United States District Court, E.D. California
MEMORANDUM AND ORDER
MORRISON C. ENGLAND, Jr., District Judge.
Nicole Williams ("Williams") filed this suit
against her insurer, Defendant Horace Mann Insurance Company
("HMIC"), alleging that it breached its obligations
under her insurance policy by failing to pay her theft claim
up to the maximum amount of available coverage. Federal
jurisdiction is premised on diversity of citizenship between
the parties. Currently before this Court is
HMIC's Motion to Dismiss without prejudice for lack of
subject matter jurisdiction (ECF. No. 8), pursuant to Federal
Rule of Civil Procedure 12(b)(1). For the following reasons,
the Motion to Dismiss is GRANTED.
filed for Chapter 7 bankruptcy protection on February 26,
2015. In March, as a part of her bankruptcy proceedings,
Williams submitted documents that reported only $3, 225.00 in
personal property. Effective May 19, 2015, Williams purchased
an insurance policy with HMIC which included personal
property coverage of up of $23, 300.00 for theft. On June 5,
2015, Williams filed a criminal report with the City of
Manteca Police Department alleging her home was burglarized.
She demanded a $23, 500.00 payout from HMIC. HMIC refused on
grounds that the representations Williams made in her
bankruptcy case dictated otherwise. Based on those
representations, HMIC offered to pay only the $3, 225.00
Williams had herself represented as the value of her personal
instant lawsuit alleges that HMIC was contractually obligated
to pay Williams the maximum amount of its available coverage.
As indicated above, Williams invokes the diversity
jurisdiction of this court on grounds that she is a citizen
of the State of California and HMIC's business is located
in the State of Illinois. According to the Complaint,
Williams seeks to recover "the sum of $23, 500.00."
Pl.'s Compl. ¶ 16. Williams also argues that judicial
estoppel should not operate to limit any recovery against her
HMIC policy, and therefore preemptively attacks the validity
of that defense as already raised by HMIC. The Complaint does
not state the judicial estoppel can itself provide the basis
for federal jurisdiction.
now requests, as indicated above, that Williams' case be
dismissed due to lack of subject matter jurisdiction. HMIC
alleges first and foremost that Williams has failed to allege
$75, 000.00 amount in controversy threshold for invoking
diversity jurisdiction. HMIC further argues that judicial
estoppel prevents Williams from recovering, in any event,
more than the amount she claimed her personal property was
worth in bankruptcy. In opposing HMIC's Motion, Williams
completely fails to respond to the argument that she fails to
meet the amount in controversy requirement that must be met,
stating only that this Court "has subject matter
jurisdiction.... to determine whether federal bankruptcy
schedules can be used as judicial estoppel in a later civil
proceeding..." Pl.'s Opp., ECF No. 9-1, 1: 21-23.
courts are courts of limited jurisdiction, and are
presumptively without jurisdiction over civil actions.
Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.
375, 377 (1994). The burden of establishing the contrary
rests upon the party asserting jurisdiction. Id .
Because subject matter jurisdiction involves a court's
power to hear a case, it can never be forfeited or waived.
United States v. Cotton, 535 U.S. 625, 630 (2002).
Accordingly, lack of subject matter jurisdiction may be
raised by either party at any point during the litigation,
through a motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1). Arbaugh v. Y&H Corp., 546
U.S. 500, 506 (2006); see also Int'l Union of
Operating Eng'rs v. Cnty. of Plumas, 559 F.3d 1041,
1043-44 (9th Cir. 2009). Lack of subject matter jurisdiction
may also be raised by the district court sua sponte.
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999). Indeed, "courts have an independent obligation
to determine whether subject matter jurisdiction exists, even
in the absence of a challenge from any party."
Id .; see Fed.R.Civ.P. 12(h)(3) (requiring the court
to dismiss the action if subject matter jurisdiction is
are two types of motions to dismiss for lack of subject
matter jurisdiction: a facial attack and a factual attack.
Thornhill Publ'g Co. v. Gen. Tel. & Elec. Corp.,
594 F.2d 730, 733 (9th Cir. 1979). Thus, a party may either
make an attack on the allegations of jurisdiction contained
in the nonmoving party's complaint, or may challenge the
existence of subject matter jurisdiction in fact, despite the
formal sufficiency of the pleadings. Id.
party makes a facial attack on a complaint, the attack is
unaccompanied by supporting evidence, and it challenges
jurisdiction based solely on the pleadings. Safe Air for
Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).
