H. RUSSEL HOLLAND, District Judge.
Defendants the Estate of Maia Grace Elizabeth Walker and Kelly Colleen McGann move to dismiss plaintiff's complaint.
Plaintiff is Allstate Insurance Company. Defendants are the Estate of Maia Grace Elizabeth Walker, Kelly Colleen McGann, and Jeffery Walker.
Plaintiff alleges that Maia Walker committed suicide on July 21, 2018, at the home of her father, Jeffery Walker.
Plaintiff alleges that it had "issued a homeowners insurance policy to [Jeffery] Walker as the named insured (Policy No. 920452027)" that was in effect at the time of Maia Walker's death.
Plaintiff alleges that it "does not owe a duty to indemnify [Jeffery] Walker under the terms of the Allstate Policy because coverage is excluded for Maia's intentional acts."
On March 6, 2019, plaintiff commenced this declaratory judgment action. Plaintiff alleges that this court has diversity jurisdiction because it is an Illinois corporation and the defendants are all residents and citizens of Alaska.
The Estate and McGann (referred to hereinafter as defendants) now move to dismiss plaintiff's complaint, arguing that the court lacks subject matter jurisdiction and that there is coverage under the policy in question for Maia Walker's wrongful death.
Although defendants do not cite to any authority as the basis of their motion to dismiss for lack of subject matter jurisdiction, such a motion is brought pursuant to Rule 12(b)(1), Federal Rules of Civil Procedure. "A Rule 12(b)(1) jurisdictional attack may be facial or factual."
Defendants first argue that there is not diversity jurisdiction here because plaintiff can be considered a citizen of "every State and foreign state of which the insured is a citizen[.]" 28 U.S.C. § 1332(c)(1)(A). Because Jeffery Walker, the insured, is a citizen of Alaska, defendants argue that plaintiff can also be considered a citizen of Alaska, which would destroy diversity jurisdiction.
However, Section 1332(c)(1) only applies "in any direct action against the insurer of a policy or contract of liability insurance, . . . to which action the insured is not joined as a party[.]" "`[A] direct action is one in which a plaintiff is entitled to bring suit against the tortfeasor's liability insurer without joining the insured.'"
Defendants next argue that this court lacks subject matter jurisdiction based on a provision in the insurance policy. Jeffery Walker's policy contains an Alaska Amendatory Endorsement, which, in relevant part, provides:
Defendants argue that they are not parties to the policy and that they did not consent to suit in federal court, which they contend means that this case may not be maintained in this court.
This policy provision does not state that persons not parties to the policy must consent in order for a suit to be maintained in Alaska federal court. Rather, it states that a suit involving persons who are not parties to the policy may be brought in Alaska federal court if those persons
Defendants next argue that it is possible that Maia Walker was not alone at the time of her death, which, according to defendants, means that there may potentially be other persons who would need to be joined in a wrongful death action. Defendants seem to be suggesting that the court does not have subject matter jurisdiction because there may be some as yet to be identified indispensable parties.
Defendants are not suggesting that there are other parties who might need to be joined to this action. They are suggesting that there are other parties who may need to be joined to a wrongful death action. Whether there may be other parties who will need to be joined to a wrongful death suit has nothing to do with whether this court has subject matter jurisdiction of this declaratory judgment action. "`[T]he Declaratory Judgment Act does not itself confer federal subject matter jurisdiction but merely provides an additional remedy in cases where jurisdiction is otherwise established.'"
Defendants next appear to argue that this case was untimely removed because plaintiff was on notice of the state probate case in December 2018, but did not file this case until March 6, 2019. Defendants cite to 28 U.S.C. § 1446(b) in support of this argument, which provides, in relevant part, that a "notice of removal of a civil action or proceeding shall be filed within 30 days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based[.]"
This action was not removed from state court. The time limit in Section 1446(b) has no application here.
Defendants next argue that this court has no subject matter jurisdiction because this is a case for wrongful death and such a claim should be adjudicated in state court, not federal court, by McGann, as the personal representative of the Estate. But, this is not a wrongful death suit. It is a declaratory judgment action. Such an action for declaratory relief may proceed in federal court independently of the probate matter opened by the Estate in state court.
Finally, defendants argue that this case should be dismissed because, contrary to plaintiff's assertions, there is coverage under the policy in question for Maia Walker's wrongful death. The court has treated this portion of defendants' motion as a Rule 12(b)(6) motion. "`To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'"
Defendants argue that plaintiff's claim for declaratory relief fails because it is possible that Maia Walker's death was not a suicide and thus was not an intentional act. Defendants also appear to be arguing that plaintiff's claim fails because no policy exclusions apply here because neither McGann nor the Estate could be considered "insureds" under the policy. These, however, are factual arguments that cannot be resolved on a Rule 12(b)(6) motion to dismiss.
Defendants' motion to dismiss is denied. Defendants shall file their answer to plaintiff's complaint on or before May 28, 2019.