Riverbend Environmental Services, LLC v. Crum & Forster Specialty Insurance Company
Filing
42
ORDER denying as moot 29 Motion to Convert ; denying as moot 41 Motion to Supplement Response; denying as moot 12 Motion to Dismiss; denying 22 Motion to Dismiss (Renewed). Signed by District Judge David C. Bramlette, III on November 29, 2022. (jm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
RIVERBEND ENVIRONMENTAL SERVICES, LLC
vs.
PLAINTIFF
CIVIL ACTION NO. 5:22-CV-31-DCB-BWR
CRUM & FORSTER SPECIALTY INSURANCE COMPANY
DEFENDANT
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Crum & Forster Specialty
Insurance Company (“Defendant”)’s (i) Motion to Dismiss [ECF No.
12] (the “First Motion to Dismiss”), (ii) Defendant’s Motion to
Dismiss (Renewed) [ECF No. 22] (the “Second Motion to Dismiss”);
(iii) Riverbend Environmental Services, LLC (“Plaintiff”)’s Motion
to Convert Crum & Forster’s Renewed Motion to Dismiss and Allow
Discovery Pursuant to Rule 56(d) [ECF No. 29]; and (iv)
Plaintiff’s Motion To Supplement Its Response In Opposition to
Defendant Crum & Forster Specialty Insurance Company’s Renewed
Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
[ECF No. 41].
After reviewing the various motions, the parties’
submissions, and applicable law, the Court finds as follows:
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BACKGROUND
This case involves Defendant’s denial of coverage under an
environmental insurance policy, No. EPK-129574 (the “Policy”), for
clean-up costs at a municipal non-hazardous waste landfill in
Fayette, Mississippi.
[ECF No. 16].
operated by Plaintiff.
Id. ¶ 4.
The landfill was owned and
On August 16, 2020, a fire broke
out at the landfill and forced it to close.
Id. ¶ 5.
The
Mississippi Department of Environmental Quality (“MDEQ”) exercised
its authority to hire third-party contractors to respond to the
fire.
Id. ¶¶ 6-9.
Id. ¶ 11.
The fire was extinguished on August 25, 2020.
MDEQ deemed Plaintiff responsible for the third-party
contractor costs.
Id. ¶¶ 9-10.
Plaintiff asserts in its Amended
Complaint that it gave Defendant timely notice of its claim for
clean-up costs under the Policy, which Defendant denies.
27-28, 31.
Defendant denied coverage on May 21, 2021.
Id. ¶¶
Id. ¶ 31.
Plaintiff filed suit in this Court for declaratory relief and
damages on April 21, 2022.
ANALYSIS
I.
First Motion to Dismiss
In its First Motion to Dismiss [ECF No. 12], Defendant asks
this Court to dismiss with prejudice all claims that Plaintiff has
filed against Defendant in the original complaint [ECF No. 1] (the
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“Original Complaint”).
While the First Motion to Dismiss still
was pending, Plaintiff filed its First Amended Complaint for
Declaratory and Other Relief.
[ECF No. 16] (the “Amended
Complaint”).
Filing “[a]n amended complaint supersedes the original
complaint and renders it of no legal effect unless the amended
complaint specifically refers to and adopts or incorporates by
reference the earlier pleading.”
Stewart v. City of Houston
Police Dep't, 372 F. App'x 475, 478 (5th Cir.2010) (quoting King
v. Dogan, 31 F.3d 344, 346 (5th Cir.1994)); Brock v. Issaquena
Cnty., Miss., No. 3:13–cv–862–DCB–MTP, 2014 WL 5293103, at *1
(S.D. Miss. Oct. 15, 2014).
In this case, the Amended Complaint
did not adopt or incorporate the Original Complaint.
Under Fifth
Circuit precedent, the superseded Original Complaint has “no legal
effect”,
King v. Dogan, 31 F.3d at 344, and the First Motion to
Dismiss is rendered moot.
E.g., Rutherford v. Hunt S. Grp., LLC,
No. 1:18CV394-LG-RHW, 2019 WL 1460917, at *2 (S.D. Miss. Apr. 2,
2019)(because new complaint supplanted existing complaint as the
operative complaint, motion to dismiss was rendered moot); Reyna
v. Deutsche Bank Nat. Trust Co., 892 F.Supp.2d 829, 834 (W.D.Tex.
2012) (citing Smallwood v. Bank of Am., No. 3:11-cv-1283-D, 2011
WL 4941044 at *1 (N.D.Tex. Oct. 17, 2011)).
The Court therefore
will deny as moot the First Motion to Dismiss [ECF No. 12].
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II.
Second Motion to Dismiss
When ruling on a motion to dismiss pursuant to Rule 12(b)(6),
the Court must accept all factual allegations in the complaint as
true and draw all reasonable inferences in the plaintiff’s
favor.
Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir.
