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Larry O. Crother, Inc., A California Company, D.B.A. Abc Insulation & Supply Co v. Lexington Insurance Company

March 18, 2011

LARRY O. CROTHER, INC., A CALIFORNIA COMPANY, D.B.A. ABC INSULATION & SUPPLY CO., PLAINTIFF,
v.
LEXINGTON INSURANCE COMPANY, A DELAWARE CORPORATION, AND DOES 1 THROUGH 25, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Through the present action, Plaintiff Larry O. Crother, Inc. d.b.a. ABC Insulation & Supply Co. ("Plaintiff") seeks to recoup certain insurance premiums it paid its comprehensive general liability carrier, Defendant Lexington Insurance Company ("Lexington"). Plaintiff's initial complaint was filed on December 13, 2010 in the Superior Court of the State of California in and for the County of Sacramento. Lexington was served with the Summons and Complaint on December 16, 2010.

Because Lexington was the only named Defendant, and because Lexington claims to be a corporation incorporated under the laws of the State of Delaware with a principal place of business in the State of Massachusetts, Lexington timely removed Plaintiff's action to this Court on January 14, 2011, citing diversity of citizenship pursuant to 28 U.S.C. § 1441. Thereafter, on January 28, 2010, Plaintiff filed a First Amended Complaint purporting to add new, and non-diverse, Defendants; namely, Plaintiff's insurance broker and agent. Plaintiff filed that amended pleading without seeking either a stipulation from Lexington or a court order authorizing it to do so.

On the basis of the purported new parties, which conceivably destroy diversity, Plaintiff filed a Motion to Remand (ECF No. 8) seeking to send the matter back to state court where it originated. Lexington filed both a Motion to Dismiss attacking the purported First Amended Complaint on its merits (ECF No. 10) as well as a Motion to Strike under Federal Rule of Civil Procedure 15(a)(1)*fn1 and 28 U.S.C. § 1447(e) (ECF No. 9).

Rule 15(a)(1) provides as follows:

(a) Amendments Before Trial.

(1) Amending as a Matter of Course. A party may amend its pleadings once as a matter of course within:

(A) 21 days after serving it, or

(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the Court's leave. The court should freely give leave when justice so requires.

It follows that under the express provisions of Rule 15(a), Plaintiff had 21 days after the date it effectuated service on Lexington (December 16, 2010) within which to amend its complaint as a matter of course without obtaining either leave of court or the consent of other parties. That 21-day period expired on January 6, 2011. Plaintiff did not in fact file its First Amended Complaint in this matter until January 28, 2011, more than three weeks after the deadline for doing so as a matter of course expired. It is undisputed that neither leave of court nor the consent of Lexington was obtained before Plaintiff's amended pleading was filed.

It follows that under the unequivocal terms of Rule 15(a) as set forth above Plaintiff's purported First Amended Complaint was untimely filed and should be stricken as such. As Alan Wright notes in his treatise on Federal Practice and Procedure:

"In general, if an amendment that cannot be made as of right is served without obtaining the court's leave or the opposing party's consent, it is without legal effect and any new matter it contains will not be considered unless the amendment is resubmitted for the court's approval."

Alan Wright, 6 Federal Practice & Procedure: Civil 3d, ยง 1484, p. 685 (West 2010)(emphasis added). Because such an amendment is of no legal effect, and since the purpose of a motion to strike under Rule 12(f) generally is to remove impertinent and/or immaterial matter from a party's pleadings, courts within this Circuit have properly stricken amended pleadings not filed in conformance with Rule 15(a)(1). See, e.g., Sutton v. Holz, 2007 WL ...


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