United States District Court, D. Connecticut
JEFFREY NAVIN and JOHN O'REILLY on behalf of themselves and of all others similarly situated, Plaintiffs,
WELLS FARGO BANK, N.A., WELLS FARGO INSURANCE, INC., ASSURANT INC., AMERICAN SECURITY INSURANCE COMPANY, AMERICA'S SERVICING COMPANY and HSBC BANK USA, Defendants.
MEMORANDUM AND ORDER
Michael P. Shea, U.S.D.J.
Jeffrey Navin-who died in 2015-and pro se plaintiff
John O'Reilly (collectively, “Plaintiffs”)
brought this lawsuit against the following Defendants: HSBC
Bank USA, N.A. (“HSBC”); Wells Fargo Bank, N.A.,
America's Servicing Company, and Wells Fargo Insurance,
Inc. (collectively, the “Wells Fargo
Defendants”); and Assurant Inc.
(“Assurant”) and its subsidiary American Security
Insurance Company (“ASIC”) (collectively, the
“Assurant Defendants”). (First Amended Complaint
(“FAC”), ECF No. 8 at 1.)
August 8, 2016, the Court dismissed Plaintiffs' claims
challenging Defendants' practice of forcing residential
borrowers, such as Navin, to pay for homeowners'
insurance that lenders obtained to protect their interest
when the homeowners failed to maintain their own insurance.
(ECF No. 113.) Plaintiff O'Reilly now moves to amend the
First Amended Complaint (ECF No. 114) by filing the proposed
Second Amended Complaint (ECF No. 117), and to substitute
Christopher Carveth, Esq., administrator of the estate of
Jeffrey Navin, as the proper plaintiff in this action. (ECF
reasons discussed below, the motions are DENIED.
assume familiarity with the underlying facts and the decision
rendered on August 8, 2016. (ECF No. 113.) I recount certain
relevant procedural facts below.
filed their Complaint on May 5, 2015. (ECF No. 1.) On June
19, 2015, Plaintiffs amended their pleading and filed the
FAC. (ECF No. 8.) On or about October 30, 2015, Navin was
declared to have died. (ECF No. 116 at 1.) Defendants filed a
Suggestion of Death on November 20, 2015. (ECF No. 97.) On
December 1, 2015, Christopher Carveth, Esq. was appointed by
the Trumbull Probate Court to be the administrator of
Navin's estate. (ECF No. 115-1 at 9.)
August 8, 2016, the Court dismissed the FAC and denied
O'Reilly's motion to substitute himself for Navin.
(ECF No. 113.) The Court ruled that O'Reilly's motion
to substitute himself for Navin failed under
Connecticut's Survival Statute, Conn. Gen. Stat. §
52-599(a), which made the proper party for substitution the
executor or the administrator of Navin's estate. (ECF No.
113 at 11.) The Court also ruled that, for his own part,
O'Reilly failed to state a claim on which relief could be
granted. The Court provided O'Reilly thirty days within
which to file a motion to amend or supplement the FAC, a
statement explaining why the Court should grant him leave to
amend or supplement the FAC given the potential obstacles of
futility, bad faith, and prejudice, and a copy of his
proposed supplemental or amended pleading. (ECF No. 113 at
September 6, 2016, O'Reilly filed a motion to amend the
FAC and a motion to substitute Christopher Carveth for Navin
as the proper plaintiff. (ECF Nos. 114, 116.) O'Reilly
filed a proposed Second Amended Complaint on September 7,
2016. (ECF No. 117.) Defendants filed a joint opposition to
both of O'Reilly's motions on October 6, 2016 (ECF
No. 118.) Carveth also filed a memorandum in opposition to
O'Reilly's motion to substitute, representing that he
had decided not to pursue the claims belonging to Navin's
estate. (ECF No. 121.)
provides that “[i]f a party dies and the claim is not
extinguished, the court may order substitution of the proper
party. A motion for substitution may be made by any party or
by the decedent's successor or representative. If the
motion is not made within 90 days after service of a
statement noting the death, the action by or against the
decedent must be dismissed.” Fed.R.Civ.P. 25(a)(1).
Whether a person is “the proper party” is
“a question of state law.” Coleman v. Sys.
Dialing LLC, No. 15 CV 3868 (DLC), 2016 WL 1169518, at
*2 (S.D.N.Y. Mar. 22, 2016); Falls v. Novartis Pharm.
Corp., No. 3:13-CV-270 (JBA), 2014 WL 3810246, at *2 n.3
(D. Conn. Aug. 1, 2014) (noting that “state substantive
law determines whether a claim survives death”).
Connecticut's Survival Statute provides that “[a]
cause or right of action shall not be lost or destroyed by
the death of any person, but shall survive in favor of or
against the executor or administrator of the deceased
person.” Conn. Gen. Stat. § 52-599(a).
trial, “a party may amend its pleading only with the
opposing party's written consent or the court's
leave, ” which the Court should “freely give . .
. when justice so requires.” Fed.R.Civ.P. 15(a)(2). In
addition, “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).
Despite the liberal standard for amending or supplementing
pleadings, “[a] district court has discretion to deny
leave for good reason, including futility, bad faith, undue
delay, or undue prejudice to the opposing party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 200 (2d Cir. 2007) (citing Foman v. Davis, 371
U.S. 178, 182 (1962)). See also Quaratino v. Tiffany
& Co., 71 F.3d 58, 66 (2d Cir. 1995) (holding that a
motion to supplement will be granted “[a]bsent undue
delay, bad faith, dilatory tactics, undue prejudice to the
party to be served with the proposed pleading, or
futility”). “In this Circuit, it is well settled
that an amendment is considered futile if the amended
pleading fails to state a claim or would be subject to a
motion to dismiss on some other basis.” Gilbert,
Segall & Young v. Bank of Montreal, 785 F.Supp. 453,
457 (S.D.N.Y. 1992); see also Kalimantano GmbH v. Motion
in Time, Inc., 939 F.Supp.2d 392, 403 (S.D.N.Y. 2013)
(“‘Futility' under Rule 15 turns on whether
the proposed pleading would state a claim upon which relief
could be granted.”) (quoting Dougherty v. N.
Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87-88 (2d