              Case: 13-10829        Date Filed: 09/27/2013   Page: 1 of 7


                                                                [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-10829
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 8:12-cv-00897-JSM-TBM

EVELYN B. VANDENBRINK,
Individually and on behalf of all
others similarly situated,

                                                                    Plaintiff-Appellant,

RICHARD BERG,
Individually and on behalf of all
others similarly situated,
                                                                              Plaintiff,


                                          versus

JEREMY JOSEPH VONESCHEN,
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
a foreign corporation,

                                                                Defendants-Appellees.

                           ________________________

                    Appeal from the United States District Court
                        for the Middle District of Florida
                          ________________________
                              (September 27, 2013)
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Before PRYOR, MARTIN and FAY, Circuit Judges.

PER CURIAM:

      Evelyn B. Vandenbrink appeals the dismissal with prejudice of her third

amended complaint for failure to state a claim against her insurer, State Farm

Mutual Automobile Insurance Company, and Jeremy Joseph Voneschen. See Fed.

R. Civ. P. 12(b)(6). Vandenbrink sought a declaratory judgment and a permanent

injunction against State Farm that would protect the proceeds of a settlement that

resolved Vandenbrink’s personal injury claim against Voneschen. See Fla. Stat.

§ 86.011. Vandenbrink received medical payment benefits from State Farm that

were subject to repayment after Vandenbrink was “made whole.” State Farm

notified Vandenbrink that it intended to seek reimbursement if she were made

whole, but State Farm did not take any action to collect its payments and later

disclaimed any present intent to obtain any of the proceeds of Vandenbrink’s

settlement. Because Vandenbrink’s complaint presents a controversy not ripe for

judicial review, we vacate the order that dismissed her complaint for failure to state

a claim and remand with instructions to dismiss for lack of subject matter

jurisdiction.

      Vandenbrink was injured in an automobile accident caused by Voneschen.

Vandenbrink paid some of her medical expenses using medical payment benefits


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disbursed by State Farm. Voneschen’s insurance company refused to settle, and

Vandenbrink sued Voneschen.

      State Farm notified Vandenbrink’s attorney that it intended to seek

reimbursement if Voneschen fully compensated Vandenbrink for her losses. On

August 3, 2011, State Farm sent Vandenbrink a letter stating that it “intend[ed] to

pursue a subrogation claim for . . . Medical Payments Coverage in the amount of

$6,584.50.” On March 7, 2012, State Farm sent Vandenbrink a second letter

stating that it “intend[ed] to seek recovery for the [$8,509.54] paid under the

Medical Payments Coverage (MPC) portion of the policy as allowed under Florida

Sources Statute 768.76.” The March letter stated that State Farm “underst[ood]

that [its] right to recovery [was] contingent upon [Vandenbrink] being made whole

by the settlement . . . negotiate[d] with the tortfeasor or [his] insurance carrier.”

      Vandenbrink settled her dispute with Voneschen, paid her attorney’s fees

and outstanding medical bills, and deposited the remainder in a trust account.

Vandenbrink amended her complaint against Voneschen to add a putative class

action against State Farm, and State Farm removed the amended complaint to the

district court. Later, Vandenbrink filed a second amended complaint that added

new claims against State Farm and named Richard Berg as a co-plaintiff. The




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district court dismissed the second amended complaint and allowed Vandenbrink

to replead.

      Vandenbrink filed a third amended complaint that requested, on behalf of

herself and other similarly situated residents of Florida, a declaration under the

Florida Declaratory Judgment Act that State Farm was “not entitled to seek

reimbursement or subrogation for medical benefits [it had] paid.” See Fla. Stat.

§ 86.011. Vandenbrink alleged that she “[had] not [been] made whole because she

did not recover the full value of her case, which, at a minimum, was at least

$40,000” and that State Farm knew it “had no right to [seek reimbursement or

subrogation for medical benefits it had paid] if [Vandenbrink] had not been made

whole.” Vandenbrink also alleged that State Farm had “pressed its standard and

commonly followed practice and course of conduct seeking reimbursement or

subrogation,” as revealed in its letters dated August 3, 2011, and March 7, 2012.

      State Farm moved to dismiss Vandenbrink’s third amended complaint for

lack of subject matter jurisdiction and failure to state a claim, see Fed. R. Civ. P.

12(b)(1), (b)(6), and to strike her request for class certification, see Fed. R. Civ. P.

23(d)(1)(D). State Farm argued that Vandenbrink’s allegations were inadequate to

“support a claim for declaratory relief.” State Farm argued that “no controversy or

doubts [existed] as to the rights of the parties because the Policy complies with [the


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requirement under] Florida law . . . [that there was no right of reimbursement until

an insured was made whole] and because State Farm [had] not taken any action

contrary to the Policy.”

      The district court ruled that Vandenbrink had standing to seek a declaratory

judgment because she risked injury “if State Farm pursue[d] its subrogation claim

before Vandenbrink [was] made whole,” but that she had failed to state a claim that

she faced an imminent injury as required under the Declaratory Judgment Act.

The district court ruled that the complaint failed to allege a “present controversy

about” the right of State Farm to reimbursement when the parties agreed that “any

subrogation right [was] subject to [Vandenbrink] being ‘made whole by the

settlement negotiated’” with Voneschen. The district court also ruled that

Vandenbrink failed to “sufficiently allege that an actual need for [a] declaration is

imminent because she did not allege that she [had] paid any money to State Farm,

that State Farm actually [had] received a portion of [Vandenbrink’s] settlement

from [Voneschen], or that State Farm [had] initiated any action against

[Vandenbrink] seeking to recover payments.” The district court dismissed

Vandenbrink’s third amended complaint and dismissed as moot the motion to

strike her request for class certification.




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      We review de novo issues involving subject matter jurisdiction. See Digital

Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir. 1997). The

jurisdiction of the federal courts is limited to actual cases and controversies.

“Article III of the United States Constitution limits the jurisdiction of the federal

courts to cases and controversies of sufficient concreteness to evidence a ripeness

for review.” Id. For a controversy to be ripe for review, “the complained-of injury

must be immediate or imminently threatened.” Wilderness Soc’y v. Alcock, 83

F.3d 386, 390 (11th Cir. 1996). In other words, it must be “the correct time for the

complainant to bring the action.” Id.

      The district court lacked jurisdiction to adjudicate Vandenbrink’s third

amended complaint because she did not face an “injury imminent enough for

purposes of judicial decisionmaking.” See id. at 390. State Farm asserted a right

to reimbursement, but it also acknowledged that it could not recover its medical

payments until Vandenbrink was “made whole” for her injuries. See Schonau v.

GEICO Gen. Ins. Co., 903 So. 2d 285, 287 (Fla. Dist. Ct. App. 2005). State Farm

has not exercised its right to reimbursement since Vandenbrink collected her

settlement proceeds, and State Farm avows that it “does not seek recovery of [the]

funds” that Vandenbrink placed in a trust account. Because Vanderbrink does not

face even the threat of an injury, her complaint is nonjusticiable.


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      We VACATE the order that dismissed Vandenbrink’s third amended

complaint for failure to state a claim and REMAND with instructions for the

district court to dismiss the complaint for lack of subject matter jurisdiction.




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