UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

HANOVER INSURANCE COMPANY

Plaintiff,

v. Case No.: 4:20-cv-00148

FLORIDA COALITION AGAINST 

DOMESTIC VIOLENCE, INC., a

Florida not-for profit corporation; et al,

Defendants.

_______________________________________/

DEFENDANT, FLORIDA COALITION AGAINST DOMESTIC 

VIOLENCE, INC.’S MOTION TO DISMISS THE COMPLAINT, OR 

ALTERNATIVELY, STAY AND MOTION TO ABSTAIN AND 

INCORPORATED MEMORANDUM OF LAW

COMES NOW, the Defendant, FLORIDA COALITION AGAINST 

DOMSETIC VIOLENCE, INC. (“FCADV”), by and through their undersigned 

counsel, files this Motion to Dismiss the Complaint [Doc. 1], or alternatively, Stay 

the Action and a Motion to Abstain pursuant to Fed. R. Civ. P. 12 and Northern 

District Local Rule 7.1, and in support thereof state as follows:

I. INTRODUCTION AND BACKGROUND

The instant action for declaratory relief arises from insurance claims related 

to two underlying lawsuits: Florida Department of Children and Families vs. 

FCADV, Tiffany Carr, Sandra Barnett, Patricia Duarte, Melody Keeth, Laurel 

Lynch, Angela-Diaz-Vidaillet, Shandra Riffey, Donna Fagan, Theresa Beachy, 

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Sheryl Schwab, Lorna Taylor and Penny Morrill, Case No: 2020-CA-0004231, filed 

in the Second Judicial Circuit in and for Leon County Florida (the “FDCF Action”) 

and Office of The Attorney General State of Florida Department of Legal Affairs vs. 

Florida Coalition Against Domestic Violence Inc., Florida Coalition Against 

Domestic Violence Foundation Inc., and Tiffany Carr, Case No: 2020-CA-000437

filed in the Second Judicial Circuit in and for Leon County Florida (the “AG 

Action”) (hereinafter the AG Action and the FDCF Action are collectively referred 

to as the “Underlying Actions”). The Underlying Actions seek damages from 

FCADV arising out of or related to alleged actions by FCADV’s former CEO, 

Tiffany Carr, and various board members. 

Plaintiff, Hanover Insurance Company (hereinafter “Plaintiff” or “Hanover”), 

entered into a contract of insurance with FCADV and issued a Nonprofit Entity 

Advantage Directors & Officers and Entity Liability and Employment Practices 

Liability Policy to the FCADV bearing Policy Number LHJ-H138435-00 with 

effective dates of December 19, 2019 through December 19, 2020 (the “Policy”). 

Plaintiff’s Complaint [Doc. 1] seeks a declaration that it does not owe a duty to 

defend or indemnify FCADV for the claims asserted in the Underlying Actions. 

II. SUMMARY OF ARGUMENT

Plaintiff’s Complaint suffers from several fatal flaws. Although the 

Underlying Actions are in their infancy and thus still pending and ongoing, 

Plaintiff’s Complaint commingles its requests for a declaration as to the duty to 

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defend and indemnify and thus prematurely seeks declarations that it has no duty to 

indemnify FCADV for the claims asserted in the Underlying Actions. As such, this 

Court lacks subject matter jurisdiction over the instant matter because an actual case 

or controversy does not exist until the Underlying Actions are resolved. As discussed 

below, the Court should exercise its broad discretion and dismiss or stay Plaintiff’s

Complaint. A stay is necessary to: prevent the Court from issuing an advisory 

opinion in violation of 28 U.S.C. § 2201; prevent the Court from having to decide 

key factual matters at issue in the Underlying Actions before they ripen; preclude 

the Defendants from taking positions/asserting defenses inconsistent with those 

advocated in the Underlying Actions; and promote efficiency and conserve party and 

judicial resources. 

Moreover, Plaintiff’s Complaint fails to join necessary and indispensable 

parties, including but not limited to Travelers Casualty and Surety Company of 

America (“Travelers”) as well as the underlying claimants – Florida Department of 

Children and Families and the Office of The Attorney General State of Florida 

Department of Legal Affairs. To that end, Defendant, has filed their own state court 

declaratory judgment action that includes all of the necessary and indispensable 

parties, and this Court should abstain from accepting jurisdiction in favor of 

Defendant’s more accurately plead lawsuit. 

III. ARGUMENT

A. THE COURT SHOULD DISMISS OR STAY THIS ACTION 

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BECAUSE HANOVER’S DUTY TO INDEMNIFY IS 

DEPENDENT ON THE RESOLUTION OF THE UNDERLYING 

ACTIONS.

i. Legal Standard 

The Federal Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202, under

which the counts of Hanover’s Complaint1are based, provides that “any court of

the United States ... may declare the rights and other legal relations of any interested

party seeking such declaration....” 28 § 2201. “Since its inception, the Declaratory

Judgment Act has been understood to confer on federal courts unique and

substantial discretion in deciding whether to declare the rights of litigants.” Wilton 

v. Seven Falls Co., 515 U.S. 277, 286 (1995). The United States Supreme Court has

“repeatedly characterized the Declaratory Judgment Act as an enabling Act, which

confers a discretion on the courts rather than an absolute right upon the litigant.” Id.

at 286-87.