If the motion to dismiss constitutes a facial attack, the
Court must consider the factual allegations of the complaint
to be true, and determine whether they establish subject
matter jurisdiction. Savage v. Glendale High Union Sch.
Dist. No. 205, 343 F.3d 1036, 1039 n.1 (9th Cir. 2003).
In the case of a facial attack, the motion to dismiss is
granted only if the nonmoving party fails to allege an
element necessary for subject matter jurisdiction.
Id . However, in the case of a facial attack,
district courts "may review evidence beyond the
complaint without converting the motion to dismiss into a
motion for summary judgment." Safe Air for
Everyone, 373 F.3d at 1039.
case of a factual attack, "no presumptive truthfulness
attaches to plaintiff's allegations." Thornill, 594
F.2d at 733 (internal citation omitted). The party opposing
the motion has the burden of proving that subject matter
jurisdiction does exist, and must present any necessary
evidence to satisfy this burden. St. Clair v. City of
Chico, 880 F.2d 199, 201 (9th Cir. 1989). If the
plaintiff's allegations of jurisdictional facts are
challenged by the adversary in the appropriate manner, the
plaintiff cannot rest on the mere assertion that factual
issues may exist. Trentacosta v. Frontier P. Aircraft
Ind., Inc., 813 F.2d 1553, 1558 (9th Cir. 1987) (quoting
Exch. Nat'l Bank of Chi. v. Touche Ross & Co.,
544 F.2d 1126, 1131 (2d Cir. 1976)). Furthermore, the
district court may review any evidence necessary, including
affidavits and testimony, in order to determine whether
subject matter jurisdiction exists. McCarthy v. United
States, 850 F.2d 558, 560 (9th Cir. 1988);
Thornhill, 594 F.2d at 733. If the nonmoving party
fails to meet its burden and the court determines that it
lacks subject matter jurisdiction, the court must dismiss the
action. Fed.R.Civ.P. 12(h)(3).
granting a motion to dismiss a complaint must then decide
whether to grant leave to amend. Leave to amend should be
"freely given" where there is no "undue delay,
bad faith or dilatory motive on the part of the movant, ...
undue prejudice to the opposing party by virtue of allowance
of the amendment, [or] futility of the amendment...."
Foman v. Davis, 371 U.S. 178, 182 (1962);
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d
1048, 1052 (9th Cir. 2003) (listing the Foman factors as
those to be considered when deciding whether to grant leave
to amend). Not all of these factors merit equal weight.
Rather, "the consideration of prejudice to the opposing
party... carries the greatest weight." Id .
(citing DCD Programs, Ltd. v. Leighton, 833 F.2d
183, 185 (9th Cir. 1987)). Dismissal without leave to amend
is proper only if it is clear that "the complaint could
not be saved by any amendment." Intri-Plex Techs. v.
Crest Group, Inc., 499 F.3d 1048, 1056 (9th Cir. 2007)
(citing In re Daou Sys., Inc., 411 F.3d 1006, 1013
(9th Cir. 2005); Ascon Props., Inc. v. Mobil Oil
Co., 866 F.2d 1149, 1160 (9th Cir. 1989) ("Leave
need not be granted where the amendment of the complaint...
constitutes an exercise in futility....")).
undisputed that Williams is a citizen of California and HMIC
is a citizen of Illinois. To satisfy jurisdiction based on
diversity of citizenship, the amount in controversy here must
exceed the sum of $75, 000. See 28 U.S.C. § 1332. If the
amount is unclear, the party invoking jurisdiction must
demonstrate, by a preponderance of the evidence, that the
jurisdictional threshold is in fact met. Valdez v.
Allstate Ins. Co., 372 F.3d 1115, 1118 (9th Cir. 2004)
(citing Matheson v. Progressive Specialty Ins. Co.,
319 F.3d 1089, 1090 (9th Cir. 2003)); see Gaus v. Miles
Inc., 980 F.2d 564, 567 (holding the plaintiff's
conclusory request for the jurisdictional requirement was
insufficient because he plaintiff "offered no facts
whatsoever to support" the court's jurisdiction). If