Mann Bracken, LLP v. Executive Risk Indemnity, Inc.
Filing
26
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/9/2015. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
MANN BRACKEN, LLP
:
v.
:
Civil Action No. DKC 15-1406
:
EXECUTIVE RISK INDEMNITY, INC.
:
MEMORANDUM OPINION
Presently pending and ready for review in this insurance
case
is
a
motion
for
reconsideration
and
leave
to
file
an
amended complaint filed by Plaintiff Cheryl E. Rose, acting in
her
official
capacity
(“Plaintiff”).
briefed,
and
as
receiver
(ECF No. 24).
the
court
now
Local Rule 105.6.
motion
reconsideration
for
Mann
Bracken,
LLP
The relevant issues have been
rules,
necessary.
of
no
hearing
being
deemed
For the following reasons, the
and
for
leave
to
amend
will
be
denied.
I.
Background
A full recitation of the facts is included in this court’s
September
28,
Accordingly,
motion
will
undersigned
Executive
2015
only
be
additional
discussed
granted
Risk
Memorandum
a
Opinion.
facts
here.
motion
Indemnity,
On
to
relevant
ECF
to
September
dismiss
Inc.
(See
the
28,
filed
(“Executive
No.
by
22).
pending
2015,
the
Defendant
Risk”
or
“Defendant”).
The complaint was dismissed because “Plaintiff
had not pled facts showing that its untimely claim and/or report
is
covered”
by
Specifically,
Defendant’s
the
insurance
complaint
failed
policy.
to
(Id.
plead
with
at
23).
sufficient
detail and support that Mann Bracken sent notice to Executive
Risk
during
information
the
and
policy
belief”
period,
that
and
instead
notice
was
pleaded
“upon
provided.
The
undersigned noted that because “Plaintiff, as receiver for Mann
Bracken, would uniquely have access to Mann Bracken’s documents
and
records[,]”
she
was
required
to
plead
specificity than “upon information and belief.”
with
greater
(Id. at 20-21).
On October 22, Plaintiff filed the pending motion.
No. 24).
(ECF
Defendant filed a response in opposition (ECF No. 25),
and Plaintiff has not replied.
II.
Standard of Review
Plaintiff has moved for reconsideration and leave to amend
her complaint.
In Katyle v. Penn Nat. Gaming, Inc., the United
States Court of Appeals for the Fourth Circuit explained that a
district court may not grant a post-judgment motion to amend the
complaint unless the court first vacates its judgment pursuant
to Fed.R.Civ.P. 59(e) or 60(b).1
1
637 F.3d 462, 470 (4th Cir.
A party may move to alter or amend a judgment under Rule
59(e), or for relief from a judgment or order under Rule 60(b).
See Fed.R.Civ.P. 59(e) & 60(b).
A motion to alter or amend
filed within 28 days of the judgment is analyzed under Rule
2
2011);
City
of
Fredericksburg, Virginia, 710 F.3d 536, 539 (4th Cir. 2013).
The
Fourth
see
also
Circuit
Calvary
further
Christian
stated
that
Center
“[t]o
v.
determine
whether
vacatur is warranted, . . . the court need not concern itself
with either of those rules’ legal standards.”
at 471.
Katyle, 637 F.3d
Katyle held that:
[t]he court need only ask whether the
amendment should be granted, just as it
would on a prejudgment motion to amend
pursuant to Fed.R.Civ.P. 15(a).
In other
words,
a
court
should
evaluate
a
postjudgment motion to amend the complaint
‘under the same legal standard as a similar
motion filed before judgment was entered –
for prejudice, bad faith, or futility.’
Laber v. Harvey, 438 F.3d 404, 427 (4th Cir.
2006); accord Matrix Capital Mgmt. Fund, LP
v. Bearingpoint, Inc., 576 F.3d 172, 193 (4th
Cir. 2009).
637 F.3d at 471; see also United States v. Shabazz, 509 F.App’x.
265, 266 (4th Cir. 2013).
“An amendment is futile when the
proposed amendment is clearly insufficient or frivolous on its
face, or if the amended claim would still fail to survive a
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).”
El–Amin
v. Blom, No. CCB–11–3424, 2012 WL 2604213, at *11 (D.Md. July 5,
2012) (citations and internal quotation marks omitted).
59(e); if the motion is filed later, Rule 60(b) controls.
See
Rule 59(e); MLC Auto, LLC v. Town of S. Pines, 532 F.3d 269, 280
(4th Cir. 2008). Here, Plaintiff moved pursuant to Rule 60, but
her motion is appropriately analyzed under Rule 59(e) because it
was filed within 28 days of entry of the court order.
