Mann Bracken, LLP v. Executive Risk Indemnity, Inc., No. 8:2015cv01406 - Document 26 (D. Md. 2015)
Court Description: MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 12/9/2015. (sat, Chambers)
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Mann Bracken, LLP v. Executive Risk Indemnity, Inc. Doc. 26 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : MANN BRACKEN, LLP : v. : Civil Action No. DKC 15-1406 : EXECUTIVE RISK INDEMNITY, INC. : MEMORANDUM OPINION Presently pending and ready for review in this insurance case is a motion for reconsideration and leave to file an amended complaint filed by Plaintiff Cheryl E. Rose, acting in her official capacity (“Plaintiff”). briefed, and as receiver (ECF No. 24). the court now Local Rule 105.6. motion reconsideration for Mann Bracken, LLP The relevant issues have been rules, necessary. of no hearing being deemed For the following reasons, the and for leave to amend will be denied. I. Background A full recitation of the facts is included in this court’s September 28, Accordingly, motion will undersigned Executive 2015 only be additional discussed granted Risk Memorandum a Opinion. facts here. motion Indemnity, On to relevant ECF to September dismiss Inc. (See the 28, filed (“Executive No. by 22). pending 2015, the Defendant Risk” or Dockets.Justia.com “Defendant”). The complaint was dismissed because “Plaintiff had not pled facts showing that its untimely claim and/or report is covered” by Specifically, Defendant’s the insurance complaint failed policy. to (Id. plead with at 23). sufficient detail and support that Mann Bracken sent notice to Executive Risk during information the and policy belief” period, that and instead notice was pleaded “upon provided. The undersigned noted that because “Plaintiff, as receiver for Mann Bracken, would uniquely have access to Mann Bracken’s documents and records[,]” she was required to plead specificity than “upon information and belief.” with greater (Id. at 20-21). On October 22, Plaintiff filed the pending motion. No. 24). (ECF Defendant filed a response in opposition (ECF No. 25), and Plaintiff has not replied. II. Standard of Review Plaintiff has moved for reconsideration and leave to amend her complaint. In Katyle v. Penn Nat. Gaming, Inc., the United States Court of Appeals for the Fourth Circuit explained that a district court may not grant a post-judgment motion to amend the complaint unless the court first vacates its judgment pursuant to Fed.R.Civ.P. 59(e) or 60(b).1 1 637 F.3d 462, 470 (4th Cir. A party may move to alter or amend a judgment under Rule 59(e), or for relief from a judgment or order under Rule 60(b). See Fed.R.Civ.P. 59(e) & 60(b). A motion to alter or amend filed within 28 days of the judgment is analyzed under Rule 2 2011); City of Fredericksburg, Virginia, 710 F.3d 536, 539 (4th Cir. 2013). The Fourth see also Circuit Calvary further Christian stated that Center “[t]o v. determine whether vacatur is warranted, . . . the court need not concern itself with either of those rules’ legal standards.” at 471. Katyle, 637 F.3d Katyle held that: [t]he court need only ask whether the amendment should be granted, just as it would on a prejudgment motion to amend pursuant to Fed.R.Civ.P. 15(a). In other words, a court should evaluate a postjudgment motion to amend the complaint ‘under the same legal standard as a similar motion filed before judgment was entered – for prejudice, bad faith, or futility.’ Laber v. Harvey, 438 F.3d 404, 427 (4th Cir. 2006); accord Matrix Capital Mgmt. Fund, LP v. Bearingpoint, Inc., 576 F.3d 172, 193 (4th Cir. 2009). 637 F.3d at 471; see also United States v. Shabazz, 509 F.App’x. 265, 266 (4th Cir. 2013). “An amendment is futile when the proposed amendment is clearly insufficient or frivolous on its face, or if the amended claim would still fail to survive a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” El–Amin v. Blom, No. CCB–11–3424, 2012 WL 2604213, at *11 (D.Md. July 5, 2012) (citations and internal quotation marks omitted). 59(e); if the motion is filed later, Rule 60(b) controls. See Rule 59(e); MLC Auto, LLC v. Town of S. Pines, 532 F.3d 269, 280 (4th Cir. 2008). Here, Plaintiff moved pursuant to Rule 60, but her motion is appropriately analyzed under Rule 59(e) because it was filed within 28 days of entry of the court order. 