Moore v. Knippenberg et al
Filing
28
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFFS MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT DKT. NO. 25 AND DENYING AS MOOT THE DEFENDANTS MOTION TO DISMISS DKT. NO. 4 . Court DIRECTS the Clerk to file the amended complaint Dkt. No. [25-1]. Signed by District Judge Irene M. Keeley on 3/22/2016. (Copy counsel of record )(jmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
KEVIN M. MOORE,
Plaintiff,
v.
//
CIVIL ACTION NO. 1:15CV193
(Judge Keeley)
ERIN KNIPPENBERG, LOTTIE WILHELM,
ALLSTATE INDEMNITY COMPANY,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
On January 29, 2016, the plaintiff, Kevin M. Moore (“Moore”),
filed a motion to amend his complaint in order to add Allstate
Indemnity Company (“Allstate”) as a defendant (Dkt. No. 25).
On
February 12, 2016, defendants Erin Knippenberg (“Knippenberg”) and
Lottie Wilhelm (“Wilhelm”) filed a response, opposing Moore’s
motion (Dkt. No. 26).
The question presented is whether, in light
of the Court’s previous ruling in Allstate’s favor in a companion
case, 1:13CV228, Moore’s motion to amend the complaint is futile.
For the reasons that follow, the Court FINDS it is not futile and
GRANTS Moore’s motion for leave to amend (Dkt. No. 25).
BACKGROUND
In September, 2009, Moore moved from his home in Burlington,
West Virginia, to the home of his wife in Keyser, West Virginia
(Dkt. No. 1-2 at 3-4).
He rented his Burlington home to a third
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
party, canceled his homeowner’s policy of insurance, and obtained
a landlord policy from Allstate.
Id. at 4.
In the fall of 2011,
after Moore and his wife divorced, he moved back into his home in
Burlington.
Id.
According to Moore, on December 22, 2011, he advised Wilhelm,
an employee in Knippenberg’s insurance office,1 of his move and
that he needed to switch his landlord policy back to a homeowner’s
policy.
Id.
Allegedly, Wilhelm told Moore that she would cancel
his landlord policy and issue a homeowner’s policy. Id. Following
his conversation with Wilhelm, Moore’s escrow payment on his
mortgage increased, and he assumed this was a consequence of the
increased insurance premium for the homeowner’s policy.
Id. at 4-
5.
On January 23, 2013, following a space heater malfunction,
Moore’s home in Burlington burned to the ground.
Id. at 5.
When
Moore notified Knippenberg of the loss, she advised him that
Wilhelm had not canceled the landlord policy, nor had she ever
issued a homeowner’s policy.
Id.
Pursuant to his existing
landlord policy of insurance, Allstate paid Moore $125,464 for his
dwelling, $6,273.20 for debris removal, and $6,273 for personal
1
Knippenberg is an agent of Allstate (Dkt. No. 25-1 at 2).
2
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
property, but refused to pay him for the contents of his home or
loss of use.
I.
Id.
The First Allstate Action2
On August 27, 2013, Moore filed suit in the Circuit Court of
Harrison County, naming Allstate, Knippenberg, and Ray Betler
(“Betler”), a claims adjuster for Allstate, as defendants (Dkt. No.
1-2 at 4).
Moore’s complaint contained four counts, including (1)
breach of contract, (2) violation of the covenant of good faith and
fair dealing, (3) violation of the West Virginia Unfair Claims
Settlement Practices Act, W. Va. Code § 33-11-4(9), and, (4)
punitive damages.
Id. at 7-10.
During the pendency of the state
case, Moore voluntarily dismissed his claims against Knippenberg
and Betler.
Id. at 50.
Allstate then removed the case to this Court (Dkt. No. 1 at
1).
Following oral argument, on February 11, 2015, the Court
concluded that no additional coverage existed beyond what Allstate
had already paid under the landlord policy (Dkt. No. 48 at 10).
