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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

Case No. 4:20-cv-00148-RH-MAF

HANOVER INSURANCE COMPANY

Plaintiff,

vs.

FLORIDA COALITION AGAINST

DOMESTIC VIOLENCE, INC., et al., 

Defendants. 

______________________________________/ 

DEFENDANT, TIFFANY CARR’S SUPPLEMENTAL MEMORANDUM 

ON JURISDICTION

Defendant, Tiffany Carr, by and through undersigned counsel and pursuant to 

this Court’s Order (ECF No. 37), files this Supplemental Memorandum regarding 

this Court’s jurisdiction in this case. 

INTRODUCTION

A short sixteen days after the State of Florida filed two separate lawsuits 

against the above-named defendants, Plaintiff, Hanover Insurance Company 

(“Hanover”), filed this action in federal court. However, Hanover failed to add an 

indispensable party to this litigation. Binding Eleventh Circuit Precedent provides

that the State of Florida, Department of Children and Families (“DCF”), is an 

indispensable party to this litigation because it is the claimant in the underlying 

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litigation for which Hanover seeks a determination of its duty to defend and 

indemnify.

Because DCF is an agency of the State of Florida, once it is joined, this Court 

will lack subject matter jurisdiction, and this case should be dismissed without 

prejudice so Hanover can pursue its claims in state court.

FACTUAL BACKGROUND

Hanover rushed to Federal Court to seek a determination of its duty to defend 

and duty to indemnify related to two lawsuits, each of which was attached to its 

Complaint (ECF Nos. 1-3, 1-12). Fla. Dep’t of Children & Families v. Fla. 

Coalition Against Domestic Violence, Inc. et al., No. 2020 CA 000431 (Fla. 2d Jud. 

Cir. filed Mar. 4, 2020);’ Office of Att’y Gen, Fla. Dep’t of Legal Affairs v. Fla. 

Coalition Against Domestic Violence, Inc. et al., No. 2020 CA 000437 (Fla. 2d Jud. 

Cir. filed Mar. 4, 2020) (“State Court Liability Lawsuits”). The State Court Liability

Lawsuits were both filed on the same day, and Hanover’s Complaint was filed 

sixteen days later, on March 20, 2020.

The Attorney General’s complaint sought appointment of a Receiver, which 

occurred on March 12, 2020, and since that time, the Receiver has filed his own 

liability lawsuit on behalf of the Coalition against many of the same former officers 

and directors of the Coalition sued in the State Court Liability Lawsuits. Fla. 

Coalition Against Domestic Violence, Inc. v. Carr et al., No. 2020 CA 001187 (Fla. 

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2d Jud. Cir. filed June 22, 2020). In addition, as this Court is aware, the Receiver 

also filed his own coverage lawsuit in state court on behalf of the Coalition—that, 

notably, named all applicable parties—and which Hanover subsequently removed to 

this Court. Fla. Coalition Against Domestic Violence, Inc. v. Hanover Ins. Co. et 

al., No. 20-309 (N.D. Fla. filed June 3, 2020),

Hanover’s lawsuit seeks a determination of its duty to defend the State Court 

Liability Lawsuits, raising various coverage defenses, namely the Prior & Pending 

Litigation/Demand Exclusion, the Policy Application Claim Exclusion, the Policy 

Claim Exclusion, the Fraud Exclusion, the Profit Exclusion, the Contract Exclusion, 

Uninsurable as a Matter of Law, and the Known Loss Doctrine. (ECF No. 1, ¶¶ 89 

– 123). Presumably, if this case were to proceed forward, Hanover would seek to 

amend its complaint to bring the Receiver’s lawsuit within the scope of the 

declaration it seeks. As briefed in Carr’s prior motion to dismiss, many of the factual 

determinations requested in Hanover’s declaratory action will necessarily have to be 

determined in the State Court Liability Lawsuits. (ECF No. 19 at 11-20).

LEGAL STANDARD

A plaintiff’s failure to join an indispensable party consists of a two-part 

analysis under Federal Rule of Civil Procedure 19: (1) whether the person in 

question should be joined; and (2) if the person cannot be joined, whether “in equity 

and good conscience the action should proceed.” Laker Airways, Inc. v. British 

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Airways, PLC, 182 F.3d 843, 847 (11th Cir. 1999). In making the latter analysis, 

four factors must be considered:

(1) how prejudicial a judgment would be to the nonjoined and joined 

parties, (2) whether the prejudice could be lessened depending on the 

relief fashioned, (3) whether the judgment without joinder would be 

adequate, and (4) whether the plaintiff would have any alternative 

remedies were the case dismissed for nonjoinder.

