Creatore v. Assurance Company of America

Filing 50

Opinion and Order denying Plaintiff Ronald M. Creatore's Motion for Leave to File an Amended Complaint (Related Doc # 43 ). Judge Christopher A. Boyko on 4/30/2012.(R,D) Modified text and made document type an opinion on 5/1/2012 (P, S).

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

RONALD M. CREATORE,
Plaintiff,
vs.
ASSURANCE COMPANY OF
AMERICA, et al.,
Defendants.

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CASE NO. 5:09CV1877
JUDGE CHRISTOPHER A. BOYKO
OPINION AND ORDER

CHRISTOPHER A. BOYKO, J.:
This matter comes before the Court upon the Motion (ECF DKT #43) of Plaintiff,
Ronald M. Creatore (“Creatore”), for Leave to File an Amended Complaint. For the
following reasons, the motion is denied.
I. BACKGROUND
On July 6, 2009, Creatore filed a Complaint in Summit County Common Pleas Court,
seeking damages from Assurance Company of America (“Assurance”) and alleging breach of
contract and bad faith for failure to tender a defense and/or reimburse him for attorney’s fees,
costs, and expenses incurred in regard to the case of William Sayavich v. Ronald M. Creatore,
Case No. 03 CV 1081, in the Court of Common Pleas, Mahoning County, Ohio. Assurance
removed the action to federal court on August 11, 2009. In its Answer, filed September 8,
2009, Assurance denied coverage and asserted, inter alia, the defense of failure to provide
timely notice of the claim. Assurance alleges that it did not receive notice of the Sayavich
matter until October 8, 2007, nearly four years after that suit was filed against Creatore. On
June 6, 2011, Assurance filed its Third Party Complaint against First Place Insurance Agency,

Ltd., for breach of contract, negligence, indemnification and contribution. Assurance claims,
if Creatore provided notice of the Sayavich litigation to his agent, First Place, in April 2003,
then First Place is liable for failing to notify Assurance of the claim in a timely manner. In
the current Motion, Creatore moves to amend his Complaint to bring claims directly against
the insurance agent, First Place, for negligence, negligent misrepresentation and fraud, arising
from the alleged failure to submit Plaintiff’s claim to Assurance. First Place opposes the
proposed amendment on the grounds of timeliness and futility.
II. LAW AND ANALYSIS
If a pleading is not amended as a matter of course in the early stages of the case, then
Fed.R.Civ.P. 15(a)(2) provides: “In all other cases, a party may amend its pleading only with
the opposing party’s written consent or the court’s leave. The court should freely give leave
when justice so requires.” In deciding whether to allow amendment, a court may consider a
number of factors. “Undue delay in filing, lack of notice to the opposing party, bad faith by
the moving party, repeated failure to cure deficiencies by previous amendments, undue
prejudice to the opposing party, and futility of amendment are all factors which may affect the
decision.” Hageman v. Signal L.P. Gas, Inc., 486 F.2d 479, 484 (6th Cir.1973) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962)). “Delay by itself is not sufficient reason to deny a motion
to amend.” Id. (citation omitted). Nevertheless, when amendment is sought at a late stage in
the litigation, the movant has “an increased burden ... to show justification for the failure to
move earlier.” Duggins v. Steak ‘N Shake, Inc., 195 F.3d 828, 834 (6th Cir.1999) (citing
Holland v. Metropolitan Life Ins. Co., 869 F.2d 1490 (6th Cir.1989)).
Creatore has been inexcusably tardy in seeking to make direct claims against his

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insurance agent, First Place. As First Place notes in its opposition brief, Creatore is a licensed
attorney. (ECF DKT #44, fn. at 8). With that practical knowledge, and with the assistance of
retained counsel since 2009, Creatore has had ample opportunity to investigate available
causes of action, including negligence, misrepresentation and fraud. Although Creatore
alleges that he presented the Sayavich claim to First Place in 2003, Assurance has contended
from the very outset that it had no knowledge/notice of any such claim until October 2007.
Prior to suit, Assurance denied the claim in writing, in part for failure to report the claim in a
timely manner. (ECF DKT #44, Exhibit “A”). Assurance’s Answer (ECF DKT #5), filed on
September 8, 2009, presents the same defense. At the Court’s behest, the parties completed
initial discovery in preparation for a Court Mediation conference. In a publicly filed report
dated January 21, 2010, the Mediator comments that meaningful negotiations may depend on
the possible joinder of the insurance agent as a defendant or third-party defendant.
Ultimately, when Assurance sought leave, on May 3, 2011, to file a Third Party Complaint
against First Place, Creatore was reminded once again of First Place’s involvement:
Whether Creatore gave notice to First Place, and when that notice was given is
a central issue to Creatore’s allegations against Assurance. If First Place
received notice of the Sayavich Litigation from Creatore in April 2003 and did
not provide written notice to Assurance, and Assurance is held liable to
Creatore, First Place is or may be liable for all or part of Creatore’s claim. ***
Testimony, both deposition and trial, and production of documents will be
sought of First Place whether it is joined as third-party defendant in this matter
or not. (ECF DKT #30 at 4-5).
Still, Creatore waited until December 28, 2011 to seek to add his own direct claims against
First Place. Although delay, by itself, is not sufficient reason for denial of an amendment,
Creatore has not satisfied his “increased burden ... to show justification for the failure to move
earlier.” Duggins, supra.
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Moreover, the Court recognizes that First Place will be prejudiced by the assertion of
negligence, misrepresentation, and fraud causes of action against it at this late date. The fact
discovery deadline is April 30, 2012, and a Settlement Conference is scheduled for May 10,
2012. An amended complaint will necessitate re-opening discovery to some degree; and First
Place will have to re-direct its time and resources and formulate a different litigation strategy.
Such a result is especially egregious when the Court considers that this case has been pending
for almost three years, and arises from state court litigation initiated in 2003.
Finally, the proposed new claims of negligence (against an insurance agent), negligent
misrepresentation, and fraud have a four-year statute of limitations, pursuant to
R.C. § 2305.09. Because Creatore’s proposed amendment is likely futile and probably will
not survive a motion to dismiss, the Court has the discretion to deny him leave to amend.
III. CONCLUSION
For the reasons of unreasonable delay, significant prejudice, and likely futility, the
Motion (ECF DKT #43) of Plaintiff, Ronald M. Creatore (“Creatore”), for Leave to File an
Amended Complaint is denied.
IT IS SO ORDERED.
DATE: 04/30/12

s/Christopher A. Boyko
CHRISTOPHER A. BOYKO
United States District Judge

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