Accordingly, it granted Allstate’s motion for summary judgment and
dismissed Moore’s complaint with prejudice.
2
Id.
Unless otherwise noted, all citations in this section refer
to Case No. 1:13CV228.
The citations in the remainder of the
opinion refer to the instant case, 1:15CV193.
3
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
On February 17, 2015, Moore sought to vacate, alter, or amend
the Court’s judgment based on a mistake in one footnote (Dkt. No.
50).3
The Court denied that motion, reiterating that Allstate had
paid Moore the full limits of coverage available under the policy
(Dkt. No. 52 at 1-2).
II.
The Instant Case
On
January
22,
2015,
while
the
Allstate
litigation
was
pending, Moore filed the instant case in the Circuit Court of
Marion County, naming as defendants Knippenberg, Wilhelm, and
Betler (Dkt. No. 1-2 at 2).4
counts.
Moore’s complaint contains five
These include (1) negligent procurement of adequate
insurance, (2) breach of contract, (3) negligent failure to reform
the policy of insurance, (4) violation of the West Virginia Unfair
Claims Settlement Practices Act, W. Va. Code § 33-11-4(9), and (5)
punitive damages.
Id. at 7-12.
On October 28, 2015, Knippenberg and Wilhelm removed the case
to this Court (Dkt. No. 1).
The Court dismissed Betler, who was
3
The Court had stated that the landlord policy did not
provide coverage for debris removal, when in fact it did (Case No.
1:13CV228, Dkt. No. 52 at 3).
4
Moore’s complaint, while substantially similar to his
previous complaint in the Allstate litigation, did not name
Allstate as a defendant (Dkt. No. 1-2).
4
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
not served within the time period required by Fed. R. Civ. P. 4(m)
(Dkt. No. 22).5
Thereafter, on November 4, 2015, Knippenberg and
Wilhelm moved to dismiss Counts Two and Three of the complaint
(Dkt. No. 4), and answered the remainder of Moore’s complaint (Dkt.
No. 6).
While the defendants’ motion to dismiss was pending, the Court
learned that Moore previously had filed an amended complaint in the
Circuit Court of Marion County, and directed him to file a copy of
that amended complaint, along with proof that he in fact had filed
it in state court (Dkt. No. 12).
(Dkt. No. 13).6
Moore did so on January 15, 2016
At a status conference on January 27, 2016, it
became clear that Moore had filed the amended complaint in state
court
on
October
30,
2015
(Dkt.
No.
25-3),
two
days
after
Knippenberg and Wilhelm’s removal of the case to this Court, and
5
The Court determined that Betler had been dismissed
effective October 18, 2015, in accordance with Judge Janes’ August
18, 2015, Order (Dkt. No. 22).
6
After Moore filed his amended complaint, the Court
erroneously denied as moot the pending motion to dismiss (Dkt. No.
14). It later vacated that order; hence, the motion to dismiss is
still pending (Dkt. No. 19).
5
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
five days before Knippenberg and Wilhelm filed their answer and
motion to dismiss.7
Pursuant to this Court’s Scheduling Order (Dkt. No. 23), on
January
29,
2016,
Moore
moved
for
leave
to
file
an
amended
complaint seeking to add Allstate as a defendant (Dkt. No. 25). In
his motion, Moore claims that he has shown good cause to amend his
complaint because (1) the statute of limitations has expired
against Allstate, and (2) the defendants “would not be prejudiced”
at this early stage in the litigation.
Id. at 2.
Knippenberg and
Wilhelm opposed Moore’s motion, contending the amendment would be
futile because the Court had ruled previously on Moore’s claims
against Allstate (Dkt. No. 26).
Moore never filed a reply.
The
matter is now ripe for disposition.
LEGAL STANDARD
Fed. R. Civ. P. 15 permits a plaintiff to amend his complaint
once as a matter of course either within 21 days after serving the
complaint or 21 days after service of a responsive pleading or a
motion under Rule 12(b), (e), or (f), whichever is earlier.