Id. at 848.

In cases such as this, once a party has been determined to be indispensable 

pursuant to the first part of the Rule 19 analysis, the burden falls on the plaintiff to

demonstrate that application of the second part of the Rule 19 analysis does not 

require dismissal of the action. Ranger Ins. Co. v. United Hous. of N.M., Inc., 488 

F.2d 682, 683 (5th Cir. 1974)1(“Where an initial appraisal of the facts reveals the 

possibility that an unjoined party is arguably indispensable, the burden devolves 

upon the party whose interests are adverse to the unjoined party to negate the 

unjoined party’s indispensability to the satisfaction of the court.”).

Of course, the Court should inquire into subject matter jurisdiction “at the 

earliest possible stage in the proceedings,” and subject matter jurisdiction “cannot 

be waived or otherwise conferred upon the court by the parties.” Univ. of S. Ala. v. 

 

1 The Eleventh Circuit has adopted as binding all decisions of the former Fifth 

Circuit prior to October 1, 1981. Bonner v. Pritchard, 661 F.2d 1206, 1209 (11th 

Cir. 1981) (en banc).

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Am. Tobacco Co., 168 F.3d 405, 410 (11th Cir. 1999). Further, a “party does not 

waive the defense of failure to join an indispensable party by neglecting to raise it; 

an objection can be raised at any time even by a reviewing court on its own 

motion[.]” Kimball v. Fla. Bar, 537 F.2d 1305, 1307 (5th Cir. 1976).

ARGUMENT

Application of the first part of Rule 19 clearly demonstrates that DCF, as a 

claimant in the underlying litigation, is an indispensable party. Accordingly, the 

burden for negating indispensability falls on Hanover, as the party whose interests 

are adverse to the unjoined party. Hanover has not, and cannot, meet its burden. As 

shown below, the factors clearly point to DCF’s indispensability in this case. 

Because DCF is an agency of the State of Florida, diversity is no longer present, and

this Court lacks subject matter jurisdiction over Hanover’s Complaint.

I. DCF is an Indispensable Party.

Claimants in declaratory-judgment actions by insurers are generally held to 

be indispensable parties. See, e.g., Ranger Ins. Co., 488 F.2d at 684; see also Am. 

Safety Cas. Ins. Co. v. Condor Assocs., Ltd., 129 F. App’x 540, 542 (11th Cir. 2005)

(affirming finding claimants indispensable parties to insurer’s declaratory action 

against insured); Cent. Sur. & Ins. Corp. v. Norris, 103 F.2d 116 (5th Cir. 1939)

(holding that the District Court erred when it dismissed underlying claimants from 

an insurer’s declaratory judgment action against the insured); Cent. Sur. & Ins. Corp. 

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v. Caswell, 91 F.2d 607 (5th Cir. 1937) (same); Suniland Meat & Fish, Inc. v. 

Century Sur. Co., No. 16-61302, 2016 WL 8738384, at *3 (S.D. Fla. Oct. 11, 2016)

(“the Court finds that Centro and Riverside—as the tort claimants in the underlying 

state court lawsuit against Plaintiff—should be joined”); Earnest v. State Farm Fire 

& Cas. Co., 475 F. Supp. 2d 1113, 1117 (N.D. Ala. 2007) (“the underlying tort 

plaintiff would be an indispensable party no matter who initiated the complaint; 

otherwise, he or she would not be bound by the result”). Allstate Ins. Co. v. Conde, 

595 So. 2d 1005, 1008 (Fla. 5th DCA 1992) (“It is, of course, essential that the 

injured party be made a party to the declaratory judgment action.”).

Given the above showing, the burden appropriately shifts to Hanover to 

demonstrate DCF is not an indispensable party. Hanover cannot meet this burden, 

and each of the indispensability factors point to DCF being an indispensable party. 

Factor (1): Prejudice to the Joined and Nonjoined Parties. DCF would 

clearly be adversely affected by a judgment of liability or non-liability by this Court. 

As the Fifth Circuit held: it is “nonsensical to suggest that a declaration” “of liability 

or non-liability will have no practical effect upon the [claimants].” Ranger Ins. Co., 

488 F.2d at 683. At the very least, the claimants “would have to contend with the 

stare decisis effect of such a judgment.” Id. Indeed, a declaration of non-liability 

could well limit any recovery by DCF based on the claims it has asserted, which is 

why Florida courts require all persons having an interest to be brought in insurance 

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coverage declaratory actions (as the Receiver did in the related coverage suit 

remanded (Case No. 4:20cv309-RH-MJF (N.D. Fla.) (the “Companion Case”)). See, 

e.g., Bethel v. Sec. Nat. Ins. Co., 949 So. 2d 219, 223 (Fla. 3d DCA 2006) (“Upon 

remand, we note that Security National never added the policy holder . . . as a party 

to the action [against the potential first-party claimant].”). This Circuit respects the 

same principle of deciding the issues with all relevant parties before the Court.