A district court always has discretion whether to entertain an action for a

declaratory judgment. Cas. Indem. Exch. v. High Croft Enters., Inc., 714 F. Supp.

1190, 1193 (S.D. Fla. 1989) (citing Brillhart v. Excess Ins. Co., 316 US 491 (1942)

and Public Affairs Assocs., Inc. v. Rickover, 369 U.S. 111 (1962)); see also Angora 

Enters., Inc. v. Condo. Ass’n. of Lakeside Village, Inc., 796 F.2d 384, 387 (11th Cir. 

1986) (“[T]he district court could have properly refused to address the merits of the 

 

1 Counts I, II and III all explicitly state “Declaratory Judgment” See [Doc. 1, pg. 26-27].

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claim by resort to its inherent discretion to decline to entertain a declaratory 

action.”). The Eleventh Circuit has declared that the Act “only gives the federal 

courts competence to make a declaration of rights; it does not impose a duty to do 

so.” Ameritas Variable Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005). 

“Gratuitous interference with the orderly and comprehensive disposition of a state 

court litigation should be avoided.” Id. (citing Brillhart v. Excess Ins. Co. of Am.,

316 U.S. 491, 495 (1942)).

The Act provides that a declaratory judgment may be issued only in the case 

of an “actual controversy,” which must be immediate, substantial and continuing and 

must create a “definite, rather than speculative threat of future injury.” 28 U.S.C. 

§2201 et seq.; Emory v. Peeler, 756 F.2d 1547, 1552 (11th Cir. 1985). The Act is a 

grant of jurisdiction only as to those rights and liabilities that are immediate and real, 

or that are certain to arise. See, e.g., Calderon v. Ashmus, 523 U.S. 740, 746-47 

(1998).

The “case or controversy” requirement of the Constitution that limits federal 

court jurisdiction similarly requires that “a plaintiff must have suffered some actual 

injury that can be remedied or redressed by a favorable judicial decision.” Nat’l 

Advertising Co. v. City of Ft. Lauderdale, 934 F.2d 283, 285-86 (11th Cir. 1991). 

This requirement shields federal courts from being drawn into disputes as to abstract 

or hypothetical cases, or ones in which purely advisory opinions affecting a dispute 

are being sought. See, e.g., Peeler, 756 F.2d at 1551–52 (“The plaintiff must allege 

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facts from which the continuation of the dispute may be reasonably inferred. 

Additionally, the continuing controversy may not be conjectural, hypothetical, or 

contingent; it must be real and immediate, and create a definite, rather than 

speculative threat of future injury.”).

The Court has broad discretion to either dismiss without prejudice or stay 

unripe claims. Pro Net Global Ass’n, Inc. v. U.S. Liab. Ins. Co., Nos. 3:02-cv-396-

J-32TEM, 3:02-cv-617-J- 32TEM, 2004 WL 6062923, at *2 (M.D. Fla. Mar. 8, 

2004) (citing Wilton, 515 U.S. at 288).

ii. A Dismissal or Stay of this Action is the Appropriate Remedy

As stated above, Hanover seeks in Count 3 of the Complaint declarations 

regarding its duty to indemnify FCADV and others in the Underlying Actions. 

Hanover’s request for such declarations is improper at this time as the Underlying 

Actions are currently ongoing. See Exhibit 1, Dockets to Underlying Actions.2 The 

Underlying Actions are still in the very early stages as the parties have filed motions 

to dismiss which are still pending. Thus, the allegations alleged in the Underlying 

Actions are still very much unsettled and changing. 

 

2 FCADV requests that this Court take judicial notice of the dockets of the Underlying Actions. 

See Fed. R. Evid. 201(d)(“The court may take judicial notice at any stage of the proceeding.”) 

Federal Rule of Evidence 201 permits courts to take judicial notice of “a fact that is not subject to 

reasonable dispute because it[] . . . can be accurately and readily determined from sources who 

accuracy cannot reasonably be requested. “[M]atters of public record,” whose accuracy cannot be 

reasonably quested, may be judicially noticed. Bryant v. Avado Brands, Inc., 187 F.3d 1271, 1277-

78 (11th Cir. 1999).

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The duty to indemnify is separate and distinct from the duty to defend. 

Northland Cas. Co. v. HBE Corp., 160 F. Supp. 2d 1348, 1360 (M.D. Fla. 2001). 

The duty to defend is broader than the duty to indemnify and depends “‘solely on 

the allegations in the complaint[s] filed against the insured.’” Id. “[T]he duty to 

indemnify is dependent upon the entry of a final judgment, settlement, or a final 

resolution of the underlying claims by some other means.” HBE Corp., 160 F. Supp. 

