Case: 18-10132 Date Filed: 08/29/2018 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 18-10132
Non-Argument Calendar
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D.C. Docket No. 1:16-cv-00222-MHC
ALYSSA MAJESKO,
on behalf of herself and all persons similarly situated,
Plaintiff - Appellant,
versus
NATIONWIDE MUTUAL INSURANCE COMPANY,
NATIONWIDE AFFINITY INSURANCE COMPANY OF AMERICA,
ABC COMPANIES 1-5,
Defendants - Appellees.
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Appeal from the United States District Court
for the Northern District of Georgia
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(August 29, 2018)
Before WILSON, NEWSOM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
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Alyssa Majesko appeals the district court’s dismissal of all of her claims at
the motion to dismiss stage against defendants Nationwide Mutual Insurance
Company and Nationwide Affinity Insurance Company of America (collectively,
Nationwide) and ABC Companies 1–5. Majesko’s case arises out of her attempt to
recover the diminished value of a Mercedes-Benz vehicle she leased that was
severely damaged in an accident in Georgia. Majesko obtained a car insurance
policy for that vehicle from the defendants. On appeal, Majesko argues that the
district court erred in: dismissing her breach of contract claim because Georgia law
and the policy do not prevent the lessee of a vehicle from recovering its diminished
value; concluding that Nationwide had not waived its standing arguments; holding
that the language in the lease divested her of standing as a bailee to pursue claims
against Nationwide; and deciding that Nationwide’s diminished value payment to
Mercedes precluded her diminished value claim against Nationwide. After
thorough review of the parties’ briefs and the record, we affirm.
I.
We review de novo a district court’s grant of a motion to dismiss for failure
to state a claim. Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th
Cir. 1998). We accept the well-pleaded facts in the complaint as true and construe
them in the light most favorable to the non-moving party. Guarino v. Wyeth, LLC,
719 F.3d 1245, 1248 (11th Cir. 2013). A claim can only survive a motion to
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dismiss if it is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570,
127 S. Ct. 1955, 1974 (2007). Facial plausibility occurs “when the plaintiff pleads
factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 1949 (2009).
II.
Because Majesko cannot bring this case absent standing, we start (and
ultimately end) with the standing issue. Majesko argues that Nationwide waived
its standing arguments, but standing arguments are not subject to waiver. United
States v. Hays, 515 U.S. 737, 742, 115 S. Ct. 2431, 2435 (1995); see also Fed. R.
Civ. P. 12(h)(3) (mandating the dismissal of an action at any time if it is
determined that subject matter jurisdiction is lacking). And the plain language of
the lease specifies that Mercedes is the only entity that could “initiate, settle, or
release” an insurance claim arising out of the physical damage of its vehicle. See
Mark Singleton Buick, Inc. v. Taylor, 391 S.E.2d 435, 437 (Ga. Ct. App. 1990)
(explaining that the lease terms govern the rights of the bailor and the bailee).
Therefore, Majesko has no standing to bring a claim for the diminished value of
the vehicle, and because the rest of her claims emanate from that claim, she does
not have standing to bring any of her claims in this case.
AFFIRMED.
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