Empire Talent-Modeling Agency LLC et al v. Auto-Owners Insurance Company et al

Filing 59

ORDER denying 42 Motion to Amend/Correct. Signed by Judge David G Campbell on 2/20/2013.(NVO)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9

Empire Talent-Modeling Agency, LLC and
Marisa Sclafani, a married woman,

No. CV-12-0711-PHX DGC
ORDER

10

Plaintiffs,

11

v.

12

Auto-Owners Insurance Company, et al.,

13

Defendants.

14
15

On May 18, 2012, the Court issued a Case Management Order which stated: “The

16

deadline for joining parties, amending pleadings, and filing supplemental pleadings is 30

17

days from the date of this Order.” Doc. 16 ¶ 2. The Court emphasized that the “parties

18

are advised that the Court intends to enforce the deadlines set forth in this Order, and [the

19

parties] should plan their litigation activities accordingly.” Doc. 16 ¶ 9. Almost seven

20

months later, on December 10, 2012, Defendant Auto-Owners Insurance Company filed a

21

motion to amend its answer to include the affirmative defense of fraud.

22

Defendant asked permission to do so under Rule 15 of the Federal Rules of Civil

23

Procedure. Id. at 1. Although Rule 15 embodies a liberal amendment policy, see Fed. R.

24

Civ. P. 15(a)(2), that is not the standard to be applied in this case. The Court finds that

25

although Defendant has shown “good cause” to modify the scheduling order under Rule

26

16, the Defendant’s motion to amend is nonetheless futile and prejudicial.

27

A.

28

Doc. 42.

Rule 16.
When a party seeks to modify the schedule set by a case management order, that

1

party must show “good cause” to do so under Rule 16. Fed. R. Civ. P. 16(b)(4). Good

2

cause exists when a deadline “cannot reasonably be met despite the diligence of the party

3

seeking the extension.” Fed. R. Civ. P. 16 Advisory Comm.'s Notes (1983 Am.). “Rule

4

16(b)'s ‘good cause’ standard primarily considers the diligence of the party seeking the

5

amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 608 (9th Cir. 1992);

6

see also Coleman v. Quaker Oats Co., 232 F.3d 1271, 1294 (9th Cir. 2000).

7

In this case, Defendant has shown the necessary diligence. Defendant did not

8

suspect Plaintiffs of fraud until a deposition of Plaintiff Marisa Sclafani on July 18, 2012.

9

Doc. 51 at 2.

Afterwards, Defendant repeatedly requested that Plaintiffs produce

10

financial documents and contact information for Plaintiffs’ clients, all of which may have

11

been probative of fraud. Doc. 51 at 3, 4. Defendant did not receive these materials until

12

November 5, 2012, after this Court ordered production of the documents. Doc. 51 at 3.

13

One month later, Defendant filed its motion to amend. Doc. 42. While this motion

14

certainly comes late in the proceedings, Defendant has nonetheless been diligent in

15

pursuing its defense of fraud.

16

B.

Rule 15.

17

If a party shows the Court good cause to modify the schedule, the Court must still

18

consider whether to grant leave to amend under Rule 15(a). See Johnson, 975 F.2d at

19

608. The Court may deny a motion to amend if there is a showing of undue delay or bad

20

faith on the part of the moving party, undue prejudice to the opposing party, or futility of

21

the proposed amendment. Foman v. Davis, 371 U.S. 178, 182 (1962). Since the Court

22

finds that the motion to amend is futile and prejudicial, the Court will not address issues

23

of undue delay, bad faith, and pleading fraud with particularity.

24

In deciding whether an amendment would be futile, courts have examined the

25

legal sufficiency of the proposed amendment. Miller v. Rykoff-Sexton, Inc., 845 F.2d

26

209, 214 (9th Cir. 1988) (“A motion for leave to amend may be denied if it appears to be

27

futile or legally insufficient.”) (citation omitted); see also Sound of Music Co. v.

28

Minnesota Min. & Mfg. Co., 477 F.3d 910, 923 (7th Cir. 2007) (finding that leave to
-2-

1

amend may be denied if court properly can determine that the claim would not survive

2

summary judgment). In this case, Defendant seeks to amend its answer to include the

3

affirmative defense of fraud. The proposed amendment states:

4

8

As and for a separate defense, and in the alternative, Defendant alleges that
Plaintiffs have committed concealment, misrepresentation, and/or fraud
concerning a claim under the applicable insurance policy which voids the policy.
During the presentation of the claim, Defendant alleges that Plaintiffs
misrepresented information regarding their claim including, but not limited to, the
value of the modeling portfolios and the identities of clients. These
misrepresentations void the policy.

9

Doc. 42-1 ¶ 74 (emphasis added). The thrust of this defense is that Defendant has no

10

duty to pay Plaintiffs’ claims, because the insurance policy was voided when Plaintiffs

11

presented fraudulent claims.

5
6
7

12

Plaintiffs argue that Defendant’s policy is not necessarily voided when an insured

13

presents fraudulent claims. Doc. 48 at 11. Quoting the relevant policy sections, Plaintiffs

14

show that Defendant may cancel the insured’s policy if the insured presents a fraudulent

15

claim, but to do so Defendant must provide notice of cancellation sixty days before

16

cancellation.

17

cancellation to Plaintiffs. Moreover, in its reply, Defendant does not seriously contest

18

Plaintiffs’ assertions, nor does Defendant identify the policy provisions that void an

19

insured’s policy merely upon the presentation of fraudulent claims.

Id. at 10–11.

Defendant does not allege that it gave any notice of

20

Instead, Defendant argues that the amended answer need only give “fair notice” of

21

the affirmative defense to Plaintiffs, citing Wyshak v. City Nat’l Bank, 607 F.2d 824 (9th

22

Cir. 1979), as authority. Doc. 51 at 6. But the court in Wyshak found the “fair notice”

23

standard satisfied because, in addition to asserting a statute of limitations defense, the

24

defendant also indicated the specific statute that provided the relevant time limits.

25

Wyshak, 607 F.2d at 827. Here, Defendant has not identified a provision in its insurance

26

policy that immediately voids a fraudulent claim. Defendant in its reply also asserts that

27

there is a common law fraud defense that permits it to void a policy when an insured

28

presents a fraudulent claim. Doc. 51 at 6. But Defendant provides no support for this
-3-

1

assertion. Its citation to Am. Pepper Supply Co. v. Fed. Ins. Co., 93 P.3d 507 (Ariz.

2

2004), is inapposite as this case discussed the burden of proof for an insurer’s policy

3

defense of concealment or misrepresentation. Id. at 512.

4

Therefore, Defendant’s proposed defense is legally insufficient. Whatever effect

5

an insured’s fraudulent claim may have, the policy does not provide for automatic

6

cancellation.

7

Moreover, by allowing Defendant to amend its answer, there would be a strong

8

possibility of prejudice to Plaintiffs.

9

discovery as to the fraud defense, because the deadline for the completion of fact

10

discovery (January 18, 2013) has already passed. Doc. 16 ¶ 4. While the prejudice to

11

Plaintiffs may not be great, as they are best situated to know whether they have presented

12

fraudulent claims, it is still significant.

13

Plaintiffs have in fact incurred any losses and whether its policy would provide coverage

14

for those losses.

15
16
17

Plaintiffs would be unable to conduct further

Defendant remains free to dispute whether

IT IS ORDERED that Defendant’s motion for leave to file first amended answer
(Doc. 42) is denied.
Dated this 20th day of February, 2013.

18
19
20
21
22
23
24
25
26
27
28
-4-