2d at 1360; see also Westport Ins. Corp. v. VN Hotel Grp., LLC, 761 F. Supp. 2d 

1337, 1348 (M.D. Fla. 2010) (“Except where there is no duty to indemnify for want 

of a duty to defend, an insurer’s duty to indemnify is dependent on the outcome of a 

case . . .”). “[W]hereas the duty to defend is measured by the allegations of the 

underlying complaint, the duty to indemnify is measured by the facts as they unfold 

at trial or are inherent in the settlement agreement.” HBE Corp., 160 F. Supp. 2d at 

1360; see also Stephens v. Mid-Continent Cas. Co., 749 F.3d 1318, 1324 (11th Cir. 

2014) (an insurer’s duty to indemnify “is narrower [than the duty to defend] and is 

determined by the underlying facts adduced at trial or developed through discovery 

during the litigation.”; “In other words, to determine whether there is a duty to 

indemnify, one looks at the actual facts, not only those that were alleged in the state 

court complaint.”).

Because an insurer’s duty to indemnify generally depends on the outcome of 

the case against its insured, courts hold the question of an insurer’s duty to indemnify

is not ripe until the underlying suit is resolved, and thus either dismiss or stay the 

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action. See, e.g., Summit Contractors, Inc. v. Amerisure Mut. Ins. Co., No. 8:13-CV295-T-17TGW, 2014 WL 936734 (M.D. Fla. Mar. 10, 2014) (dismissing for lack of 

subject matter jurisdiction pursuant to Rule 12(b)(1) request for declaration as to a 

carrier’s duty to indemnify for pending underlying claims as unripe); Mid-Continent 

Cas. Co. v. G.R. Constr. Mgmt, Inc., 278 F. Supp. 3d 1302 (M.D. Fla. 2017)(finding 

that a request for declaration on the duty to indemnify before the conclusion of the 

underlying state-court action presents no “actual controversy”); Atain Specialty Ins. 

Co. v. Sanchez, No. 8:17-CV-1600-T-23AEP, 2018 WL 1991937 (M.D. Fla. Apr. 27, 

2018)(same result); Mid- Continent Cas. Co. v. Gamma Constr., Inc., et al., No.

16-cv-20928-KING (S.D. Fla. July 6, 2016) (Order) (staying insurer’s request for

a declaration as to its indemnity obligations until the underlying action concludes)

(attached he reto as Exhibit “2”); Investors Ins. Co. of Am. v. Waterproofing

Sys., Inc., et al., No. 11-cv-62624-Middlebrooks (S.D. Fla. Mar. 20, 2012) (Order) 

(same) (attached hereto as Exhibit “3”); The Travelers Prop. Cas. Co. of Am., et

al. v. Anda, Inc., No. 12-cv- 62392-WJZ (S.D. Fla. June 27, 2013) (Order) (same)

(attached hereto as Exhibit “4”); Great Lakes Reinsurance PLC v. Leon, 480 F. 

Supp. 2d 1306 (S.D. Fla. 2007) (staying declaratory judgment action pending 

resolution of underlying action where adjudication of declaratory judgment action 

would involve many of the same arguments and witnesses as the underlying action); 

Smithers Constr. Inc., Inc., 563 F. Supp. 2d at 1348 (staying determination on 

indemnity until the underlying tort liability action was resolved because “[a]n 

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insurer’s duty to indemnify is not ripe for adjudication in a declaratory action until 

the insured is in fact held liable in the underlying suit”); Cincinnati Ins. Co. v.

Franck’s Lab, Inc., et al., No. 5:12-cv-406-Oc-10PRL (M.D. Fla. Sept. 17, 2013)

(Order) (attached hereto as Exhibit “5”) (staying insurer’s request for a declaration

as to its indemnity obligations until the underlying action concludes); Interstate Fire 

& Cas. Co. v. McMurry Constr. Co., Inc., 2017 WL 821746 (M.D. Fla. Mar. 2, 2017) 

(stating “At the outset, the Court notes that, among the district courts in the Eleventh 

Circuit, “[c]ase law is legion for the proposition that an insurer's duty to indemnify 

is not ripe for adjudication unless and until the insured or putative insured has been 

held liable in the underlying action.”); Mid-Continent Cas. Co. v. Gozzo Dev., Inc.,

No. 17-CV-80362, 2017 WL 3578846, at *6 (S.D. Fla. July 19, 2017) (holding the 

“Underlying Action involves complex factual issues that are important for an 

informed resolution of [an insurer’s] claims for declaratory relief” and staying all 

counts seeking the duty to indemnify until the underlying action concluded.).