Norris, 103 F.2d 116, 117 (5th Cir. 1939) (“The interest of [the claimants] in the 

question the Insurance Corporation is trying to get adjudicated by a declaratory 

judgment is real and substantial though not immediate. They ought to be retained as 

parties to be heard on it and to be bound by the result.”); Caswell, 91 F.2d at 609 

(“The injured passengers have a material interest in the outcome of the suit. [The 

insurer] has the right to have its obligations to them as well as to the insured 

determined. The passengers are necessary and proper parties.”).

Factors (2) and (3): Fashioning Limited Relief Versus Fully Adjudicating the 

Claims. The second factor, fashioning limited relief to lessen the prejudice, collides 

with the third factor, fully adjudicating the claims. Thus, while there may be some 

way to fashion limited relief that does not affect the DCF as the claimant, that limited 

judgment would not be adequate to fully adjudicate Hanover’s claims as the plaintiff 

seeking declaratory relief. Ranger Ins. Co., 488 F.2d at 684 (“We think it clear that 

this factor weighs heavily against appellant–assuming, as we must, that any 

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judgment would be shaped to avoid prejudice to claimants, they could force 

relitigation of the very issue here involved, that of whether the appellant is liable 

under its insurance contract.”).

Factor (4): Alternative Remedies. An alternative remedy is clearly available 

in state courts, where three liability lawsuits related to this matter remain pending

and the Companion Case can be remanded. Two other factors favor Florida State 

Courts. First, Florida Courts recognize the importance of the claimant being part of 

the declaratory action between the insurer and insured. Allstate, 595 So. 2d at 1008 

(“It is, of course, essential that the injured party be made a party to the declaratory 

judgment action.”). Second, Florida Courts recognize the importance of early 

adjudication of coverage issues for the benefit of all parties: the insured, insurer, and 

claimant. Higgins v. State Farm Fire & Cas. Co., 894 So. 2d 5, 15 (Fla. 2004) (“A 

prompt determination of coverage potentially benefits the insured, the insurer and 

the injured party.”) (quoting Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 

632 So. 2d 138, 141 (Fla. 4th DCA 1994)).

II. DCF is a State Agency Requiring Dismissal.

Because DCF is an indispensable party, joinder of the DCF will render this 

Court without jurisdiction for two further reasons: (1) DCF is an agency of the State 

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of Florida; and (2) well-established case law precludes diversity jurisdiction under 

28 U.S.C. § 1332 where a state is one of the parties.

First, the Court must determine whether DCF is an alter ego of the state, i.e.,

an agency or instrumentality of the state. Univ. of S. Ala., 168 F.3d at 412 (collecting 

cases and finding University of South Alabama is an instrumentality of the State of 

Alabama). DCF is unquestionably a state agency under the relevant analysis and 

therefore an instrumentality of the state. Univ. of S. Fla. Bd. of Trustees v. CoMentis, 

Inc., 861 F.3d 1234, 1235 (11th Cir. 2017) (“the Eleventh Amendment immunity 

analysis applies to determinations of citizenship for diversity jurisdiction 

purposes”).

Under either Eleventh Amendment immunity or diversity analysis, DCF has 

repeatedly been found to be an agency of the State of Florida. See, e.g., Blankenship 

v. Claus, 149 F. App’x 897, 899 (11th Cir. 2005) (“Because Blankenship seeks 

information from an agency of the state of Florida [i.e., DCF], no amendment will 

create diversity jurisdiction”); Lewis v. Fla. Dep’t of Children & Families, No. 20-

75, 2020 WL 2309475, at *1 (N.D. Fla. Apr. 3, 2020), report and recommendation 

adopted, 2020 WL 2308954 (N.D. Fla. May 8, 2020) (dismissing complaint “against 

a state agency, the Department of Children and Families, as the only Defendant”

under immunity grounds); Webb v. Dep’t of Children & Families, No. 07-362, 2007 

WL 2948621, at *2 (M.D. Fla. Oct. 10, 2007) (same); see also Jackson v. Fla. Dep’t 

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of Children & Families, No. 10-123, 2010 WL 11565364, at *2 (N.D. Fla. Aug. 17, 

2010) (noting “the state and its agencies, including the Department of Children and 

Families”). 

