United States District Court, D. Colorado
CLARENDON NATIONAL INSURANCE COMPANY, as successor by way of merger with Sussex Insurance Company f/k/a Companion Property & Casualty Insurance Company and Companion Specialty Insurance Company, an Illinois Corporation, Plaintiff,
v.
CLAY STREET CONDOS, LLC, a Colorado limited liability company, ELEVATION BUILDERS, INC., a Colorado corporation, ELEVATION BUILDERS, INC. d/b/a Generation Development, a Colorado Corporation, and CLAY/28TH CONDOMINIUM ASSOCIATION, INC., a Colorado Non-Profit Corporation, Defendants.
ORDER
PHILIP
A. BRIMMER UNITED STATES DISTRICT JUDGE.
This
matter comes before the Court on Plaintiff Clarendon National
Insurance Company's Response to the January 23, 2019
Order to Show Cause (Docket No. 17) [Docket No. 18] and
Motion for Leave to File Second Amended Complaint [Docket No.
19].
Plaintiff
filed this lawsuit on December 27, 2018 seeking a declaratory
judgment that plaintiff has no duty to indemnify defendants
under the terms of the parties' insurance policy. Docket
No. 1. On January 7, 2019, the Court ordered plaintiff to
show cause why this case should not be dismissed due to the
Court's lack of subject matter jurisdiction. Docket No.
13. The Court noted that plaintiff's allegations
“on information and belief” were insufficient to
establish subject matter jurisdiction. Id. at 2-
3.
Additionally, the Court found that it was unable to determine
the citizenship of defendant Clay Street Condos, LLC
(“CSC”) because plaintiff had failed to identify
all of CSC's members or the citizenship of those members.
Id. at 3.
On
January 16, 2019, plaintiff filed a timely response to the
Court's show cause order [Docket No. 14] and an amended
complaint [Docket No. 16].On January 23, 2019, the Court
entered a second show cause order stating that
plaintiff's amended allegations were insufficient to
establish the citizenship of CSC. Docket No. 17.
Specifically, the Court found that plaintiff had not alleged
the domicile of Chris Lonigro, the only member of CSC's
sole member, Generation Development LLC. Id. at 1-2.
On January 30, 2019, plaintiff filed a response to the
Court's second show cause order [Docket No. 18] as well
as a motion for leave to file a second amended complaint
[Docket No. 19]. Plaintiff's proposed second amended
complaint aims to cure the pleading deficiencies identified
in the Court's January 23 show cause order by
affirmatively alleging that Mr. Lonigro is a citizen of
Colorado. See Docket No. 19-1 at 5, ¶
11.[1]
The
Court has not yet entered a Scheduling Order setting a
deadline for the amendment of pleadings. Accordingly, the
determination of whether to grant plaintiff's motion to
amend is governed exclusively by Federal Rule of Civil
Procedure 15(a), which provides that “[t]he court
should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2); see, e.g.,
Fernandez v. Bridgestone/Firestone, Inc., 105
F.Supp.2d 1194, 1195 (D. Colo. 2000) (finding that
plaintiff's motion to amend was “governed solely by
Fed.R.Civ.P. 15(a)” because it was filed prior to the
deadline for amendment of pleadings). Denying leave to amend
is generally only permissible “upon a showing of undue
delay, undue prejudice to the opposing party, bad faith or
dilatory motive, failure to cure deficiencies by amendments
previously allowed, or futility of amendment.”
Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th
Cir. 1993).
Plaintiff's
motion to amend does not raise any of these concerns. This
case is in its very early stages. If defendants have been
served, they have not yet entered appearances. Moreover,
plaintiff seeks to amend its complaint to cure deficiencies
identified in the Court's second show cause order, which
was entered after the filing of plaintiff's first amended
complaint. There is no basis for a finding of bad faith,
dilatory motive, or failure to cure deficiencies by prior
amendment. Finally, because plaintiff's proposed amended
allegations are sufficient to establish subject matter
jurisdiction in this case, amendment is not futile. The Court
will therefore grant plaintiff leave to file a second amended
complaint. In addition, because the Court is satisfied that
there is federal jurisdiction over this case pursuant to 28
U.S.C. § 1332, the Court's January 23 order to show
cause will be discharged.[2] Wherefore, it is
ORDERED
that Plaintiff Clarendon National Insurance Company's
Motion for Leave to File Second Amended Complaint [Docket No.
19] is GRANTED. It is further
ORDERED that the Order to Show Cause [Docket
No. 17] is hereby discharged.
It is further ORDERED that, within three
days of this order, plaintiff shall file a non-redlined
version of the second amended complaint [Docket No. 19-1].
---------
Notes:
[1]The proposed amended complaint also
clarifies that “Elevation Builders, Inc., dba
Generation Development” and “Elevation Builders,
Inc.” are named as separate defendants in this case.
Docket No. 19 at 2-3, ¶ 4; Docket No. 19-1 at 5, ¶
13.
[2]Because the order to show cause is
discharged, the Court need not determine whether plaintiff is
entitled to limited jurisdictional discovery. See ...