United States District Court, D. Connecticut
RULING ON PLAINTIFFS' MOTION FOR LEAVE TO
A. Bolden United States District Judge.
January 29, 2016, Plaintiffs, homeowners in Hartford, Tolland
or Windham Counties in Connecticut brought a Class Action
Complaint against their homeowners' insurance companies
(collectively “Defendants”). ECF No. 1. Currently
pending before the Court is Plaintiffs' motion for leave
to file a Fourth Amended Complaint. See ECF No. 462.
motion will be GRANTED for the reasons
FACTUAL AND PROCEDURAL BACKGROUND
are individuals who either own homes or previously owned
homes in Hartford, Tolland and Windham Counties in
Connecticut. See Substituted Third Amended Class
Action Complaint (“STAC”) ¶ 1, ECF No. 352.
They allege that each of their homes' basement walls are
crumbling due to the oxidation of iron sulfide minerals
present in the concrete; the oxidation causes the concrete to
swell and crack and, “[u]ltimately, the Plaintiffs'
homes will fall into their basements.” Id.
¶ 2. Additionally, Plaintiffs claim their homes are
impossible to sell and that the only solution to fix the
cracking is to replace the basement walls. Id.
allege that they held homeowners insurance policies with
Defendants, various insurance companies. They claim that,
despite the damage and the policy coverage, Defendants
wrongly denied coverage or will deny coverage. Id.
¶ 3. Plaintiffs filed this lawsuit against Defendants
“individually and on behalf of others who are
similarly-situated because they (1) have basement walls that
are irreversibly deteriorating and failing and (2) have
claims that have been denied or will be denied by the
Defendant Insurance Companies.” Id. ¶ 4.
They allege breach of contract, breach of the implied
warranty of good faith and fair dealing, and violations of
the Connecticut Unfair Trade Practices Act (CUTPA) and the
Connecticut Unfair Insurance Practice Act (CUIPA).
filed the first complaint in this case on January 29, 2016.
See Compl. ECF No. 1. The initial complaint included
seven named plaintiffs and more than one hundred defendants,
all insurance companies. Id. ¶¶ 2. Before
Defendants had responded, Plaintiffs filed an amended
complaint that included additional defendants and claims on
March 17, 2016. See First Amend. Class Action
Compl., ECF No. 122. Plaintiffs then moved to certify a
class, which they defined as:
All individuals who own a home in the Connecticut towns of
Manchester, Andover, Ellington, Stafford Springs or any other
Connecticut town located east of the Connecticut River whose
homes are insured by any of the Insurance Defendants, and
whose homes have sustained ‘pattern cracking'
including but not limited to horizontal and vertical cracks
on their basement walls, and whose bad foundation claims have
been denied or will be denied by the Insurance Defendants,
which denials are or will be based on the same standardized
language regarding the term ‘collapse', the term
‘basement', the term ‘foundation', the
term ‘decay', the term ‘hidden', and the
term ‘retaining wall.'
Pls. Mot. for Class Certification, ECF No. 158.
parties then sought different case management orders.
See Pls. Proposed Case Management Order, ECF No.
239; Certain Defs. Non-Consented Mot. For Entry of Proposed
Case Management Plan, ECF No. 240. The Court, in addressing
these motions, provided that any motion for leave to file an
amended complaint would be due by May 6, 2016. Order, ECF No.
254. It also denied Plaintiffs' motion for class
certification without “prejudice to renewal following
the Court's resolution of any motion to amend, and
motions to dismiss directed at the amended complaint.”
then moved for leave to file a second amended complaint on
May 7, 2016. See Pl Mot. for Leave to Amend, ECF No.
290. Plaintiffs sought to add nine additional plaintiffs and
four additional defendants, and to remove three defendants.
Id. at 4-5. Plaintiffs also sought to add additional
causes of action for breach of contract and breach of the
implied covenant of good faith and fair dealing. Id.
Defendants did not oppose amendment. See Defs.