In Mid-Continent Cas. Co. v. G.R. Constr. Management, Inc., 278 F. Supp. 3d 

1302 (M.D. Fla. 2017), the Middle District found an insurer’s indemnification issue 

not yet ripe for review, and thus was dismissed. The Court stated:

As stated, MCC seeks to clarify its duty to indemnify GRC [the insured], 

but that duty is inherently unclear because the state court has not yet 

decided GRC's liability, if any, in the Underlying Action. Because the 

state court case is ongoing, MCC is concerned with a potential future 

injury that is neither real nor immediate at this time. If GRC is found not 

liable then there is no need for MCC to indemnify it. There is also no 

current “substantial continuing controversy” between MCC and GRC 

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involving “adverse legal interests,” nor is there any considerable 

hardship for MCC if the Court withholds consideration of this issue. 

Continuing the instant action could require the Court to engage in undue 

consideration of an abstract dispute, where the potential for legal 

adversity is contingent upon the ruling of the state court in the 

Underlying Action. Such a speculative exercise by the Court is 

inconsistent with Article III and the Act.

Id. at 1305–06.

For example, in Mid-Continent Cas. Co. v. Nassau Builders, Inc., No. 3:16-

CV-921-J-34JRK, 2017 WL 1191383, (M.D. Fla. Mar. 31, 2017), the Middle 

District of Florida stayed a declaratory action case until the underlying action was 

resolved. Importantly, the court noted that an insurer’s duty to indemnify will 

“necessarily turn on complex factual findings and issues of Florida law which are 

currently pending in the Underlying Action before the state court.” Id. at *2. It 

further noted that in order to resolve the disputed indemnity obligation, the court 

would have to determine whether the claimant “breached any implied warranties, [. 

. .] violated Florida’s Building Code, [. . . .] and breached its duty to use reasonable 

care.” Id. Moreover, the Court reasoned that a decision as to whether one of the 

insurer’s insurance policy exclusions apply would require a complete factual record. 

Id. In doing so, the court stated that the “factual record is incomplete at this time, 

and the instant action is not yet ripe for adjudication.” Id. The court pointed out that, 

as one judge has noted in the Eleventh Circuit, “ ‘[c]ase law is legion for the 

proposition that an insurer's duty to indemnify is not ripe for adjudication unless and 

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until the insured or putative insured has been held liable in the underlying action.’ ” 

Id. at *3 (internal citations omitted). 

Here, there has been no resolution of the Underlying Actions. Rather, the 

Underlying Actions are being actively litigated in state court. Because they are being 

actively litigated, the parties are in the process of ascertaining the facts which will 

be bear on this instant action when a judgment or adjudication of the Underlying 

Actions occurs. This is one of those cases where the indemnity counts should be 

abated until all the underlying facts can be resolved by the state trial courts. 

Accordingly, a determination of Plaintiff’s duty to indemnify is premature and the 

instant proceedings should be stayed as to that issue, or dismissed and allowed to be 

resolved in State Court, a more appropriate venue to ensure the efficient expenditure 

of judicial resources and effective representation of the interests of all parties to this 

litigation.

iii. Allowing the Indemnity Questions to Proceed Would Compel 

this Court to Improperly Consider Factual Matters at Issue 

in the Underlying Actions

Indemnity issues are appropriately dismissed or stayed until the underlying

action is resolved where, as here, a court must decide facts at issue in an

underlying action in order to adjudicate the duty to indemnify in a declaratory

judgment action. See, e.g., Pro Net, 2004 WL 6062923, at *2; Summit, 2014 WL 

936734, at *5-6; Home Ins. Co. v. Gephart, 639 So. 2d 179 (Fla. 4th DCA 1994) 

(affirming trial court’s dismissal of carrier’s declaratory judgment action regarding 

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its duty to indemnify as premature because the action would decide facts at issue in 

the underlying action); Gamma Constr., No. 16-cv-20928-KING; Waterproofing 

Sys., No. 11-cv-61408-Middlebrooks.

Hanover’s indemnity obligations hinge on numerous factual issues that will 

be determined in the Underlying Actions. Hanover requests declarations on many 

different coverage issues implicating numerous factual questions that would be 

adjudicated in the Underlying Actions such as whether Ms. Carr did in fact breach 

her fiduciary duties. See [Doc. 1]. Moreover, the Underlying Actions seek relief 

based on allegations of Fraud, which are all extremely factually dependent causes of

action. As delineated above, Hanover has asked the Court to address a multitude of

coverage issues that implicate factual matters at issue in the Underlying Actions, 

which are central to the issues to be determined in the Underlying Actions. 

Accordingly, adjudicating indemnity in this action will require improper advisory

rulings on dispositive factual questions in the Underlying Actions. See, e.g., Emory,

756 F.2d at 1551–52.

iv. Allowing the Action to Proceed Could Result in Inconsistent 

Outcomes & Prejudice the Parties and Promotes Efficiency

Much of the discovery in this case may ultimately be unnecessary if FCADV 

successfully defends the Underlying Actions. See, e.g., Pro Net, 2004 WL 6062923,

at *2 (dismissing indemnity claim because proceeding could be a waste of judicial

resources if the insured successfully defended the underlying action). Beyond

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expense, such testimony could compromise FCADV’s position and the AG and/or 

FDCF’s ability to recover any judgment it obtains in the Underlying Actions. Doing 

so now, however, compromises FCADV’s defense in the Underlying Actions. 

