Opinion
Civil Action No: 99-3359 SECTION: "R"(3)
August 21, 2000
Before the Court is defendant Fire Insurance Exchange's unopposed motion to dismiss without prejudice plaintiff Kimberly Ann Bilger's complaint pursuant to Federal Rule of Civil Procedure 12(b)(1). For the following reasons, defendant's motion is granted.
Federal Rule of Civil Procedure 12(b)(1) governs challenges to a court's subject matter jurisdiction. "A case is properly dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case." Home Builders Ass'n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 1998) (quoting Nowak v. Ironworkers Local 6 Pension Fund, 81 F.3d 1182, 1187 (2d Cir. 1996)). "Courts may dismiss for lack of subject matter jurisdiction on any one of three bases: (1) the complaint alone; (2) the complaint supplemented by undisputed facts in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986) (citing Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir. 1981)) Furthermore, the plaintiff bears the burden of demonstrating that subject matter jurisdiction exists. See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981).
When examining a factual challenge to subject matter jurisdiction under Rule 12(b)(1), which does not implicate the merits of plaintiff's cause of action, the district court has substantial authority "to weigh the evidence and satisfy itself as to the existence of its power to hear the case." Garcia v. Copenhaver, Bell Assocs., 104 F.3d 1256, 1261 (11th Cir. 1997). See also Clark, 798 F.2d at 741. Accordingly, the court may consider matters outside the pleadings, such as testimony and affidavits. See Garcia, 104 F.3d at 1261. Moreover, a court's dismissal of a case for lack of subject matter jurisdiction is not a decision on the merits, and the dismissal does not prevent the plaintiff from pursuing the claim in another forum. See Hitt v. City of Pasadena, 561 F.2d 606, 608 (5th Cir. 1977).
Fire Insurance Exchange argues that the Court lacks subject matter jurisdiction because the United States Supreme Court declared the Violence Against Women's Act unconstitutional and there is no diversity of citizenship. The Court agrees.
As defendant correctly notes, the United States Supreme Court declared the Violence Against Women's Act unconstitutional on May 15, 2000. See United States v. Morrison, ___ U.S. ___ 120 S.Ct. 1740, 1759 (2000). As a result, on plaintiff's motion, the Court struck that claim from her complaint.
Accordingly, the only remaining basis for federal jurisdiction was diversity of citizenship pursuant to 28 U.S.C. § 1332. It is axiomatic, however, that for subject matter jurisdiction based on diversity of citizenship, diversity must be complete. See Strawbridge v. Curtiss, 7 U.S. (3 Cranch.) 267 (1806). To determine the citizenship of an artificial entity, other than a corporation, a court must consider "each of the entity's constituent members." Temple Drilling, Co. v. Louisiana Ins. Guar. Ass'n, 946 F.2d 390, 393 (5th Cir. 1991) (citing Carden v. Arkoma Assocs., 494 U.S. 185, 195, 110 S.Ct. 1015, 1021 (1990)). See also Aetna Cas. Sur. Co. v. Hillman, 796 F.2d 770, 775 (5th Cir. 1986) ("If the group is an unincorporated association, then the citizenship of each member must be considered in determining diversity jurisdiction." (citing Navarro Savings Ass'n v. Lee, 446 U.S. 458, 461, 100 S.Ct. 1779, 1782 (1980))). Here, Fireman's Insurance Exchange is a reciprocal or interinsurance exchange, which is treated as an unincorporated association for the purposes of determining diversity jurisdiction. See, e.g., R.E. Arbuthnot v. State Auto. Insurance Ass'n, 264 F.2d 260, 261 (10th Cir. 1959); Tuck v. United States Auto. Ass'n, 859 F.2d 842, 844 (10th Cir. 1989) In a reciprocal or interinsurance exchange, members undertake to insure each other by a mutual exchange of insurance contracts. "A short definition is that the members are both the insures and the insureds." R.E. Arbuthnot, 264 F.2d at 261 n. 1. As Fireman's explains in an affidavit attached to its motion, some of its subscribers reside in the State of Tennessee. ( See Pflug Aff. at 2.) Accordingly, as plaintiff also is a resident of Tennessee, there is no complete diversity, and this Court lacks subject matter jurisdiction. Therefore, the Court grants defendant Fire Insurance Exchange's motion to dismiss plaintiff's suit without prejudice.