# United States Court **of Appeals**  **f or 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). W e **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 Case: 23-30627 Document: 39-1 Page: 1 Date Filed: 03/13/2024No. 23

- 30627

2 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 allege d 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
p roof 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 violati on 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 Louisi ana 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 domicile d in Louisiana, Defendant argued that the requisite diversity jurisdiction was lacking, requiring dismissal for lack of subject matter jurisdiction under Rule

**_____________________**

1 D efendant became domiciled in Louisiana four months before Williams filed her complaint. Case: 23-30627 Document: 39-1 Page: 2 Date Filed: 03/13/2024No. 23

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3 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 a re 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 j urisdiction 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 co ntroversy 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 dom iciled 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 Case: 23-30627 Document: 39-1 Page: 3 Date Filed: 03/13/2024No. 23

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4 domiciliary.” She asserts that the district co urt 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 clai m 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., bot h 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 ordina rily 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 sol d 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 Case: 23-30627 Document: 39-1 Page: 4 Date Filed: 03/13/2024No. 23

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5 against the company wh ich 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.** Case: 23-30627 Document: 39-1 Page: 5 Date Filed: 03/13/2024