3 III. Analysis Plaintiff seeks to amend the complaint to plead additional facts and offer additional evidence to show that Mann Bracken provided notice to Executive Risk within the policy period.2 This additional evidence includes an affidavit from Mr. Connell Loftus, Mann Bracken’s former managing partner; a copy of e-mail correspondence from December 21, 2009 between Mr. Loftus and another Mann Bracken attorney regarding the drafting of “a letter putting Axiant’s insurance carrier on notice of a breach of contract;” and a copy of the draft letter. Plaintiff argues that the proposed (ECF No. 24-1). amendments will “provide sufficient facts to demonstrate that timely notice was provided to” Executive Risk. (ECF No. 24, at 2). In addition, she notes that the evidence “shows the clear intent to notice” Executive Risk. Defendant counters that the proposed amendment would be futile because the additional evidence contains factual errors and does not plausibly show that Mann Bracken actually provided notice to Executive Risk during the policy period. at 5-9). (ECF No. 25, Defendant asserts that Mr. Loftus’ “recollection” that notice was mailed to “Axiant’s insurer” is not sufficient to survive a motion to dismiss. 2 Unfortunately, because Plaintiff does not provide the court with a proposed amended complaint as required by this court’s Local Rules, see Local Rule 103.6, the nature of the proposed amendments must be discerned from Plaintiff’s pending motion and attachments. (ECF Nos. 24; 24-1). 4 Plaintiff’s proposed amendments are futile fail to cure fully the complaint’s deficiencies. because they Although the letter, if actually sent to Executive Risk, would have provided notice, there was still no claim against Axiant until January 15, 2010 at the earliest, when Mann Bracken filed its proof of claim in Axiant’s bankruptcy proceeding. 5). (See ECF No. 15, at The policy’s advance notice procedure, which may allow for notice of a wrongful act to be provided to Executive Risk before a claim is made against Axiant, still requires “written notice of such claim [to be] given to [Executive Risk] as soon as practicable after [the claim] is first made.” (ECF No. 8-3, at 14 22, (emphasis Plaintiff’s added); proposed see also amendments ECF do No. not at plead 21-22). facts that plausibly show Executive Risk was given timely written notice after the alleged claim was first made. written notice asserted in the Executive Risk on February 8, 2012. Rather, the only other complaint was provided (ECF No. 2 ¶¶ 69-71). to Such notice was neither within the policy period nor given as soon as was practicable after the alleged claim was filed on January 15, 2010. Moreover, Plaintiff’s proposed amendments do not plausibly show that Mann Executive Risk. Bracken actually provided written notice to Rather, Plaintiff provides a first draft of an 5 unsigned, unaddressed, and incorrectly dated letter.3 The brief e-mail correspondence indicates that Mann Bracken did not know who Axiant’s insurer was at the time, and Executive Risk is not mentioned in the draft letter or e-mails. Thus, the attached materials merely show that Mann Bracken was in the early stages of contemplating Axiant. that slightly notice to an unnamed insurer of Mr. Loftus avers in his affidavit, “My recollection is [the] insurer.” providing letter was mailed by (ECF No. 24-1 ¶ 31). more definitive than “upon Mann Bracken to Axiant’s Such a statement is only information and belief.” Mr. Loftus’ “recollection,” combined with the early stage draft letter and inconclusive e-mail correspondence, is insufficient to cure the complaint’s “woefully inadequate” allegations. ECF No. 22, at 21). (See The proposed amendments are futile because they “have not nudged [Plaintiff’s] claims across the line from conceivable to plausible.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). 3 Defendant implies that the draft letter may not be authentic because it is dated October 9, 2015. The date rouses suspicion, but it does not necessarily show inauthenticity. It is possible that the date automatically updated when Plaintiff or Mr. Loftus retrieved it. It fails, however, to reveal if the draft is actually from December 21, 2009 or some later date. 6 IV. Conclusion For the foregoing reasons, Plaintiff’s motion for reconsideration and leave to file an amended complaint will be denied. A separate order will follow. /s/ DEBORAH K. CHASANOW United States District Judge 7
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