2012); Martin K. Eby Constr. Co. v. Dallas Area Rapid Transit, 369
F.3d 464, 467 (5th Cir. 2004); McCoy v. Defs., Inc., No. 3:17-cv207-DCB-LRA, 2017 WL 6329600, at *2 (S.D. Miss. Dec. 11, 2017);
Franklin v. N. Cent. Narcotics Task Force, No. 5:15-cv-120-DCBMTP, 2016 WL 7378215, at *2 (S.D. Miss. Dec. 20, 2016).
However,
the Court is not required to credit “mere conclusory statements”
or “threadbare recitals of the elements of a cause of
action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also
id. at 681 (citing Twombly, 550 U.S. at 551).
“To survive a
motion to dismiss, a complaint must contain sufficient factual
matter ... to ‘state a claim to relief that is plausible on its
face.’ ” Id. at 678 (quoting Twombly, 550 U.S. at 570).
A claim
is facially plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
(citing Twombly, 550 U.S. at 556).
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Id.
If the plaintiff has not
“nudged [his] claims across the line from conceivable to
plausible, [the] complaint must be dismissed.” Twombly, 550 U.S.
at 570.
Defendant’s primary argument in favor of dismissal is that
Plaintiff’s notice of the claim was untimely under the Policy, and
Plaintiff’s claim for coverage therefore fails.
3-5.
[ECF No. 35] at
In contrast, Plaintiff alleges in its Amended Complaint that
notice of the claim was timely:
27. Timely notice of the landfill fire and/or the
contractor claim was provided to the broker, and/or
producer, and/or general agent of Crumb & Forster with
the actual and/or apparent authority to receive notice
of the Fayette Landfill fire loss and/or the Contractor
Claim.
28. On or before November 13, 2020, the Prewitt Group,
and/or such other entity with the actual and/or apparent
authority to receive notice of a claim, had actual and/
or written notice of the landfill fire loss, and/or
efforts by E3 and/or CTEH to clean-up and/or abate the
pollution condition at Riverbend’s Fayette Landfill.
[ECF No. 16] ¶¶ 27-28.
Among other things, Defendant also argues that Plaintiff
cancelled the Policy on November 13, 2020.
[ECF No. 23] at 5.
The Policy contained a ninety-day extended reporting period, which
extended the deadline for reporting claims under the Policy until
ninety days after the Policy expired or was cancelled.
Id.
According to Defendant, the extended reporting period expired on
February 11, 2021, and Defendant did not receive notice of the
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claim until April 1, 2021.
Plaintiff alleges, however, that because it was under Chapter
11 bankruptcy protections, the automatic stay barred any attempted
cancellation of the policy, and the 90-day extended reporting
period under the Policy did not expire until March 29, 2021.
No. 16] ¶¶ 18-25.
[ECF
The parties further dispute if and when
Defendant received proper notice of the claim and whether
Defendant’s alleged receipt of corrective action letters from MDEQ
on or before November 13, 2020, constitutes notice of a claim
under the Policy.
[ECF No. 35] at 3-4; [ECF No. 37] at 2-3.
This case is in the early stages of litigation.
The Case
Management Order [ECF No. 39] was entered on November 1, 2022, and
it is the Court’s understanding that preliminary discovery
recently began.
The Court is not persuaded that summary dismissal
of this case is appropriate at this time.
It is the Court’s
opinion that there may be facts for further development or
clarification and that the better course is for discovery to
proceed in accordance with the deadlines set forth in the Case
Management Order.
Defendant’s Second Motion to Dismiss will be
denied.
III.
Motion to Convert and Allow Discovery
Plaintiff asks this Court to convert the Second Motion to
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Dismiss into a motion for summary judgment and allow discovery
pursuant to Federal Rule of Civil Procedure 56(d).
[ECF No. 29].
Given the Court’s disposition of the Second Motion to Dismiss,
Plaintiff’s motion to convert is moot and will be denied.
Discovery will proceed in accordance with the Federal Rules of
Civil Procedure, the Local Uniform Civil Rules, and the deadlines
set forth in the Case Management Order [ECF No. 39].
IV.
Plaintiff’s Motion To Supplement Its Response In Opposition
Plaintiff’s Motion to Supplement Its Response in Opposition to
Defendant Crum & Forster Specialty Insurance Company’s Renewed
Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
[ECF No. 41] also is denied as moot given the Court’s disposition
of the Second Motion to Dismiss.
Accordingly,
Defendant’s First Motion to Dismiss [ECF No. 12] is DENIED as
moot;
Defendant’s Motion to Dismiss (Renewed) [ECF No. 22] is
DENIED;
Plaintiff’s Motion to Convert Crum & Forster’s Renewed Motion
to Dismiss and Allow Discovery Pursuant to Rule 56(d) [ECF No. 29]
is DENIED as moot; and
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Plaintiff’s Motion to Supplement Its Response in Opposition
to Defendant Crum & Forster Specialty Insurance Company’s Renewed
Motion to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)
[ECF No. 41] is DENIED as moot.
The Court further orders that discovery shall proceed in
accordance with the Federal Rules of Civil Procedure, the Local
Uniform Civil Rules, and the deadlines set forth in the Case
Management Order.
SO ORDERED AND ADJUDGED this 29th day of November 2022.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
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