The opinion of the court was delivered by: Honorable Janis L. Sammartino United States District Judge
ORDER (1) GRANTING DEFENDANT'S MOTION TO DISMISS THE FIRST CLAIM FOR DECLARATORY JUDGMENT; (2) GRANTING DEFENDANT'S MOTION TO STRIKE; AND (3) GRANTING DEFENDANT'S MOTION TO STAY (ECF No. 34)
Presently before the Court is Defendant Tokio Marine and Nichido Fire Insurance Co., Ltd.'s ("Defendant") motion to dismiss the first cause of action, motion to strike, and motion to stay. (Mot. to Dismiss, ECF No. 34) Also before the Court is Plaintiff National Union Fire Insurance Company of Pittsburgh, PA's ("Plaintiff") response in opposition, (Resp. in Opp'n, ECF No. 36), and Defendant's reply, (Reply in Supp., ECF No. 37).
This Order incorporates by reference the facts as set forth in this Court's February 1, 2011 Order granting Defendant's motion to dismiss. (Order, ECF No. 19) In short, both Plaintiff and Defendant are insurers of Bob Baker Lexus ("the insured"). (Am. Compl. ¶¶ 18--21, ECF No. 33) The insured is presently a named defendant in a state court action alleging negligence, (id. ¶¶ 12--14), and the instant suit concerns the respective obligations of Plaintiff and Defendant to defend and indemnify their mutually insured.
In its February 1, 2011 Order, the Court held that Plaintiff lacked standing to assert a cause of action for declaratory judgment because the complaint failed to allege an injury sufficient to confer Article III standing. (Order2--3, ECF No. 19) Subsequently, Plaintiff filed a motion to alter or amend and/or grant relief from order. (Mot. to Amend, ECF No. 22) The Court granted Plaintiff leave to amend to file the instant amended complaint. (Order, ECF No. 32).
Defendant moves to strike the allegation in Plaintiff's amended complaint stating that Tokio Marine "was a corporation duly organized and existing under and by virtue of the laws of the State of New York." (Am. Compl. ¶ 2, ECF No. 33) Plaintiff does not oppose Defendant's motion to strike as the allegation was "inadvertently included" in the amended complaint. (Resp. in Opp'n, ECF No. 36). Thus, the Court GRANTS Defendant's motion to strike the allegation pursuant to Federal Rule of Civil Procedure 12(f).
MOTION TO DISMISS PURSUANT TO 12(b)(1)
The Declaratory Judgment Act states that "[i]n a case of actual controversy within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal relations of any interested party seeking such declaration." 28 U.S.C. § 2201(a). In order to award declaratory relief, the Court must first determine whether there is "a case of actual controversy." Id.; see also Wickland Oil Terminals v. Asarco, Inc., 792 F.2d 887, 893 (9th Cir. 1986). This requirement is "identical to the Article III's constitutional case or controversy requirement." Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994) (citing Societe de Conditionnement en Aluminum v. Hunter Eng'g Co., 655 F.2d 938, 942 (9th Cir. 1981)).
Because standing "pertain[s] to a federal court's subject-matter jurisdiction under Article III, [it is] properly raised in a motion to dismiss under Federal Rule of Civil Procedure 12(b)(1), not Rule 12(b)(6)." White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000). " A plaintiff has the burden of establishing the elements required for standing . . . ." Takhar v. Kessler, 76 F.3d 995, 1000 (9th Cir. 1996); see also In re Dynamic Random Access Memory (DRAM) Antitrust Litig., 546 F.3d 981, 984 (9th Cir. 2008) ("The party asserting jurisdiction bears the burden of establishing subject matter jurisdiction on a motion to dismiss for lack of subject matter jurisdiction.").
Rule 12(b)(1) motions may challenge jurisdiction facially or factually. Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004). "In a facial attack, the challenger asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction. By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id.
Defendant contends that Plaintiff's allegations are insufficient on their face to establish standing. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). The amended complaint differs from the original complaint in one significant way: in the original complaint, the Plaintiff pleaded that its duty to defend had not yet attached, and it was not currently defending Bob Baker Lexus in the underlying action, (Compl., ECF No. 1); conversely, in the amended complaint, Plaintiff pleads that though its duty to defend has not yet attached, "National Union is defending Bob BakerLexus in the underlying action," (Am. Compl. ¶ 22, ECF No. 33). Plaintiff argues that the allegation that it is ...