Florida law directs that Hanover not be permitted to preempt the resolution

of fact issues necessarily involved in the Underlying Actions or remove material

issues from the Underlying Actions “under the guise” of this declaratory judgment

action. See Travelers Ins. Co. v. Emery, 579 So. 2d 798, 801 (Fla. 1st DCA 1991);

Gamma Constr., No. 16-cv-20928-KING, at 5 (refusing to allow MCC to prevent

the state court from resolving key factual issues involved in the underlying action,

finding as follows: “This Court, seeking to avoid friction between our federal and

state courts, finds that this declaratory action would improperly encroach on the

state’s jurisdiction to find these facts.”).

Staying Hanover’s Complaint until the Underlying Actions are resolved is

also consistent with principles of judicial economy. If FCADV, the Board 

Members/Former Directors, as well as the AG and FDCF, are forced to litigate the

indemnity issues now, the Court will be required to consider factual issues that are

also being litigated in the Underlying Actions. It would be inefficient for the parties

to be compelled to expend resources to litigate many of the same comprehensive

and complex issues in two different cases before two different courts, with

potentially inconsistent results. Thus, in the interest of judicial economy, Hanover’s 

complaint should be dismissed or stayed.

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B. THIS COURT SHOULD DISMISS THE PLAINTIFF’S COMPLAINT 

FOR FAILURE TO JOIN INDISPENSABLE PARTIES

i. Dismissal is the Appropriate Remedy for Failure to Join Necessary 

and Indispensable Parties 

Federal Rule of Civil Procedure 12(b)(7) provides that courts may dismiss 

suits where the plaintiff fails to join an indispensable party and the defendant raises 

the defense by motion. To determine whether a court should dismiss an action for 

failure to join an indispensable party, courts apply the criteria set forth in FED. R.

CIV. P. 19. See Challenge Homes, Inc. v. Greater Naples Care Center, Inc., 669 

F.2d 667, 669 (11th Cir. 1982); see also FED. R. CIV. P. 19(a)(1)(A) and 19(a)(1)(B). 

Federal Rule of Civil Procedure 19 sets forth a two-step inquiry for a district court 

to determine whether a party should be joined in an action. First, the district court 

must determine whether the party is “necessary” to the action under Rule 19(a). 

Focus on the Family v. Pinellas Suncoast Transit Auth., 344 F.3d 1263, 1280 (11th 

Cir. 2003); Challenge Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 

669 (11th Cir.1982). If the court determines that the party is “necessary,” it must 

then determine whether the party is “indispensable” to the action under Rule 19(b). 

See id. The purpose of requiring all parties to be joined is to avoid duplicative 

litigation. Southern-Owners Ins. Co. v. Wall 2 Walls Constr., LLC, 2012 WL 

6009752 (M.D. Fla. 2012); Capitol Specialty Ins. Corp. v. R.G. Rancho Grande 

Corp., 2010 WL 1541187 (S.D. Fla. 2010); Amerisure Ins. Co. v. R.L. Lantana 

Boatyard, Ltd., 2010 WL 4628231 (S.D. Fla. 2010); and Balfour Beatty Const. Co., 

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LLC v. Zurich Am. Ins. Co., 2014 WL 1230650 (M.D. Fla. 2014).

ii. Travelers, the AG and FDCF are Necessary Parties 

FED. R. CIV. P. 19(a) states as follows: 

(a) Persons Required to Be Joined if Feasible.

(1) Required Party. A person who is subject to service of process and 

whose joinder will not deprive the court of subject-matter jurisdiction 

must be joined as a party if:

(A) in that person's absence, the court cannot accord complete relief 

among existing parties; or

(B) that person claims an interest relating to the subject of the action 

and is so situated that disposing of the action in the person's absence 

may:

(i) as a practical matter impair or impede the person's ability to 

protect the interest; or

(ii) leave an existing party subject to a substantial risk of 

incurring double, multiple, or otherwise inconsistent obligations 

because of the interest.

Fed. R. Civ. P. 19(a); Balfour Beatty Const., LLC v. Zurich Am. Ins. Co., No.2:13-

CV-205-FTM-38, 2014 WL 1230650, at *3 (M.D. Fla. Mar. 25, 2014)(citing 

Barbachano v. Standard Chartered Bank Intern. (Americas) Ltd., 2014 WL 29595, 

*4 (S.D.Fla. January 3, 2014)). In insurance disputes, these statutory and rule based 

requirements necessitate that all parties potentially impacted by a coverage 

determination be named in a declaratory judgment action. See Bethel v. Security 

Nat’l. Ins. Co., 949 So. 2d 219, 223 (Fla. 3d DCA 2006). 

