MSP Recovery Claims, Series LLC v. Indemnity Insurance Company of North America

Filing 26

ORDER Granting 22 Leave to Amend; denying as moot 11 Motion to Dismiss.( Amended Complaint due by 1/18/2018.). Clerks Notice: Filer must separately re-file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge. Signed by Judge Robert N. Scola, Jr on 1/16/2018. (kpe)

United States District Court
for the
Southern District of Florida
MSP Recovery Claims, Series LLC,
Plaintiff,
v.
Indemnity Insurance Company of
North America, Defendant.

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) Civil Action No. 17-23752-Civ-Scola
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Order Granting Leave to Amend
Plaintiff MSP Recovery Claims, Series LLC seeks leave from the Court to
amend its complaint. The Defendant opposes the motion for two reasons. First,
the Defendant asserts that the Plaintiff’s certification regarding its attempt to
confer with the Defendant is false. Second, the Defendant asserts that the
proposed First Amended Complaint contains redactions, which are improper
because the Plaintiff did not file an unredacted version under seal.
Pursuant to Federal Rule of Civil Procedure 15(a)(2), a party seeking to
amend its complaint may do so only with the opposing party’s written consent or
the court’s leave. According to the rule, leave should be freely given when justice
so requires. Rule 15(a) reflects a policy of “liberally permitting amendments.”
Espey v. Wainwright, 734 F.2d 748, 750 (11th Cir. 1984). The Supreme Court
has held that leave should be freely given absent factors such as “undue delay,
bad faith or dilatory motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, futility of amendment, etc.”
Foman v. Davis, 371 U.S. 178, 182 (1962).
The Court first notes that the Plaintiff’s request for leave to amend is
timely under the Scheduling Order. The Plaintiff admits that it did not in fact
send a copy of the proposed amended complaint to the Defendant as represented
in the pre-filing conference certification. (Reply 2, ECF No. 25.) However, the
Defendant has not asserted any substantive objections to the proposed amended
complaint, nor has it asserted that it will suffer undue prejudice if the Court
allows the amendment. With respect to the Defendant’s assertions concerning
the redactions in the proposed amended complaint, the Defendant is correct that
the Plaintiff should have filed an unredacted copy of the proposed amended
complaint under seal. However, the only redactions are in the exhibits to the
proposed amended complaint, and are limited to member names and
identification numbers. Although the Defendant asserts that it would need the

redacted information in order “to offer an informed and merits-based position on
the Motion to Amend,” it is unclear to the Court why the member names and
identification numbers are necessary for the Defendant to evaluate the proposed
amended complaint, particularly in light of the fact that none of the factual
allegations are redacted.
Although the Defendant has correctly pointed out two serious flaws in the
Plaintiff’s motion, the Defendant’s complaints do not demonstrate that the
Plaintiff acted with undue delay, bad faith or dilatory motive, or that the
Defendant will be unduly prejudiced by virtue of allowance of the amendment. In
light of the policy of liberally permitting amendments, the Court grants the
motion to amend (ECF No. 22). The Plaintiff must file the amended complaint as
a separate docket entry on or before January 18, 2018, and must properly seek
leave to file unredacted copies of the exhibits under seal. In light of the
forthcoming amended complaint, the Court denies as moot the Defendant’s
motion to dismiss (ECF No. 11). See Taylor v. Alabama, 275 F. App’x 836, 838
(11th Cir. 2008) (noting that when the plaintiffs amended their complaint the
defendants' motion to dismiss became moot).
The Plaintiff should not interpret the Court’s ruling as permission to flaunt
the Local Rules. The Plaintiff must carefully review future representations to the
Court concerning communications with opposing counsel, and must make goodfaith efforts to confer with opposing counsel prior to filing future motions. The
Court cautions the Plaintiff that last-minute emails sent to opposing counsel do
not constitute a good-faith attempt at conferral. In addition, the Court cautions
the Plaintiff that it must carefully follow the requirements of the Local Rules
concerning motions to seal. Future violations of the Local Rules may result in
sanctions.
Done and ordered, at Miami, Florida, on January 16, 2018.
________________________________
Robert N. Scola, Jr.
United States District Judge