3
III. Analysis
Plaintiff seeks to amend the complaint to plead additional
facts and offer additional evidence to show that Mann Bracken
provided notice to Executive Risk within the policy period.2
This additional evidence includes an affidavit from Mr. Connell
Loftus, Mann Bracken’s former managing partner; a copy of e-mail
correspondence from December 21, 2009 between Mr. Loftus and
another
Mann
Bracken
attorney
regarding
the
drafting
of
“a
letter putting Axiant’s insurance carrier on notice of a breach
of contract;” and a copy of the draft letter.
Plaintiff
argues
that
the
proposed
(ECF No. 24-1).
amendments
will
“provide
sufficient facts to demonstrate that timely notice was provided
to” Executive Risk.
(ECF No. 24, at 2).
In addition, she notes
that the evidence “shows the clear intent to notice” Executive
Risk.
Defendant counters that the proposed amendment would be
futile because the additional evidence contains factual errors
and does not plausibly show that Mann Bracken actually provided
notice to Executive Risk during the policy period.
at 5-9).
(ECF No. 25,
Defendant asserts that Mr. Loftus’ “recollection” that
notice was mailed to “Axiant’s insurer” is not sufficient to
survive a motion to dismiss.
2
Unfortunately, because Plaintiff does not provide the
court with a proposed amended complaint as required by this
court’s Local Rules, see Local Rule 103.6, the nature of the
proposed amendments must be discerned from Plaintiff’s pending
motion and attachments. (ECF Nos. 24; 24-1).
4
Plaintiff’s
proposed
amendments
are
futile
fail to cure fully the complaint’s deficiencies.
because
they
Although the
letter, if actually sent to Executive Risk, would have provided
notice, there was still no claim against Axiant until January
15, 2010 at the earliest, when Mann Bracken filed its proof of
claim in Axiant’s bankruptcy proceeding.
5).
(See ECF No. 15, at
The policy’s advance notice procedure, which may allow for
notice of a wrongful act to be provided to Executive Risk before
a claim is made against Axiant, still requires “written notice
of such claim [to be] given to [Executive Risk] as soon as
practicable after [the claim] is first made.”
(ECF No. 8-3, at
14
22,
(emphasis
Plaintiff’s
added);
proposed
see
also
amendments
ECF
do
No.
not
at
plead
21-22).
facts
that
plausibly show Executive Risk was given timely written notice
after the alleged claim was first made.
written
notice
asserted
in
the
Executive Risk on February 8, 2012.
Rather, the only other
complaint
was
provided
(ECF No. 2 ¶¶ 69-71).
to
Such
notice was neither within the policy period nor given as soon as
was practicable after the alleged claim was filed on January 15,
2010.
Moreover, Plaintiff’s proposed amendments do not plausibly
show
that
Mann
Executive Risk.
Bracken
actually
provided
written
notice
to
Rather, Plaintiff provides a first draft of an
5
unsigned, unaddressed, and incorrectly dated letter.3
The brief
e-mail correspondence indicates that Mann Bracken did not know
who Axiant’s insurer was at the time, and Executive Risk is not
mentioned in the draft letter or e-mails.
Thus, the attached
materials merely show that Mann Bracken was in the early stages
of
contemplating
Axiant.
that
slightly
notice
to
an
unnamed
insurer
of
Mr. Loftus avers in his affidavit, “My recollection is
[the]
insurer.”
providing
letter
was
mailed
by
(ECF No. 24-1 ¶ 31).
more
definitive
than
“upon
Mann
Bracken
to
Axiant’s
Such a statement is only
information
and
belief.”
Mr. Loftus’ “recollection,” combined with the early stage draft
letter and inconclusive e-mail correspondence, is insufficient
to cure the complaint’s “woefully inadequate” allegations.
ECF No. 22, at 21).
(See
The proposed amendments are futile because
they “have not nudged [Plaintiff’s] claims across the line from
conceivable to plausible.”
Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007).
3
Defendant implies that the draft letter may not be
authentic because it is dated October 9, 2015. The date rouses
suspicion, but it does not necessarily show inauthenticity. It
is possible that the date automatically updated when Plaintiff
or Mr. Loftus retrieved it. It fails, however, to reveal if the
draft is actually from December 21, 2009 or some later date.
6
IV.
Conclusion
For
the
foregoing
reasons,
Plaintiff’s
motion
for
reconsideration and leave to file an amended complaint will be
denied.
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
7
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