The principle of res judicata as it relates to binding third-parties to declaratory 

judgments is well established. Independent Fire Ins. Co. v. Paulekas, 633 So. 2d 

1111, 1113 (Fla. 3d DCA 1994) (“A declaratory action obtained by an insurer 

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against its insured is not binding on a third-party claimant who was not a party to the 

declaratory judgment action.”); see also Allstate Ins. Co. v. Conde, 595 So.2d 1005, 

1008 (Fla. 5th DCA 1992). The AG and FDCF clearly have interests in this matter 

since their respective Underlying Actions would be prejudiced should Hanover 

prevail in this action. See Capitol Speciality Ins. Corp. v. R.G. Rancho Grande

Corp., 2010 WL 1541187, *1–2 (S.D. Fla. April 16, 2010) (holding “[p]laintiff's 

declaratory judgment action asks the Court to determine whether an exclusion in the 

insurance policy applies such that Plaintiff owes a duty to defend or indemnify the [ 

]Defendants. If the exclusion applies, it could eliminate Plaintiffs' liability in the 

underlying suit.... Therefore, Florida law makes clear that [the plaintiffs in the 

underlying suit] are proper parties in this suit.”); Auto–Owners Ins. Co. v. Emerald

Star Casino & Resorts, Inc., 2009 WL 3446745, *2 (M.D. Fla. Oct.21, 2009) 

(holding that though plaintiffs in the underlying state-court action were not parties 

to the insurance contract, “[a]s the injured parties, [they] have an interest in this 

declaratory judgment action, and their inclusion is permissible under Florida law.”).

The AG and FDCF are the claimants in the Underlying Actions. Hanover has 

failed to name them and the case law is quite clear that they have a significant interest 

in the resolution of this case, and are therefore necessary parties pursuant to the 

analysis set forth in Rule 19(a). Similarly, Travelers is a necessary party in that 

Travelers also issued a Non-Profit Organization Directors & Officers and Identity 

Fraud Expense Reimbursement Policy to the FCADV, bearing Policy Number 

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106433516 with effective dates of December 19, 2019 through December 19, 2020 

(the “Travelers Policy”). FCADV likewise tendered the Underlying Actions to 

Travelers, and Travelers has denied any obligation to defend or indemnify FCADV. 

Given the timing of the events leading up to the filing of the Underlying Actions, it 

is quite clear that at the very least either the Travelers Policy or the Policy issued by 

Hanover (if not both) provide coverage for the claims asserted against FCADV. 

Moreover, the policies have similar provisions and separate, duplicative suits 

involving the same facts and similar policies could result in inconsistent outcomes. 

iii. The AG, FDCF and Travelers are Indispensable Parties Under 

FED. R. CIV. P. 19(b)

If the court concludes that the absent party is necessary, the court “must 

inquire whether, applying the factors in Rule 19(b), the litigation may continue” and 

whether “in equity and good conscience the action should proceed among the parties 

before it, or should be dismissed.” James River v. Dimauro, 258 F.R.D. 543, 544 

(S.D. Fla. 2009) (citing Challenge Homes, Inc., 669 F.2d 667, 669 (11th Cir. 1982)). 

Rule 19(b) sets forth four factors to determine the absent parties indispensability:

(1) the extent to which a judgment rendered in the person’s 

absence might prejudice the person or the existing parties;

(2) the extent to which any prejudice could be lessened or 

avoided by: (A) protective provisions in the judgment; (B) 

shaping the relief; or (C) other measurers;

(3) whether a judgment rendered in the person’s absence 

would be adequate; and

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(4) whether the plaintiff would have an adequate remedy 

if the action were dismissed for nonjoinder.

In his seminal Patterson opinion, Justice Harlan pointed out that Rule 19(b) is 

designed to protect four interests Provident Tradesmens Bank & Tr. Co. v. Patterson,

390 U.S. 102, 111 (1968). The first is the plaintiff's interest in having a forum. Id. 

The second is the defendant's interest in avoiding multiple litigation, inconsistent 

relief, or sole responsibility for a liability he shares with another. Id. The third 

interest belongs to the party that should, but cannot, be joined. Id. That party wishes 

to prevent the proceedings before the court from impairing its rights. Id. The fourth 

interest is that of the courts and the public in “complete, consistent, and efficient 

settlement of controversies.” Travelers Indem. Co. v. Dingwell, 884 F.2d 629, 635 

(1st Cir. 1989)(citing Patterson, 390 U.S. at 111 (1968))(internal citations omitted). 

Factor one directs the court's attention to interests of both present and absent 

parties and, thus, is related to the Rule 19(a)(2)(i) and (ii) inquiries. City of Littleton,

Colo. v. Commercial Union Assur. Companies, 133 F.R.D. 159, 164 (D. Colo. 1990). 

