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LLC v. Wright Nat'l Flood Ins. Co.

United States District Court, E.D. Virginia, Newport News Division

August 10, 2016

SLAY'S RESTORATION, LLC, Plaintiff,
v.
WRIGHT NAT'L FLOOD INS. CO., et al., Defendants.

          MEMORANDUM ORDER

          Raymond A. Jackson United Slates District Judge

         This 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.[1] For the reasons set forth below, the Court GRANTS the Motions for Leave to File a Supplement. Dkts. 69, 72, 74.

         I. BACKGROUND

         A. Facts

         Plaintiff 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.

         B. Procedural History

         On 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.

         On 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.

         II. STANDARD OF REVIEW

         Under 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).

         "On 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, 182(1962)).

         III. ANALYSIS

         Defendants 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.[2]

         Defendants 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 ...


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