                                                               [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                          ________________________
                                                                FILED
                                  No. 08-16081         U.S. COURT OF APPEALS
                                                         ELEVENTH CIRCUIT
                           ________________________          APRIL 22, 2009
                                                          THOMAS K. KAHN
                  D.C.   Docket No. 08-00417-CV-ORL-19-KRS CLERK

ROSE CUMMINGS, on behalf of herself and
all others similarly situated,

                                                           Plaintiff-Appellant,

                                       versus

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

                                                           Defendant-Appellee.

                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________
                                (April 22, 2009)

Before CARNES, HULL, and COX, Circuit Judges.

PER CURIAM:

      Rose Cummings filed this putative class action against State Farm Mutual

Automobile Insurance Company. Cummings’s principal allegation is that State Farm

failed to replenish her personal injury protection and medical payment coverages after
State Farm recovered monies that it had wrongfully paid to medical providers.

Cummings sought only declaratory relief. State Farm moved to dismiss, arguing that

Cummings had alleged no injury, and thus had no standing to sue. The district court

agreed, and dismissed the action with prejudice.

      Cummings’s Amended Complaint for declaratory judgment does not present

a justiciable controversy. We have held that in actions brought under the Declaratory

Judgment Act, 28 U.S.C. § 2201, “the threshold question is whether a justiciable

controversy exists.” Atlanta Gas Light Co. v. Aetna Cas. and Surety Co., 68 F.3d

409, 414 (11th Cir. 1995) (citations omitted). In declaratory judgment actions, to

show a justiciable controversy, the party invoking federal jurisdiction must allege

facts showing:

             at an irreducible minimum, that at the time the
             complaint was filed, he has suffered some actual or
             threatened injury resulting from the defendant’s
             conduct, that the injury fairly can be traced to the
             challenged action, and that the injury is likely to be
             redressed by favorable court disposition.

Id. (internal quotation marks and citation omitted). The controversy must be “of

sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

Id. (internal quotation marks and citation omitted).




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      In this case, the Amended Complaint does not allege that Cummings has

suffered an actual or threatened injury resulting from State Farm’s conduct, and thus

does not plead a justiciable controversy. The Amended Complaint does not allege

that State Farm has denied any claim filed by Cummings because her benefits were

exhausted; nor does it allege that State Farm has threatened to deny any such claim.

Accordingly, the district court correctly concluded that Cummings failed to allege any

actual or threatened injury.

      However, the district court inadvertently dismissed the action with prejudice.

(R.4-46 at 4.) Because the existence of a justiciable controversy is a jurisdictional

requirement, Atlanta Gas Light, 68 F.3d at 414, the district court lacked jurisdiction

and should have dismissed the action without prejudice. See Carter v. Telectron, Inc.,

554 F.2d 1369, 1370 (5th Cir. 1977) (dismissal for want of jurisdiction must be

without prejudice). We therefore vacate the district court’s order dismissing with

prejudice, and remand the case to the district court with instructions to dismiss for

want of jurisdiction.

      VACATED AND REMANDED WITH INSTRUCTIONS.




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