7
Fed.
The certified state court record from the Circuit Court of
Marion County contained no mention of an amended complaint (Dkt.
No. 3). Nonetheless, Moore has provided proof that he had filed
the amended complaint on October 30, 2015, at 11:40 A.M. (Dkt. No.
25-3).
6
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
R. Civ. P. 15(a)(1).
“In all other cases, a party may amend its
pleading only with the opposing party’s written consent or the
court’s leave.”
Fed. R. Civ. P. 15(a)(2).
give leave when justice so requires.
The Court must freely
Id.
Although the grant or denial of a motion to amend is within
the discretion of the Court, Scott v. Family Dollar Stores, Inc.,
733 F.3d 105, 121 (4th Cir. 2013), the United States Court of
Appeals for the Fourth Circuit has interpreted Rule 15(a)(2) to
require that “leave to amend a pleading should be denied only when
the amendment would be prejudicial to the opposing party, there has
been bad faith on the part of the moving party, or the amendment
would have been futile.”
Johnson v. Oroweat Foods Co., 785 F.2d
503, 509 (4th Cir. 1986) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
A court should deny leave to amend on the ground of futility
only “when the proposed amendment is clearly insufficient or
frivolous on its face.”
Johnson, 785 F.2d at 510.
Conjecture
about the underlying merits of the litigation should not enter into
the court’s decision as to whether to allow an amendment. Davis v.
Piper Aircraft Corp., 615 F.2d 606, 613-14 (4th Cir. 1980).
7
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
ANALYSIS
When he filed the amended complaint in state court, Moore
failed to amend as of right because the case had been removed two
days earlier.
See Ackerman v. ExxonMobil Corp., 734 F.3d 237, 249
(4th Cir. 2013) (“[T]he [removal] statute deprives the state court
of further jurisdiction over the removed case and . . . any postremoval actions taken by the state court in the removed case action
are void ab initio.”).
Moore then never attempted to file the
amended complaint in this Court until January 13, 2016, after the
Court ordered him to explain why he had never filed it (Dkt. No.
13).
Of course, the Court’s inquiry does not end the matter.
As
already noted, it must freely give Moore leave to amend when
justice so requires.
Fed. R. Civ. P. 15(a)(2).
To that end, it
must consider the timing of Moore’s attempted filing of the amended
complaint. It appears that Moore served Knippenberg and Wilhelm on
October 2, 2015.
W. Va. R. Civ. P. 4(d)(1)(D).
At that time, the
West Virginia Rules of Civil Procedure applied because the case was
still in state court and had not yet been removed.
See Camden v.
Wal-Mart Stores, Inc., 574 F. Supp. 2d 582, 587 (S.D.W. Va. 2008)
(“[W]hile State Court Rules of Civil Procedure apply to civil cases
8
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
initiated in State Court before removal to Federal Court, the
Federal Rules of Civil Procedure apply and govern procedure in
matters removed from Federal Court to State Court”).
Pursuant to
W. Va. R. Civ. P. 15(a), a party may amend his pleading in state
court “at any time before a responsive pleading is served. . . .”
(internal citations omitted).8
Under the West Virginia rule,
Moore’s amended complaint would have been timely filed had the case
remained in state court.
On October 28, 2015, however, Knippenberg and Wilhelm removed
the case to federal court, thereby triggering the applicability of
the Federal Rules of Civil Procedure.
587.
Camden, 574 F. Supp. 2d at
Under those rules, Moore was required to amend his complaint
within 21 days after serving it.9
Fed. R. Civ. P. 15(a)(1)(A).
And, under this Court’s Local Rules, “service by electronic means
is treated the same as service by mail for purposes of adding three
8
This was the same standard in federal court until the
December 2, 2009, amendment to Fed. R. Civ. P. 15(a). Under the
current rule, a plaintiff may only amend as of right within 21 days
after serving the complaint, or 21 days after the earlier of
service of a responsive pleading or certain motions under Rule 12.
