Rose Cummings v. State Farm Mutual Automobile , 323 F. App'x 847 ( 2009 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
FILED
No. 08-16081 U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
________________________ APRIL 22, 2009
THOMAS K. KAHN
D.C. Docket No. 08-00417-CV-ORL-19-KRS CLERK
ROSE CUMMINGS, on behalf of herself and
all others similarly situated,
Plaintiff-Appellant,
versus
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
________________________
(April 22, 2009)
Before CARNES, HULL, and COX, Circuit Judges.
PER CURIAM:
Rose Cummings filed this putative class action against State Farm Mutual
Automobile Insurance Company. Cummings’s principal allegation is that State Farm
failed to replenish her personal injury protection and medical payment coverages after
State Farm recovered monies that it had wrongfully paid to medical providers.
Cummings sought only declaratory relief. State Farm moved to dismiss, arguing that
Cummings had alleged no injury, and thus had no standing to sue. The district court
agreed, and dismissed the action with prejudice.
Cummings’s Amended Complaint for declaratory judgment does not present
a justiciable controversy. We have held that in actions brought under the Declaratory
Judgment Act, 28 U.S.C. § 2201, “the threshold question is whether a justiciable
controversy exists.” Atlanta Gas Light Co. v. Aetna Cas. and Surety Co., 68 F.3d
409, 414 (11th Cir. 1995) (citations omitted). In declaratory judgment actions, to
show a justiciable controversy, the party invoking federal jurisdiction must allege
facts showing:
at an irreducible minimum, that at the time the
complaint was filed, he has suffered some actual or
threatened injury resulting from the defendant’s
conduct, that the injury fairly can be traced to the
challenged action, and that the injury is likely to be
redressed by favorable court disposition.
Id. (internal quotation marks and citation omitted). The controversy must be “of
sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”
Id. (internal quotation marks and citation omitted).
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In this case, the Amended Complaint does not allege that Cummings has
suffered an actual or threatened injury resulting from State Farm’s conduct, and thus
does not plead a justiciable controversy. The Amended Complaint does not allege
that State Farm has denied any claim filed by Cummings because her benefits were
exhausted; nor does it allege that State Farm has threatened to deny any such claim.
Accordingly, the district court correctly concluded that Cummings failed to allege any
actual or threatened injury.
However, the district court inadvertently dismissed the action with prejudice.
(R.4-46 at 4.) Because the existence of a justiciable controversy is a jurisdictional
requirement, Atlanta Gas Light, 68 F.3d at 414, the district court lacked jurisdiction
and should have dismissed the action without prejudice. See Carter v. Telectron, Inc.,
554 F.2d 1369, 1370 (5th Cir. 1977) (dismissal for want of jurisdiction must be
without prejudice). We therefore vacate the district court’s order dismissing with
prejudice, and remand the case to the district court with instructions to dismiss for
want of jurisdiction.
VACATED AND REMANDED WITH INSTRUCTIONS.
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