United States Court of Appeals

for the Fifth Circuit ____________

No. 23-30627

Summary Calendar

____________

Annie Williams, 

Plaintiff—Appellant, 

versus

Progressive Property Insurance Company, erroneously 

named as XYZ Insurance Company and Progressive 

Insurance Company, 

Defendant—Appellee. 

______________________________

Appeal from the United States District Court 

for the Western District of Louisiana

USDC No. 2:22-CV-4933

______________________________

Before Davis, Ho, and Ramirez, Circuit Judges.

Per Curiam:*

Plaintiff-Appellant, Annie Williams, appeals the district court’s 

judgment dismissing her complaint without prejudice for lack of subject 

matter jurisdiction under Rule 12(b)(1). We AFFIRM. 

_____________________

* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

March 13, 2024

Lyle W. Cayce

Clerk

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I.

Williams filed a complaint in federal district court alleging that her 

“property located in Lake Charles, Calcasieu Parish, Louisiana 70601” was 

severely damaged by Hurricane Laura in August 2020, and by Hurricane 

Delta in October 2020. She further alleged that the property was insured by 

a homeowner’s and/or flood insurance policy issued by “XYZ” insurance 

company. Williams alleged that she hired an engineer to provide a detailed 

report of the damage; that she provided “Defendant XYZ” with satisfactory 

proof of loss; and that the insurance company inspected the property. She 

alleged that the company, however, failed “to timely and adequately 

compensate” her, breaching its contract with her, and that its handling of her 

claim was “in bad faith” in violation of Louisiana law. She also asserted a 

claim for negligent infliction of emotional distress for the company’s denial 

of her damages. Williams subsequently amended her complaint by naming 

Progressive Insurance Company as the defendant in place of “XYZ” 

insurance company. 

Progressive Property Insurance Company (hereinafter “Defendant”) 

filed a motion to dismiss Williams’s complaint under Rules 12(b)(1) and 

12(b)(6). Defendant contended that there was “no such insurance entity 

registered with the Louisiana Department of Insurance as doing business in 

Louisiana under the name, ‘Progressive Insurance Company,’” and that 

Defendant is domiciled in Louisiana and was domiciled in Louisiana when 

Williams filed her complaint.1

 Because both parties are domiciled in 

Louisiana, Defendant argued that the requisite diversity jurisdiction was 

lacking, requiring dismissal for lack of subject matter jurisdiction under Rule 

_____________________

1 Defendant became domiciled in Louisiana four months before Williams filed her 

complaint. 

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12(b)(1). In her opposition to Defendant’s motion, Williams did not 

challenge Defendant’s status as a Louisiana domiciliary, but contended that 

she should have been notified that Defendant had changed its domicile to 

Louisiana and requested time for “some limited discovery to satisfy the ends 

of justice and fair play.” 

The district court noted that Williams had the burden of proving 

jurisdictional facts and that because Williams raised only state-law claims, 

she was required to show complete diversity of citizenship and an amount in 

controversy greater than $75,000. Because Williams and Defendant are both 

domiciled in Louisiana, the district court determined that diversity 

jurisdiction was lacking and granted Defendant’s motion, dismissing 

Williams’s complaint under Rule 12(b)(1) without prejudice. Williams filed 

a timely notice of appeal. 

II.

We review de novo a district court’s dismissal for lack of subject matter 

jurisdiction. Smith v. Toyota Motor Corp., 978 F.3d 280, 281 (5th Cir. 2020) 

(citations omitted). The party asserting jurisdiction bears the burden of 

proving that subject-matter jurisdiction exists. Greiner v. United States, 900 

F.3d 700, 703 (5th Cir. 2018). Under 28 U.S.C. § 1332(a)(1), a federal court 

may exercise diversity subject-matter jurisdiction over a civil action between 

citizens of different States if the amount in controversy exceeds $75,000. 

Complete diversity must exist, meaning that no plaintiff may be a citizen of 

the same state as any defendant. Flagg v. Stryker Corp., 819 F.3d 132, 136 (5th 

Cir. 2016).

On appeal, Williams does not dispute that Defendant is domiciled in 

Louisiana. She states that she “named the wrong defendant” and that 

“Progressive Corporation, an Ohio domiciliary . . issues Homeowners 

Insurance through Progressive Advantage Agency, Inc., an Ohio 

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domiciliary.” She asserts that the district court should have allowed her 

“limited discovery to determine which Progressive Corporation affiliated or 

unaffiliated insurer issued” an insurance policy to her. She urges this Court 

to reverse and remand so that she can “conduct discovery on the diversity

issue and may amend her complaint to add the proper party defendant.” 

We disagree. First, “a party is not entitled to jurisdictional discovery 

if the record shows that the requested discovery is not likely to produce the 

facts needed to withstand a Rule 12(b)(1) motion.” Freeman v. United States, 

556 F.3d 326, 342 (5th Cir. 2009). In this case, the record clearly showed that 

Defendant was domiciled in Louisiana at the time Williams filed her 

complaint and thereafter. Furthermore, she failed to provide the address of 

the property allegedly damaged and failed to identify an insurance policy 

number. Defendant stated that it attempted to locate a policy it may have 

issued to Williams, but it could not locate one. Defendant further explained 

that the claim number Williams did provide in her opposition memorandum 

was not one that Defendant would have issued. 

Second, Williams did not assert in the district court (as she does on 

appeal) that Progressive Corporation or Progressive Advantage Agency, Inc., 

both allegedly domiciled in Ohio, were involved in her case. Rather, Williams 

contended that at one point Defendant was not domiciled in Louisiana and 

that she should have been “notified of the change in domicile by 

Progressive.” This Court does “not ordinarily consider issues that are 

forfeited because they are raised for the first time on appeal.” Rollins v. Home 

Depot USA, 8 F.4th 393, 398 (5th Cir. 2021). Furthermore, Williams 

presumably has a copy of the insurance policy or access to her agent who sold 

her the policy. She could then check with the Louisiana Secretary of State to 

determine whether that insurance company is a Louisiana domiciliary.

Williams does not explain why she is unable to identify the name of her 

insurer. She does not argue that she is barred from filing suit in the future 

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against the company which insured her, whichever company that might be. 

Regardless, the company named as defendant in this suit is a Louisiana 

domiciliary; therefore, we must affirm for lack of subject matter jurisdiction. 

III.

Based on the foregoing, the district court’s judgment dismissing 

Williams’s complaint without prejudice for lack of subject matter jurisdiction 

is AFFIRMED.

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