Resp., ECF No. 309. The Court granted the motion, noting the
lack of objection. Order, ECF No. 323.
parties then moved to amend the scheduling order, and
Plaintiffs stated that they intended to file a third amended
complaint. ECF No. 325. The Court granted the request and
stayed responsive pleadings regarding the Second Amended
Complaint. See Order, ECF No. 326.
moved to amend the complaint and join additional parties on
October 31, 2016; they sought to add nineteen new plaintiffs
and reduce the overall number of defendants to thirty.
See Pls. Mot. for Leave to Amend., ECF No. 332.
Defendant State Farm Fire and Casualty Company opposed
amendment, but other parties stated they had no opposition.
Compare State Farm Fire and Casualty Co. Mem. of L.
in Opp., ECf No. 337 (opposing Plaintiffs' motion for
leave) with Defs. Resp., ECF No. 338 (“In the
interest of judicial efficiency and economy for all parties
and this Court, the Defendants listed in Exhibit 1 do not
oppose Plaintiff's Motion insofar as it seeks leave to
file a Third Amended Complaint.”).
the Court addressed the motion, however, Plaintiffs moved for
leave to file a substituted third complaint on December 12,
2016. See Pl. Mot., ECF No. 339. Plaintiffs stated
that the proposed “Substituted Third Amended
Complaint” corrected a number of errors, deleted
references to individuals and companies not in the case,
corrected a number of errors in dates, damage estimates, and
party names, and dropped a number of claims. Id.
Defendants, in large part, again did not oppose amendment,
although they noted that “the proposed Substituted
Third Amended Complaint is Plaintiffs' fifth complaint in
this case” and “[e]ach such amendment has not
only delayed joinder of issue, but has caused Defendants to
incur significant and unnecessary expenses in defending
themselves.” Defs. Resp. ¶ 1, ECF No. 340.
Defendants did request, however, that further amendment be
barred unless Plaintiffs demonstrated good cause under
Federal Rule of Civil Procedure 16. Id. ¶ 2.
Court granted Plaintiffs' motion and allowed the
Substituted Third Amended Complaint to be filed. See
Order on Mot. Amend Compl., ECF No. 350. The Court noted
Defendants' consent. Id. at 1. This Court denied
the Defendants' request to preclude future amendments
unless Plaintiffs could show good cause: “Defendants
cite no authority supporting their request that the Court
preemptively impose a good cause standard on Plaintiffs'
potential future requests to further amend the complaint in
this case. The Court will not, therefore, order that
Plaintiffs be precluded from any further amendments to the
complaint in the absence of good cause.” Id.
at 2. Plaintiffs subsequently filed the Substituted Third
Amended Complaint, ECF No. 352.
then filed numerous motions to dismiss. This included joint
motions to dismiss several shared counts, ECF No. 373, and to
strike the class allegations, ECF No. 375. Individual
defendants also filed separate motions to dismiss.
See Travelers Defs. Mot. Dismiss, ECF No. 377;
Citizens Ins. Co. Mot. Dismiss., ECF No. 379; Bunker Hill
Ins. Co., ECF No. 381; New London Cty. Mutual Ins. Co. Mot.
Dismiss, ECF No. 384; Trumbull Ins. Co. Mot. Dismiss, ECF No.
387; Allstate Ins. Co. Mot. Dismiss, ECF No. 391;
Metropolitan Group Mot. Dismiss, ECF No. 394; Kemper
Independence Ins. Co. Mot. Dismiss, ECF No. 397; Liberty
Entities' Mot. Dismiss, ECF No. 399; Homesite Ins. Co.
Mot. Dismiss, ECF No. 401; Amica Ins. Co. Mot. Dismiss, ECF
No. 403; State Farm Mot. Dismiss, ECF No. 405; Merrimack Mutual
Fire Ins. Co. Mot. Dismiss, ECF No. 409; American Commerce
Ins. Co. Mot. Dismiss, ECF No. 411; NGM Ins. Co. Mot.
Dismiss, ECF No. 413; CSAA Fire and Cas. Ins. Co. Mot.
Dismiss, ECF No. 415; Nationwide Property And Cas. Ins. Co.
and Harleysville Preferred Ins. Co. Mot. Dismiss, ECF No.
416; Middlesex Mutual Assurance Co. Mot. Dismiss, ECF No.
