United States District Court, N.D. Mississippi, Aberdeen Division
Court has before it a Rule 12(b)(1) motion to dismiss for
lack of subject matter jurisdiction, Doc. 3, filed by
Defendant Safeway Insurance Company. Plaintiffs have filed no
response, and the time for doing so has passed. Having
considered the motion, the Court finds it should be granted.
complaint alleges that Plaintiffs suffered injuries in an
automobile accident with an uninsured motorist. Compl., Doc.
1 at 3. Plaintiffs now seek to obtain the benefits of their
uninsured motorists' coverage under their insurance
policy with Safeway. The complaint premises jurisdiction on
diversity of citizenship pursuant to 28 U.S.C. § 1332.
It asserts that Plaintiffs, are citizens of Mississippi, and
Safeway is an Illinois corporation. It further asserts that
the amount in controversy is in excess of $75, 000, because
the total policy limit for the occurrence is $150, 000.
Id. at. 2-3.
however, argues that the total policy limit for each
plaintiff is only $75, 000 exactly, and so neither Plaintiff
can meet the amount in controversy requirement. Thus, it
argues, this Court lacks subject matter jurisdiction over the
Motion to Dismiss Standard
12(b)(1) motion allows a party to challenge the Court's
subject matter jurisdiction. "' [A] factual attack
under Rule 12(b)(1) may occur at any stage of the
proceedings, and plaintiff bears the burden of proof that
jurisdiction does in fact exist.'" Arena v.
Graybar Elec. Co., 669 F.3d 214, 223 (5th Cir. 2012)
(quoting Menchaca v. Chrysler Credit. Corp., 613
F.2d 507, 511 (5th Cir. 1980) (citations omitted)).
Fifth Circuit has instructed:
A case is properly dismissed for lack of subject matter
jurisdiction when the court lacks the statutory or
constitutional power to adjudicate the case. In considering a
challenge to subject matter jurisdiction, the district court
is free to weigh the evidence and resolve factual disputes in
order to satisfy itself that it has the power to hear the
case. Thus, under Rule 12(b)(1), the district court can
resolve disputed issues of fact to the extent necessary to
Smith v. Reg'I Transit Auth., 756 F.3d 340, 347
(5th Cir. 2014) (quotation marks and citation omitted). In
ruling on a Rule 12(b)(1) motion to dismiss, the Court can
consider: "(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or
(3) the complaint supplemented by undisputed facts plus the
court's resolution of disputed facts." Tsolmon
v. United States, 841 F.3d 378, 382 (5th Cir. 2016)
(internal quotation marks and citation omitted).
jurisdiction under § 1332 exists when there is (1)
diversity between the parties; and (2) an amount in
controversy in excess of $75, 000, exclusive of interest and
costs. 28 U.S.C. § 1332. Where a plaintiff seeks
compensation under an insurance policy and seeks damages in
excess of the policy limits, "it is the policy limits,
rather than the larger value of the claim, determine the
amount in controversy." Hartford Ins. Grp. v.
Lou-Con Inc., 293 F.3d 908, 911 (5th Cir. 2002) (citing
Payne v. State Farm Mut. Auto. Ins. Co., 266 F.3d
63, 65 (5th Cir. 1959). Here, Plaintiffs assert Safeway is
liable "up to the policy limits" of the policy.
Compl. Doc. 1 at 3. Thus, the Court treats the applicable
policy limits as the amount in controversy.
asserts that the policy limits for each plaintiff are only
$75, 000 exactly, meaning neither Plaintiff can individually
satisfy the amount in controversy requirement.
attached insurance policy covers three automobiles. Policy,
Doc. 3-2 at 1. It provides that the uninsured motorist bodily
injury coverage for each person per automobile is $25, 000.
Plaintiffs assert in their complaint that the amounts must be
stacked to determine the policy limits. Mississippi law
permits insureds to aggregate or "stack" uninsured
motorist coverage by combining "the limits of each
vehicle covered under an insurance policy to pay for damages
sustained in an accident." Harrison v. Allstate Ins.
Co., 662 So.2d 1092, 1093 fn. 1 (Miss. 1995).
stacking the uninsured motorist bodily injury coverage here
results only in a per person limit of $75, 000. In their
complaint, Plaintiffs agree that the per person limit is $75,
000. See Compl., Doc. 1 at 5. Thus, the amount in
controversy for each Plaintiff is exactly $75, 000. This is
an insufficient amount because it is not greater than $75,
000. See 28 U.S.C. § 1332; Wilson v.