Here, the potential prejudice to those already parties is of concern. The prospect of 

subsequent litigation that might produce inconsistent obligations raises the specter 

of prejudice. Inconsistent obligations are created when two courts issue orders and 

compliance with one would cause a breach of the other. Id. To determine the 

availability of coverage here for the entirety of the claims at issue, the court will 

have to consider whether the allegations as applicable to each named insured or 

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purported insured is covered under the policies. This particularly impacts the duty 

to defend. If one court is left to determine the defense obligation under the policies 

for Travelers, while a separate court is left to determine those owed Hanover alone, 

it is possible the courts would reach different conclusions on these matters thus 

subjecting Travelers, Hanover and the insureds to conflicting orders. See City of

Littleton, Colo., 133 F.R.D. at 164. Similarly, pursuant to Fla. Stat. 627.4136(4), the 

claimants in the Underlying Actions, the AG and FDCF, could come back at a later 

date, after obtaining a judgment against FCADV, seeking insurance coverage under 

both the Hanover and Travelers policies. Thus, if this action is permitted to proceed 

without the AG and FDCF as parties, the declaratory judgment entered would not be 

binding on either the AG or FDCF. RL Lantana Boatyard, Ltd., 2010 WL 4628231, 

*2 (citing Paulekas, 633 So.2d at 1113) (“[a] declaratory action obtained by an 

insurer against its insured is not binding on a third-party claimant who was not a 

party to the declaratory judgment action.”). The legal effect of this Court’s decision 

in this declaratory judgment action could be undermined if the AG and FDCF are 

not bound by this Court’s determinations. Balfour Beatty Const., LLC, 2014 WL 

1230650, at *3.

The second factor could likely only be accomplished by withholding final 

judgment until the obligations to the insureds are determined in a separate action. 

Alternatively, the prejudice could be eliminated by dismissal of this action in favor 

of a state court declaratory judgment action that includes all the parties. Id.; see also

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Dingwell, 884 F.2d 629 (1st Cir. 1989)(holding failure to include additional insureds 

in order to keep diversity warranted dismissal); Rochester Methodist Hosp. v.

Travelers Ins. Co., 728 F.2d 1006, 1017 (8th Cir.1984); 3A Moore's Federal Practice 

¶ 24.18[3]. 

The third factor is related to factor one and a judgment rendered in the absence 

of the missing parties would not be adequate. In evaluating this factor, the Littleton

court noted: 

“[t]he propriety of rendering judgment in these 

circumstances is questionable. This is particularly so 

because of both the possible prejudice that may arise if 

jurisdiction is retained and the inability to shape relief 

adequately. This entire matter can be litigated in a state 

court that could provide a comprehensive remedy. The 

advantages of complete relief in a single forum outweigh 

any slight duplication of time and effort already spent in 

this matter by the parties and this court.”

Littleton, 133 F.R.D at 165. 

The fourth factor effects not only the parties as discussed throughout this 

motion, but also effects the interests of the courts and the public “in a complete, 

consistent and efficient settlement of controversies.” Littleton, 133 F.R.D at 166 

(citing Patterson, 390 U.S. at 111). “[T]he avoidance of piecemeal litigation in favor 

of comprehensive disposition of a dispute, especially where concurrent litigation 

might result in inconsistent dispositions” is an important factor to consider when 

deciding this factor. Travelers Indem. Co. v. Monsanto Co., 692 F. Supp. 90, 91-92 

(D. Conn. 1988). In declaratory judgment actions, the plaintiff has no right to a 

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federal forum. Accident Ins. Co. v. Greg Kennedy Builder, Inc., 2016 WL 379932 

(S.D. Ala. January 29, 2016). The relief sought by Plaintiff can be determined in 

state court just as well as it can in federal court. However, all other parties, joined 

and absent, will have their interests protected should this action proceed in state 

court. Each of the foregoing factors demonstrates the indispensability of Travelers, 

the AG and FDCF. 

C. ALTERNATIVELY, THIS COURT SHOULD DECLINE TO ACCEPT 

JURISDICTION AND ABSTAIN 

To invoke Article III subject matter jurisdiction under the Declaratory 

Judgment Act, 28 U.S.C. § 2201 the plaintiff must allege: (1) a substantial 

continuing controversy between the parties, (2) facts that demonstrate the 

controversy is real and immediate rather than conjectural, hypothetical, or 

contingent, and (3) a definite threat of future injury. E.g. Malowney v. Federal 

Collection Deposit Group, 193 F. 3d 1342, 1347 (11th Cir. 1999)(quoting Emory v. 

Peeler, 756 F. 2d 1547, 1551-52 (11th Cir. 1985)). The Declaratory Judgment Act, 

however, confers discretion upon courts to make a declaration of rights; it does not 

impose an affirmative obligation do so. Brillhart, 316 U.S. at 494. Accordingly, a 

district court, consistent with the nonobligatory nature of the declaratory judgment 

remedy, may exercise its discretion to stay or dismiss an action that seeks a 

declaratory judgment under this enabling act. General Elec. Capital Corp. v. Estate 

of Nunziata ex rel. Nunziata, 2012 WL 1581860, at *3 (M.D. Fla. 2012). 

