United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
E. JOHNSTON, UNITED STATES DISTRICT JUDGE
before the Court are Motions to Dismiss filed by Defendant
Tayworsky LLC, (ECF No. 14), and Defendant Keona Brock, (ECF
No. 20). For the reasons that follow, both motions are
a declaratory judgment action, in which Plaintiff Capitol
Specialty Insurance Corporation seeks a determination of its
liability insurance coverage with respect to Defendant Keona
Brock's state tort suit pending against Defendant
Tayworsky LLC, d/b/a/ Monkey Barrel Bar
(“Tayworsky”). Plaintiff seeks a declaration that
it has no duty to defend or indemnify Tayworsky in that
operates a bar in downtown Charleston, West Virginia.
Brock's claims against Tayworsky arise from a gunshot
wound she suffered while patronizing the bar on July 4,
2015. In a civil action pending in the Circuit
Court of Kanawha County, West Virginia, Brock alleges that
Tayworksy proximately caused her injury by failing to provide
adequate security. At the time of the shooting, Tayworsky was
covered by a general commercial liability insurance policy
issued by Plaintiff. Tayworsky has requested that Plaintiff
provide a defense and indemnification under the policy and
Plaintiff has done so, subject to a reservation of rights.
November 23, 2016, Plaintiff initiated this proceeding under
the federal Declaratory Judgment Act (“DJA”).
Plaintiff invokes the Court's diversity jurisdiction by
alleging complete diversity and an amount in controversy
exceeding $75, 000. An Amended Complaint filed January 3, 2017
is now the operative pleading in this matter. Plaintiff
claims that two clauses in the policy-an assault and battery
exclusion and a liquor liability exclusion-exclude coverage
for any injuries suffered by Brock and Tate. Tayworsky moved
to dismiss on January 12, 2017, arguing that Plaintiff fails
to establish the requisite amount in controversy and,
alternatively, that the Court should abstain from hearing
this dispute. Plaintiff responded in opposition to the motion
and Tayworsky elected not to file a reply. On January 30,
2017, Brock filed a separate motion for dismissal. In a
single-page motion lacking a supporting memorandum, Brock
joins in Tayworksy's request for
abstention. Plaintiff filed a memorandum opposing
Brock's motion. The deadline for Brock's reply having
expired, both motions are ready for disposition.
Court addresses Tayworsky's challenge to subject matter
jurisdiction before considering its arguments in support of
abstention. Though Brock also moves for dismissal on
abstention grounds, she simply incorporates Tayworsky's
arguments by reference and offers none of her own. The Court
thus disregards Brock's motion for purposes of its
motion to dismiss an action under Rule 12(b)(1) raises the
question of the federal court's subject matter
jurisdiction over the action. Adams v. Bain, 697
F.2d 1213, 1219 (4th Cir. 1982). “Challenges to
jurisdiction under Rule 12(b)(1) may be raised in two
distinct ways: ‘facial attacks' and ‘factual
attacks.'” Adkins v. United States, 923
F.Supp.2d 853, 856 (S.D. W.Va. 2013) (citing Thigpen v.
United States, 800 F.2d 393, 401 n. 15 (4th Cir. 1986)).
A “facial attack” questions whether “the
allegations of the complaint are facially sufficient to
sustain the court's jurisdiction.”
Thigpen, 800 F.2d at 401 n. 15. In such a case, the
court must accept the allegations as true and proceed to
consider the motion as it would a motion to dismiss for
failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). Id.
argues that Plaintiff fails to allege facts sufficient to
establish subject matter jurisdiction, not that
Plaintiff's jurisdictional allegations are untrue.
See Adams, 697 F.2d at 1219 (distinguishing between
facial and factual attacks). The Court construes
Tayworsky's challenge to subject matter jurisdiction as a
Amended Complaint invokes the Court's diversity
jurisdiction under 28 U.S.C. § 1332. In this context,
district courts may exercise diversity jurisdiction over a
case if “the matter in controversy exceeds the sum or
value of $75, 000, exclusive of interest and costs . . . and
is between citizens of different States.” 28 U.S.C.
§ 1332(a)(1). Complete diversity exits under § 1332
if no plaintiff is a citizen of the same state as any
defendant. See Rosmer v. Pfizer, 263 F.3d 110, 123
(4th Cir. 2001). Tayworsky does not challenge the existence
of complete diversity.
typical case, “the ‘sum claimed by the plaintiff
controls the amount in controversy.'” JTH Tax,
Inc. v. Frashier, 624 F.3d 635, 638 (4th Cir.2010)
(citing St. Paul Mercury Indem. Co. v. Red Cab Co.,
303 U.S. 283, 288 (1938)). Where a plaintiff claims a sum
sufficient to meet the statutory threshold, dismissal is
appropriate “only if ‘it is apparent, to a
legal certainty, that the plaintiff cannot recover the
amount claimed.” Id. (citing Red Cab
Co. at 289) (emphasis in original). In such a case, the
burden is on the defendant to show “the legal
impossibility of recovery [to] be so certain as virtually to
negative the plaintiff's good faith in asserting the
claim.” Wiggins v. N. Am. Equitable Life Assur.
Co., 644 F.2d 1014, 1017 (citation and internal
quotation marks omitted).
Court's evaluation of the amount in controversy begins
with reference to Plaintiff's Amended Complaint. JTH
Tax, 624 F.3d at 638 (citation omitted). The Amended
Complaint states, without elaboration, that the amount in
controversy is greater than $75, 000. (Am. Compl. ¶ 5.)
Tayworsky challenges that assessment for two reasons. First,
Tayworsky claims that liability for Brock's injuries will
fall principally on the two assailants involved in the
shooting at the bar. Because West Virginia law prohibits
joint liability, W.Va. Code § 55-7-13c(a), and noting
that the assailants are primarily responsible for Brock's
injuries, Tayworsky suggests that the amount of damages for
which it will personally be liable is far less than $75, 000.
Second, Tayworsky argues generally ...