United States District Court, E.D. Texas, Marshall Division
GILSTRAP, UNITED STATES DISTRICT JUDGE
above entitled and numbered civil action was referred to
United States Magistrate Judge Roy S. Payne pursuant to 28
U.S.C. § 636. In this action, Defendant Liberty Mutual
Fire Insurance Co. (“Liberty Mutual”) moved to
dismiss Plaintiff Tyrel Mosley's First Amended Class
Action Complaint for lack of subject matter jurisdiction,
arguing that this Court lacked justiciability regarding
standing and ripeness. (Dkt. No. 25). Magistrate Judge Payne
recommended that Liberty Mutual's motion to dismiss be
denied in all respects. (Dkt. No. 58). Liberty Mutual objects
to the Report and Recommendation. (Dkt. No. 63).
Mutual argues that the Report and Recommendation analyzes
Liberty Mutual's “factual attack” on subject
matter jurisdiction under the “facial attack”
standard, and thus Magistrate Judge Payne gave “undue
credence” to Mosley's allegations. (Id. at
3). Liberty Mutual contends that the Report and
Recommendation's conclusions are based solely on
Mosley's unsupported allegations. (Id. at 4).
factual attack is made, the plaintiff, as the party seeking
to invoke jurisdiction must “submit facts through some
evidentiary method and … prov[e] by a preponderance of
the evidence that the trial court does have subject matter
jurisdiction.” Paterson v. Weinberger, 644 F.2d 521,
523 (5th Cir. 1981); see also Doe v. Tangipahoa Parish Sch.
Bd., 494 F.3d 494, 496-97 (5th Cir. 2007) (en banc)
(“Standing to sue must be proven, not merely
asserted.”). In reviewing the factual attack, the Court
has wide discretion to allow affidavits, documents, and even
a limited evidentiary hearing to resolve disputed
jurisdictional facts. See Moran v. Kingdom of Saudi Arabia,
27 F.3d 169, 172 (5th Cir.1994); see also Krim v.
pcOrder.com, Inc., 402 F.3d 489, 494 (5th Cir. 2005) (The
district court is “free to weigh the evidence and
resolve factual disputes … to satisfy itself that it
has the power to hear the case.”). In proceeding under
this standard, the Court reaches the same conclusion as
Magistrate Judge Payne - this Court has subject matter
jurisdiction to hear this case.
analyzing this case, Magistrate Judge Payne made the correct
observation that this lawsuit is not a question of whether
underinsured motorist coverage is in place if Liberty
Mutual's rejection form is invalid. If the form is
invalid, coverage is automatically in place. See Howard v.
INA Cty. Mut. Ins. Co., 933 S.W.2d 212, 218 (Tex. App. 1996),
writ denied (June 12, 1997). Liberty Mutual appears to argue
that even if coverage is in place, Mosley's damages for
alleged past injuries do not exceed the alleged underinsured
motorist's insurance policy limit because Mosley only
incurred $515 in medical expenses so far. (Dkt. No. 25 at
8-9). Thus, according to Liberty Mutual, Mosley has not
suffered an injury-in-fact and therefore lack standing.
Mutual simply points to the fact that Mosley has returned to
work and only incurred $515 in medical. As Magistrate Judge
Payne specifically noted, “Liberty Mutual points to
medical bills that Mosley has produced so far without
accounting for other bills Mosley may produce and ignores
Mosley's other alleged expenses - physical therapy,
counseling, and lost wages.” (Dkt. No. 58 at 5).
Indeed, in its motion, Liberty Mutual expressly acknowledge
that it has “not been provided, as [of] the date of
[the] Motion, any billing records for Plaintiffs physical
therapy sessions between May 24 and June 25, 2018.”
(Dkt. No. 25 at 4 n. 3). Mosley attached a declaration to his
response detailing his lost earnings as $3, 030.55 and
charges for physical therapy as exceeding $11, 000. (See Dkt.
No. 34-3). Mosley also noted that he received treatment at
Longview Occupational Medicine Clinic and saw a counselor.
(Id.). In weighing the evidence, the Court finds
that Liberty Mutual's evidence is insufficient to show
that Mosley lacks standing and that Mosley's complaint
and declaration show that he has suffered an injury-in-fact.
In the same vein, the Court agrees with Magistrate Judge
Payne's conclusions regarding Liberty Mutual's
ripeness and “disclaimer” arguments - these
arguments are unavailing and do not comport with established
Court therefore concludes Magistrate Judge Payne's Report
and Recommendation (Dkt. No. 58) is correct. The Court ADOPTS
Magistrate Judge Payne's recommendation and OVERRULES
Liberty Mutual's objections (Dkt. No. 63). Liberty