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The Supreme Court in Brillhart set forth the standard under which a district 

court should consider a motion to dismiss or stay a declaratory judgment action 

during the pendency of a parallel state court action, stating that “it would be 

uneconomical as well as vexatious for a federal court to proceed in a declaratory 

judgment suit where another suit is pending in a state court presenting the same 

issues, not governed by federal law, between the same parties.” Brillhart, 316 U.S. 

at 495. The Eleventh Circuit expanded on Brillhart in Ameritas Variable Life 

Insurance Company v. Roach, 411 F. 3d 1328 (11th Cir. 2005), enunciating nine 

factors to aid district courts in deciding whether to dismiss a declaratory judgment 

action, including:

(1) the strength of the state's interest in having the issues raised in the 

federal declaratory action decided in the state courts; (2) whether the 

judgment in the federal declaratory action would settle the 

controversy; (3) whether the federal declaratory action would serve 

a useful purpose in clarifying the legal relations at issue; (4) whether 

the declaratory remedy is being used merely for the purpose of 

“procedural fencing”—that is, to provide an arena for a race for res 

judicata or to achieve a federal hearing in a case otherwise not 

removable; (5) whether the use of a declaratory action would 

increase the friction between our federal and state courts and 

improperly encroach on state jurisdiction; (6) whether there is an 

alternative remedy that is better or more effective; (7) whether the 

underlying factual issues are important to an informed resolution of 

the case; (8) whether the state trial court is in a better position to 

evaluate those factual issues than is the federal court; and (9) whether 

there is a close nexus between the underlying factual and legal issues 

and state law and/or public policy, or whether federal common or 

statutory law dictates a resolution of the declaratory judgment action.

Ameritas, 411 F. 3d at 1331. None of the enumerated factors are dispositive in 

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determining abstention, but rather, such a determination as to the weightiness of the 

issues presented is at the discretion of the court. Id.; see e.g., Geico Gen. Ins. Co. v. 

Kastenolz, 649 Fed. Appx. 647, 650 (11th Cir. 2016) (unpublished). 

Notably, application of the Ameritas factors is not limited to circumstances 

where a parallel action is pending in state court. First Mercury Ins. Co. v. Excellent 

Computing Distributors, Inc. 648 Fed. Appx. 861, 866 (11th Cir. 2016). That said, 

FCADV has filed their state court declaratory judgment action on June 3, 2020 that 

eliminates all of the defects present in the instant action, i.e. Travelers has been 

added as a party as has the AG and FDCF and the requested declarations are limited 

to the duty to defend for now. Factors one, two, six and seven militate in favor of the 

Court exercising its discretion to abstain. More specifically, factor one supports 

abstention in that all of the parties to the action are Florida citizens except Plaintiff

and Florida law will be applied to the interpretation of the policy. As for factor two, 

the Underlying Actions are still in flux and the declaratory judgment action as 

currently plead will subject the parties to multiple suits. The underlying facts will

ultimately determine Plaintiff’s indemnity obligations, including, but not limited to, 

whether the insureds “engaged in a pattern of serious misconduct and abuse,” which 

included “the diversion of significant funding to enrich its officers to a shocking 

degree” and whether those alleged damages fall within an exclusion in the policy. 

IV. CONCLUSION

WHEREFORE, for the reasons set forth herein, the Defendant, FLORIDA 

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COALITION AGAINST DOMESTIC VIOLENCE, INC., respectfully requests the 

entry of an Order dismissing the Plaintiff’s action with prejudice, or alternatively 

decline to accept jurisdiction, and to award all other relief that this Court deems just 

and appropriate.

REQUEST FOR ORAL ARGUMENT

Pursuant to Local Rule 7.1(K), Pulte hereby respectfully requests oral 

argument on the instant motion. 

CERTIFICATE OF ATTORNEY CONFERENCE 

PURSUANT TO LOCAL RULE 7.1(B)

Pursuant to Local Rule 7.1(B), the undersigned counsel certifies that she has 

conferred with counsel for Plaintiff regarding the relief sought in the instant motion 

and that they were unable to come to an agreement on the relief requested in Pulte’s 

Motion to Dismiss. 

CERTIFICATE OF COMPLIANT WORD LIMIT

Pursuant to Local Rule 7.1(F), the undersigned counsel certifies that this 

Motion contains 5,986 words.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on June 8, 2020, I electronically filed the foregoing 

with the Clerk of Court by using the CM/ECF system, which will send a notice of 

electronic filing to all counsel on the Service List below.

By: /s/ Amanda K. Anderson

Mark A. Boyle

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FBN: 0005886

Amanda K. Anderson

FBN: 0091297

BOYLE, LEONARD & ANDERSON, P.A. 

2050 McGregor Blvd. 

Fort Myers, FL 33901

Telephone: (239) 337-1303

Facsimile: (239) 337-7674

Primary: EService@Insurance-Counsel.com

Secondary #1: MBoyle@Insurance-Counsel.com

Secondary #2: AAnderson@Insurance-Counsel.com

Counsel for Defendant, Florida Coalition Against 

Domestic Violence, Inc.

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