Philadelphia Indemnity Insurance Company v. Danco Builders

Filing 25

Order by Hon. William H. Orrick granting 20 Motion to Dismiss. Philadelphia Indemnity may file an amended complaint within 10 days of the date of this Order. The Second Amended Complaint has no effect. (jmdS, COURT STAFF) (Filed on 12/1/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PHILADELPHIA INDEMNITY
INSURANCE COMPANY,
Plaintiff,

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United States District Court
Northern District of California

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v.

Case No. 15-cv-03945-WHO
ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS
Re: Dkt. No. 20

DANCO BUILDERS, et al.,
Defendants.

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On November 4, 2015, defendant Danco Builders filed a motion to dismiss plaintiff

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Philadelphia Indemnity Insurance Company’s (“Philadelphia Indemnity”) first amended complaint

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(“FAC”). Mot. [Dkt. No. 20]. Danco argued that Philadelphia Indemnity’s FAC – which alleged

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two causes of action, one for negligence and one for strict products liability – was at core a

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complaint for equitable subrogation because Philadelphia Indemnity sought compensatory

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damages for a payment it had made to an insured third party following a fire. Mot at 1-2. Danco

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contended that the FAC was defective because it failed to plead the required elements for

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equitable subrogation and also failed to adequately state a claim under either of the two causes of

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action. Mot. at 3-16.

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In opposition, and apparently in recognition of the FAC’s deficiencies, Philadelphia

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Indemnity attached a second amended complaint (“SAC”) to a declaration by its counsel. Dkt.

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No. 23-2. The opposition integrated new factual allegations from the SAC and cited to the SAC in

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multiple places. See Opp. [Dkt. No. 23].

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Under Federal Rule of Civil Procedure 15(a), a plaintiff may file an amended complaint as

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a right within 21 days after a responsive pleading. Fed. R. Civ. P. 15(a); Ramirez v. Cty. of San

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Bernardino, No. 13-56602, 2015 WL 7423064, at *4 (9th Cir. Nov. 23, 2015)(“[W]e conclude that

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a plaintiff may amend in whatever order he sees fit, provided he complies with the respective

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requirements found within 15(a)(1) and 15(a)(2).”). However, attaching an amended complaint as

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an exhibit to a declaration does not constitute filing the amended complaint, so Rule 15 is not

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applicable here.

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In light of Philadelphia Indemnity’s effective concession of the insufficient and conclusory

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nature of the FAC by attaching a SAC to its counsel’s declaration and relying upon the SAC in its

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opposition to combat multiple arguments asserted by Danco, I GRANT Danco’s motion to

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dismiss. Philadelphia Indemnity may file an amended complaint within 10 days of the date of this

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Order. The SAC has no effect. Philadelphia Indemnity may make any changes to it in the

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United States District Court
Northern District of California

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amended complaint that it deems necessary or appropriate.
IT IS SO ORDERED.
Dated: December 1, 2015
______________________________________
WILLIAM H. ORRICK
United States District Judge

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