420. Plaintiffs responded to these motions on September 15,
2018. See Pl. Mem. in Opp. re Mot. to Strike, ECF
No. 475; Pls. Resp. to Mot. to Dismiss and Mot. to Sever, ECF
No. 456; Pl. Mem. in Opp. Combined, ECF No. 458.
then filed the pending motion to amend on September 25, 2017,
seeking leave to file a Fourth Amended Complaint, ECF No.
462. They stated they sought leave to amend to delete parties
and claims that are no longer being pursued in light of the
issues raised in various motions to dismiss, delete
references to individuals and companies not in the case, add
counts between existing parties, and correct errors, missing,
or confusing information. Id. at 1-2.
then moved to stay briefing on the pending motions to dismiss
until the Court issued its ruling on the motion to amend.
See Defs. Mot. to Stay, ECF No. 463. Plaintiffs
opposed the Defendants' motion to stay briefing. ECF No.
September 29, 2017, the Court amended the scheduling order.
Order Amen. Sched. Order, ECF No. 470. The Court ordered
Defendants to respond to the motion for leave to file a
Fourth Amended Complaint within forty-five days. Id.
at 2. Furthermore, the Court ordered that, should the Court
deny leave to amend, Defendants would have thirty (30) days
to file replies to the pending motions or, if the Court
granted the motion, Defendants would have forty-five (45)
days to answer, move to dismiss, or otherwise respond to the
Fourth Amended Complaint. Id.
filed two objections to the leave to amend. First, a group of
defendants jointly argue that, while the Court has the
discretion to grant leave, it should not do so here because
granting Plaintiffs' motion would lead to significant
delay and increased litigation costs. Certain Defs. Opp. to
Pls. Mot. (“Certain Defs. Opp.”), ECF No.
Certain Defendants note that “[a]fter nearly two years,
this case has not progressed beyond the threshold pleadings
phase.” Id. at 2. They note that multiple
defendants filed motions to dismiss, which they argue would
have to be completely redrafted should the Court grant leave.
But they argue that “[f]urther delay and re-briefing
make no sense in terms of judicial economy and sound case
management.” Id. at 3. Alternatively, Certain
Defendants argue that the Court should prospectively bar any
further amendment, id. at 6, and ask that the Court
declare the pending motions to dismiss and motions to strike
moot and allow them to be refiled. Id. at 7.
Middlesex Mutual Assurance Company (“MMAC”) filed
an additional response to the motion for leave. Middlesex
Mutual Assurance Co. Response (“MMAC Resp.”), ECF
No. 481. MMAC states that “Plaintiffs seek to amend the
complaint to allow Plaintiffs David and Patricia Kandrysawtz
and Plaintiff Kathleen Noblet to add eight entirely new
claims against MMAC.” MMAC Resp. at 1. MMAC argues that
leave to amend should be denied because it asserts that both
Ms. Noblet's and the Kandrysawtzs' claims were
unreasonably delayed and those plaintiffs' claims are
based upon facts they should have known at the filing of the
Substituted Third Amended Complaint. See MMAC Resp.
at 6-7. MMAC also argues that leave to amend should be denied
as to the Kandrysawtzs' claims because it argues that
their claims are time-barred and do not relate back to the
original complaint, and the amendment therefore would be
futile. MMAC Resp. at 7-12. Finally, MMAC argues, along
similar lines as Certain Defendants, that it will be
prejudiced if leave were to be granted because “MMAC
would have to redraft and re-file dispositive motion papers
addressing wholly new allegations . . . inexplicably omitted
from the first five versions of this Complaint.” MMAC
Resp. at 14.
filed a reply. See Pls. Rep., ECF No. 474. They
argue that both Certain Defendants and MMAC have failed to
show that they would be prejudiced by the amendment, and that
the alleged burden-redrafting and refiling motions to
dismiss-does not qualify as prejudice. Id. at 1.
They also argue that the Kandrysawtzs' claims are not
frivolous, and therefore not futile. Id. Finally,
Plaintiffs argue the Court should “deny Certain
Defendants' request that the Court enter an order barring
all further amendments of the Complaint unless ‘good
cause' is shown as unwarranted and unnecessarily