United States District Court, E.D. Virginia, Newport News Division
Raymond A. Jackson United Slates District Judge
matter is before the Court on Defendants' three (3)
Motions for Leave to File a Supplement, Dkts. 69, 72, 74, to
their Motions to Dismiss, Dkts. 24, 26, 28, 63. For the reasons
set forth below, the Court GRANTS the Motions for Leave to
File a Supplement. Dkts. 69, 72, 74.
Slay's Restoration, LLC restores buildings damaged by
natural disasters. Compl. ¶ 5. Defendant KLSM Consulting
is a Florida consulting and appraisal firm. See Id .
¶ 6. Defendant CIS Specialty Claims Services
("CIS") is a Texas adjusting and consulting firm.
See Id . ¶ 7. Defendant Colonial Claims is a
Florida adjusting firm. Id. ¶ 8. Defendant
Wright National Flood Insurance Company ("Wright
Flood") is a Florida insurance company carrying Write
Your Own ("WYO") insurance policies as a
participant in the National Flood Insurance Program
("NFIP"). Id. ¶ 9. Defendant Woodard
is a natural person residing in Texas and employed as a
mitigation reviewer by "either KLSM Consulting or
CIS." See Id . ¶ 10. Defendant Nicholl is
a natural person residing in Florida and employed by Wright
Flood. Id. ¶ 11. Defendant Carmelia is a
natural person residing in Florida and employed as a loss
consultant by KSLM Consulting. See Id . ¶ 12.
Defendant Kaiser is a natural person residing in Florida and
was employed as a mitigation professional by KLSM Consulting.
See Id . ¶ 13.
December 22, 2015, Plaintiff filed a one-count Complaint in
this Court. Compl. On February 8, 2016, Defendant Colonial
Claims filed a Motion to Dismiss, Dkt. 24, as did Defendants
CIS and Sammy Woodard, Dkt. 26, and Wright Flood, Dkt. 28. On
February 26, Plaintiff filed Oppositions to the Motions to
Dismiss. Dkts. 40, 41, 42. On March 7, Defendant Colonial
Claims filed a Reply to Plaintiffs Opposition, Dkt. 56, as
did Wright Flood, Dkt. 57. On March 16, Plaintiff requested a
hearing on the pending Motions to Dismiss. Dkt. 58.
March 24, Defendant Nicholl filed a Motion to Dismiss. Dkt.
59. On April 11, Defendants KLSM Consulting and Kaiser filed
a Motion to Dismiss. Dkt. 63. On May 3, Defendant Colonial
Claims filed a Motion for Leave to File a Supplement, Dkt.
69, and Defendant Wright Flood filed a similar motion on May
4, Dkt 72, as did Defendants CIS, Woodard, KLSM Consulting,
and Kaiser on May 5, Dkt. 74.
STANDARD OF REVIEW
Local Rule 7(F)(1), after a motion has been "accompanied
by a written brief including the appropriate facts, reasons,
and authorities, "[n]o further briefs or written
communications may be filed without first obtaining leave of
Court." Loc. Civ. R. 7(F)(1).
motion and reasonable notice, the court may, on just terms,
permit a party to serve a supplemental pleading setting out
any transaction, occurrence, or event that happened after the
date of the pleading to be supplemented." Fed.R.Civ.P.
15(d); MercExchange, L.L.C. v. eBay, Inc., 660
F.Supp.2d 653, 657 (E.D. Va. 2007). A motion to file a
supplemental pleading is treated "nearly
identically]" to a motion to file an amended pleading:
"leave should be freely granted." Franks v.
Ross, 313 F.3d 184, 198 n. 15 (4th Cir. 2002); New
Amsterdam Cas. Co. v. Waller, 323 F.2d 20, *29 (4th Cir.
1963) (stating that motions to supplement pleadings
"ought to be allowed as of course, unless some
particular reason for disallowing them appears"). A
motion to file a supplemental pleading may be denied if
"good reason exists . . . such as prejudice to the
defendants, " id. (quoting Walker v. United
Parcel Serv., 240 F.3d 1268, 1278 (10th Cir. 2001)), or
"undue prejudice or delay or trial inconvenience, "
Bates v. W. Elec, 420 F.Supp. 521, 525 (E.D. Pa.
1976). The motion may also be denied if the amendment would
be futile or the movant has unduly delayed or acted in bad
faith. See Kemin Foods, L.C. v. Pigmentos Vegetates Del
Centro S.A. de C. V., 464 F.3d 1339, 1353 (Fed.
Cir. 2006) (citing Foman v. Davis, 371 U.S. 178,
seek to supplement their Motions to Dismiss with the April
30, 2016 Eastern District of New York opinion in Melanson
v. U.S. Forensic, LLC et al. No. 15cv4016-ADS-GRB, 2016
WL 1729493 (E.D.N.Y. Apr. 30, 2016). The filings on four (4)
of the pending Motions to Dismiss became ripe before
Melanson was decided.
argue that Melanson is applicable to this case
because the court in Melanson concluded that
"the Plaintiffs RICO claim is precluded by the
provisions of the NFIP, which provides the exclusive remedy
for all claims arising from a WYO carrier's handling of
claims under a [Standard Flood Insurance Policy]."
Id. at * 12. The decision resulted in the dismissal
of the plaintiffs entire complaint for failure to state a
claim. Id. at *6, 16. Defendants assert that
"Melanson involves similar claims against a
[WYO] flood insurer and multiple ...