule of Civil Procedure 4(m), the plaintiff has 120 days from the date the complaint is filed to effect service, and 'until that 120-day period has expired, any attempt to seek dismissal on the grounds of defective service clearly [is] premature.'" ) (quoting McGinnis v. Shalala, 2 F.3d 548, 551 (5th Cir. 1993)).  Colony is correct and therefore, the motion to dismiss on grounds of insufficiency of process and/or service of process is not well taken.
In its motion, Ambling alternatively contends that Colony's complaint is due to be dismissed because this court lacks authority to grant the declaratory relief sought by Colony, or that even if the court has the authority to grant relief, it should abstain from exercising such authority in deference to the underlying state court action.
The Declaratory Judgment Act states: " In a case of actual controversy within its jurisdiction, ... any court of the United States, upon the filing of an appropriate pleading, may declare the rights and other legal relations of any interested party seeking such declaration" . 28 U.S.C. § 2201(a). Unlike other kinds of cases, over which the district courts have a " virtually
unflagging obligation" to exercise their jurisdiction notwithstanding that there is a pending state court action involving the very same issues, see Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 817, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), the Declaratory Judgment Act " has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants," Wilton v. Seven Falls Co., 515 U.S. 277, 286, 115 S.Ct. 2137, 132 L.Ed.2d 214 (1995). See also id. at 288 (stating that " [i]n the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration" ). In Brillhart v. Excess Insurance Company of America, the Supreme Court recognized district courts' discretion to dismiss a declaratory judgment action when a parallel suit not governed by federal law and presenting the same issues is pending in state court, holding that it would be " uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the same issues ... between the same parties." 316 U.S. 491, 495, 62 S.Ct. 1173, 86 L.Ed. 1620 (1942).
The ultimate issue in deciding how the court should exercise its discretion is " whether the questions in controversy between the parties to the federal suit ... can better be settled in the proceeding pending in state court." Brillhart, 316 U.S. at 495. As articulated by the Fifth Circuit, this decision involves three inquiries: " (1) is it justiciable; (2) does the court have the authority to grant such relief; and (3) should it exercise its discretion to decide the action based on the factors stated in St. Paul Insurance Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994)." AXA RE Property & Casualty ...