United States District Court, N.D. Alabama, Middle Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
a civil action. Pending before the Court are the following
• Randy Jones & Associates (“Jones”) and
Jon Pair (“Pair”) Motion To Dismiss the third
party complaints of Ramuji LLC (“Ramuji”) and
Peoples Independent Bank (“PIB”). (Doc. 95 at
• PIB Motion To Amend its third-party complaint (Doc.
106 at 1-2).
ease of understanding, convenience, and simplicity, the Court
will take up both the PIB Motion To Amend (doc. 106) and the
Jones/Pair Motion To Dismiss (doc. 95) together.
RELEVANT BACKGROUND AND PROCEDURAL HISTORY
motions are a part of a larger case initiated by Catlin
Syndicate on August 16, 2016, regarding different insurance
policies insuring the same property (which suffered a fire
loss). See (doc. 1 at 1-6); (doc. 93 at 2-10). Over
the course of the litigation, there have been counterclaims
(doc. 9 at 1), intervenors (doc. 87 at 6), and, at issue
here, third-party complaints.
and PIB both claim insured status under the Catlin Syndicate
policy. Each of them separately filed third-party complaints
against Jones and Pair, the brokers who allegedly committed
negligence, wantonness, and breach of contract among other
claims. See (doc. 49); (doc. 46). There are several
versions of these third-party complaints. PIB filed a
third-party complaint on September 19, 2016. (Doc. 12 at 18).
Ramuji filed a third-party complaint on September 23, 2016.
(Doc. 15 at 1). PIB then filed an amended third-party
complaint on January 24, 2017. (Doc. 46 at 15). Ramuji then
filed an amended third-party complaint on January 24, 2017.
(Doc. 49 at 1). PIB then restated its third-party complaint.
(Doc. 98 at 1). On September 7, 2017, PIB moved the Court for
leave to amend its third-party complaint once again. (Doc.
106 at 2).
the Court grant PIB's Motion To Amend, this would mean
that the most recent third-party complaint by PIB would be
document 106. The most recent third-party complaint by Ramuji
would be document 49.
third party complaint against Jones and Pair alleges
negligence (doc. 49 at 12), wantonness (doc. 49 at 14),
breach of contract (doc. 49 at 16), fraud/misrepresentation
(doc. 49 at 17), and conspiracy to commit
fraud/misrepresentation (doc. 49 at 19). “Pair and
Jones procured the policy in question which Underwriters at
Lloyd's are attempting to avoid.” (Doc. 49 at 4).
In its third-party complaint, Ramuji details its perspective
on how Pair and Jones failed to provide proper insurance
brokerage. (See doc. 49 at 4-12).
STANDARDS AND ISSUES PRESENTED
issue as to the Motion To Dismiss is whether Ramuji's
claims against Jones and Pair are ripe under Rule 12(b)(1).
(See doc. 95 at 6-10) Also at issue is whether Jones
and Pair were properly joined under Rule 14. (See
doc. 95 at 11-14). At issue as to the Motion To Amend is the
Rule 15 standard. The Court will explain each standard in the
course of its analysis of each issue.
Whether To Grant the PIB Motion To Amend (Doc. 106)
September 7, 2017, PIB filed a Motion To Amend Its Amended
Answer, Counterclaim, and Third Party Complaint. (Doc. 106).
This Motion To Amend would bring back claims the Court
dismissed in its Memorandum Opinion and Order. See
(Doc. 105 at 33-34); (Doc. 107 at 2-6); (Doc. 108 at 2-4). In
this Court's Memorandum Opinion and Order, dated August
18, 2017, the Court dismissed many of PIB's claims. (Doc.
105 at 33-34). However, the Court did not specify if the
dismissal was with, or without, prejudice. (Doc. 105 at
The Scheduling Order from November 16, 2016, states as
Plaintiff(s) may amend pleadings and/or join additional
parties, in accordance with Fed.R.Civ.P. 15, until June 9,
2017. Defendant(s) may amend pleadings and/or join additional
parties, in accordance with Fed.R.Civ.P. 15, until June 9,
Court entered an order on March 29, 2017, “[e]xtending
All Deadlines In The Scheduling Order, DOC 31 by 90
days.” (Doc. 72). The Court entered another Order on
June 19, 2017, “[e]xtend[ing] all Deadlines in
Scheduling Order by 120 days.” (Doc. 86). 90 days (the
amount of time extended in the Doc. 72 order) from June 9,
2017, (the original deadline for amending pleadings in Doc.
31) is September 7, 2017. 120 days (the amount of time
extended in the Doc. 86 order) from September 7, 2017, is
January 5, 2018. Therefore, PIB's amended pleadings are
timely under the Scheduling Order as amended.
Rule of Civil Procedure 15(a) states as follows:
(a) Amendments Before Trial.
(1) Amending as a Matter of Course.
A party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a
responsive pleading or 21 days after service of a motion
under Rule 12(b), (e), or (f), whichever is earlier.
(2) Other Amendments. 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.
(3) Time to Respond. Unless the
court orders otherwise, any required response to an amended
pleading must be made within the time remaining to respond to
the original pleading or within 14 days after service of the
amended pleading, whichever is later.
Fed. R. Civ. P. 15(a).
September 13, 2017, the Underwriters partially opposed the
Motion To Amend. (Doc. 107). The “Underwriters object
to PIB's Motion to the extent the proposed amended
pleadings re-assert claims that have already been adjudicated
on the merits.” (Doc. 107 at 4). The Underwriters cited
cases basically holding that “unless
otherwise specified, a dismissal for failure to state a
claim under Rule 12(b)(6) is presumed to be both a
judgment on the merits and to be rendered with
prejudice.” (Doc. 107 at 3) (quoting
another source) (emphasis added by Underwriters). The
“Underwriters do not object the Motion to the extent
that Motion seeks leave of Court to file an amended pleading
which includes new allegations about causes of action
that were not previously dismissed by the Court.”
(Doc. 107 at 4).
September 22, 2017, PIB replied. (Doc. 108 at 2). In that
reply PIB freely admits the amended pleadings are in response
to this Court's Memorandum Opinion and Order (Doc. 105).
(Id.). PIB also stated that the amended pleadings
are “intended to satisfy any pleading requirements so
that PIB may proceed on all of its claims against
Plaintiff Catlin Syndicate Limited (Counterclaim Defendant)
and all Third Party Defendants.”
(Id.) (emphasis added). ...