Galustian v. Peter, 591 F.3d 724, 730 n. 4 (4th Cir. 2010).
9
Alternatively, although inapplicable here, if the pleading
is one to which a responsive pleading is required, a plaintiff may
amend within the earlier of 21 days after service of a responsive
pleading or 21 days after service of a motion under Rule 12(b),
(e), or (f). Fed. R. Civ. P. 15(a)(1)(A).
9
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
(3) days to the prescribed period to respond.”
(referring to Fed. R. Civ. P. 6(d)).
LR Gen. P. 5.06(g)
Pursuant to Fed. R. Civ. P.
5(b)(2)(C) and 6(d), a party such as Moore, who serves a complaint
by mail may add “3 days . . . after the [21-day] period would
otherwise expire . . .” for a total of 24 days.
6(d).
Fed. R. Civ. P.
Moore therefore had until October 29, 2015, to amend as of
right, calculated as 24 days from October 5, the next work day
after Moore served Knippenberg and Wilhelm.
See Fed. R. Civ. P.
6(a)(1)(A).
Moore filed his amended complaint, albeit in the wrong court,
on October 30, 2015, one day after the period for amendment as of
right ended under the Federal Rules.
He claims to have been
unaware that the defendants had removed the case.
He also claims
that the e-filing docket entries in state court did not reflect
that removal (Dkt. No. 25 at 1-2).
According to Moore, his
erroneous filing in the wrong court is excusable, given the
defendants’ removal of the case two days earlier, on October 28,
2015, at 4:22 P.M. (Dkt. No. 3-2 at 1).
The defendants contend that Moore’s amended complaint adding
Allstate as a defendant is futile in light of the Court’s earlier
ruling dismissing with prejudice Moore’s complaint, including
claims for breach of contract, bad faith, and punitive damages
10
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
(Case No. 1:13CV228, Dkt. No. 48 at 10).
It is undisputed,
however, that Moore’s complaint in the previous litigation did not
include claims of negligent procurement of adequate insurance or
failure to reform the insurance policy, both of which he raises
against Allstate in the amended complaint (Dkt. No. 25-1).
Indeed, the Court itself acknowledged Moore’s failure to plead
these claims in the previous Allstate litigation, noting that the
dispute really “center[ed] on whether Knippenberg, Allstate’s
insurance agent, acted negligently either by failing to procure a
homeowners [sic] policy for Moore, or by misrepresenting to him
that a homeowners [sic] policy was in place.” (Case No. 1:13CV228,
Dkt. No. 48 at 8).
Given Moore’s failure to plead those claims,
the Court could not have addressed them in the previous litigation.
See id.
In short, although three of the claims in Moore’s amended
complaint
appear
to
mirror
those
in
the
previous
Allstate
litigation and are likely subject to dismissal, the remaining two
are not duplicative.
Given the liberality of Rule 15, the Court
therefore declines to hold that Moore’s proposed amendment is
insufficient or frivolous.
Johnson, 785 F.2d at 510.
For the reasons discussed, the Court GRANTS Moore’s motion to
file an amended complaint (Dkt. No. 25), DIRECTS the Clerk to file
11
MOORE V. KNIPPENBERG ET AL.
1:15CV193
MEMORANDUM OPINION AND ORDER GRANTING THE PLAINTIFF’S
MOTION FOR LEAVE TO FILE THE AMENDED COMPLAINT [DKT. NO. 25] AND
DENYING AS MOOT THE DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 4]
the
amended
complaint
(Dkt.
No.
25-1),
and
DENIES
AS
MOOT
Knippenberg and Wilhelm’s motion to dismiss (Dkt. No. 4).
It is so ORDERED.
The Court DIRECTS the Clerk to transmit copies of this Order
to counsel of record.
DATED:
March 22, 2016.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
12
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