While the Court has pointed the parties to case law finding that the Florida 

Department of Health and Rehabilitative Services was not an agency of the state, 

(ECF No. 37 (citing, Dep’t of Health & Rehab. Servs., State of Fla. v. Davis, 616 

F.2d 828, 833 n.8 (5th Cir. 1980)), that case did not thoroughly analyze the relevant 

factors and that simply conflicts with the numerous cases finding that the modern 

DCF is indeed an agency of the State of Florida.

Second, when a state is a real party in interest, binding Supreme Court

precedent, as well as an abundance of case law, supports a determination that there

can be no diversity between the parties to support diversity jurisdiction. Postal Tel. 

Cable Co. v. Alabama, 155 U.S. 482, 487 (1894) (“A state is not a citizen. And under 

the judiciary acts of the United States it is well settled that a suit between a state and 

a citizen or a corporation of another state is not between citizens of different states, 

and that the circuit court of the United States has no jurisdiction of it”); Centraal 

Stikstof Verkoopkantoor, N. V. v. Ala. State Docks Dep’t, 415 F.2d 452, 457 (5th Cir. 

1969) (state is real party in interest where, among other things, department could 

bring suit in the state’s name); Univ. of S. Ala., 168 F.3d at 412 (“it is well established 

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that a state is not a citizen of a state for the purpose of diversity jurisdiction under 

28 U.S.C. § 1332”).

CONCLUSION

Because DCF is an indispensable party and an agency of the State of Florida, 

Hanover’s Complaint should be dismissed for lack of subject matter jurisdiction.

WORD LIMIT CERTIFICATION

Pursuant to Local Rule 7.1(F), the undersigned hereby certifies that the word 

count for this document is 2,476.

Respectfully submitted this 28th day of August, 2020,

By: /s/ Joshua M. Hawkes 

James A. McKee

Florida Bar No. 638218

jmckee@foley.com

Joshua M. Hawkes 

Florida Bar No. 112539

jhawkes@foley.com

FOLEY & LARDNER LLP

106 East College Avenue

Tallahassee, FL 32301-7732

Telephone: (850) 222-6100

Facsimile: (850) 561-6475

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CERTIFICATE OF SERVICE

I hereby certify that, on August 28, 2020, a true and correct copy of the 

foregoing was filed with the Northern District of Florida via the CM/ECF system 

and served by operation of the court’s electronic filing system upon the below 

service list electronically.

 /s/ Joshua M. Hawkes 

Joshua M. Hawkes

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SERVICE LIST

Alvin Donald Scott, Jr. 

a.donald.scottjr@wilsonelser.com 

Kathy Arline 

kathy.arline@wilsonelser.com 

Erik John Tomberg 

erik.tomberg@wilsonelser.com 

Wilson Elser Moskowitz Edelman & 

Dicker LLP

111 North Orange Avenue Suite 1200

Orlando, Florida 32801

407-203-7599 - Phone

407-648-1376 - Facsimile

Attorneys for Plaintiff, Hanover 

Insurance Company

John James Van Hise, III 

jvanhise@coppinsmonroe.com 

Zackery Aaron Scharlepp 

zascharlepp@coppinsmonroe.com 

Coppins Monroe Adkins et al., PA

1319 Thomaswood Dr 

Tallahassee, FL 32308 

850-422-2420 

Fax: 850-422-2730 

Attorneys for Defendant Sandra 

Barnett

Michael Timothy Callahan 

mcallahan@clftrialattorneys.com

Callahan Law Firm LLC 

449 Central Ave. Ste 203 

St. Petersburg, FL 33701 

727-209-1504 

Fax: 727-289-4800 

Attorney for Defendant Patricia Durate

Amanda Kaye Anderson 

aanderson@boylegentilelaw.com 

Mark Andrew Boyle, Sr 

mboyle@insurance-counsel.com 

Boyle Leonard & Anderson PA 

2050 McGregor Blvd 

Fort Myers, FL 33901 

239-337-1303 

Fax: 239-337-7674 

Attorneys for Defendant, Fla. Coalition 

Against Domestic Violence, Inc.

Robert Andrew Mcneely 

rmcneely@lawfla.com

James Joseph Dean 

jdean@lawfla.com

Messer Caparello & Self PA

2618 Centennial PL 

Tallahassee, FL 32308 

Attorneys for Defendants Melody 

Keeth, Laurel Lynch, Angela DiazVidaillet, Shandra Riffey, Theresa 

Beachy, Sheryl Schwab, Lorna Taylor, 

and Penny Morrill 

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