UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANDREA CANNON, on behalf of herself
and all others similarly situated,
Plaintiff,
Civil Action No. 12-465 (CKK)
v.
WELLS FARGO BANK, N.A., et al.,
Defendants.
MEMORANDUM OPINION
(October 25, 2013)
Plaintiff Andrea Cannon filed a putative class action suit against Defendants Wells Fargo
Bank, N.A. and Wells Fargo Insurance, Inc., (collectively the “Wells Fargo Defendants”), as
well as QBE Specialty Insurance Co. and Sterling National Insurance Agency, Inc., now known
as QBE First Insurance Agency, Inc. (“QBE First”), in the Superior Court for the District of
Columbia. The Defendants removed the action to this Court and upon the Defendants’
respective motions to dismiss, dismissed all claims except for portions of the Plaintiff’s breach of
contract claim against the Wells Fargo Defendants. On March 19, 2013, the Plaintiff filed a
Motion for Leave to File an Amended Complaint. On July 1, 2013, the Court issued an Order
granting in part and denying in part the Plaintiff’s Motion. The Order denied the Plaintiff leave
to file an amended complaint to include claims of unjust enrichment, negligence, and fraud, but
granted the Plaintiff leave to file an amended complaint “revising the breach of contract
allegations as set forth in the proposed amended complaint, and including allegations of
fraudulent concealment only to establish the breach of contract claim(s) relating to the
Additional Named Insured Certificate are timely.” Subsequently, the Plaintiff filed a revised
amended complaint, entitled “Third Amended Complaint,” ECF No. [47] on September 19,
2013.
Presently before the Court is Defendant Wells Fargo Bank’s Motion to Strike the Plaintiff’s
Third Amended Complaint, ECF No. [48]. Defendant QBE First Insurance Agency treated the
Plaintiff’s Third Amended Complaint as a Motion for Leave to File a Third Amended Complaint
and filed a Response in Opposition to the Plaintiff’s Motion for Leave to File, ECF No. [50].
The Court considered both documents, along with the Plaintiff’s opposition memoranda and sur-
reply, ECF Nos. [49, 52, 54], in evaluating the Motion to Strike the Plaintiff’s Third Amended
Complaint. Based on the pleadings, the Court GRANTS the Defendants’ Motion to Strike as to
the Plaintiff’s fraudulent concealment counts, but otherwise DENIES the Defendants’ Motion to
Strike.
I. DISCUSSION
A. Breach of Contract Claim
Defendants argue that the Plaintiff’s Third Amended Complaint fails to comply with the
Court’s July 1, 2013, Order because the Plaintiff “added several new allegations of fact and
claims for liability under the breach of contract claim.” The Court’s July 1, 2013, Order granted
the Plaintiff leave to “revis[e] the breach of contract allegations as set forth in the proposed
amended complaint.” Although the Plaintiff added to her Third Amended Complaint several
factual allegations that were not included in her proposed amended complaint, Federal Rule of
Civil Procedure 15 allows a plaintiff to freely amend his or her complaint Fed. R. Civ. P.
15(a)(2). Moreover, the Defendant alleges no prejudice as a result of the inclusion of these
additional allegations. Accordingly, the Court DENIES the Defendants’ Motion to Strike the
Breach of Contract claim.
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B. Fraudulent Concealment Claims
In addition, the Defendants move the Court to strike the Plaintiff’s Third Amended
Complaint because the Plaintiff included three counts of “fraudulent concealment” even though
the Court, in its July 1, 2013, Order, denied the Plaintiff leave to amend her complaint to include
these claims because fraudulent concealment is not an independent cause of action. In its July 1,
2013, Order, the Court stated that the Plaintiff may “include allegations of fraudulent
concealment only to establish the breach of contract claim(s) relating to the Additional Named
Insured Certificate are timely.” (emphasis added). In her opposition to the Defendants’ Motion
to Strike her Third Amended Complaint, the Plaintiff explains that she included the three
fraudulent concealment counts in the Third Amended Complaint only for “Statute of Limitations
concerns” pursuant to the Court’s July 1, 2013, Order. The Plaintiff, however, misunderstands
the Court’s order. To ensure that her breach of contract claim survives the statute of limitations,
the Plaintiff may only and need only include a factual allegation in support of her breach of
contract claim alleging that the Defendants fraudulently concealed information, not an
independent cause of action. Accordingly, because they set forth independent causes of action
for fraudulent concealment that are not cognizable at law, the Court GRANTS the Defendants’
Motion to Strike as to Counts Two, Three, and Four of the Plaintiff’s Third Amended Complaint.
C. Tortious Interference Claim
The Defendants also move the Court to strike the Plaintiff’s Third Amended Complaint on
the basis that it includes a new count against QBE First alleging tortious interference with a
contract. The Defendants argue that the inclusion of this claim violates the Court’s July 1, 2013,
Order which, they contend, limited the Plaintiff’s revised amended complaint to the breach of
contract claim exactly as proposed in her Motion for Leave to File an Amended Complaint and
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to a factual allegation of fraudulent concealment to support the Plaintiff’s breach of contract
claim. In the alternative, the Defendants argue that the Court should strike the Plaintiff’s Third
Amended Complaint because it fails to state a claim of tortious interference.
The Court’s July 1, 2013, Order did not indicate one way or the other whether the Plaintiff
could raise new claims in her revised amended complaint. Moreover, the Defendants’ argument
that the Plaintiff failed to state a claim of tortious interference is more properly addressed
through a Motion to Dismiss as opposed to a Motion to Strike. Accordingly, the Court DENIES
the Defendants’ Motion to Strike the Tortious Interference claim. If the Defendant QBE First
wishes to file a Motion to Dismiss, such a motion may be filed during discovery, and the Court
will set a short briefing schedule.
D. Requests for declaratory judgment, to proceed as a class action, and prayer for
relief
Finally, the Defendants argue that the Plaintiff’s inclusion of “Class Action Allegations,” a
request for declaratory judgment, and a prayer for relief at the end of her Third Amended
Complaint are in violation of the limitations contained in the Court’s July 1, 2013, Order. As
discussed above, however, the Court’s July 1, 2013, Order did not strictly limit the Plaintiff’s
revised amended complaint to include only the breach of contract claim exactly as proposed and
a factual allegation of fraudulent concealment. Moreover, the Defendants did not challenge
these sections in their earlier opposition to the Plaintiff’s Motion for Leave to File an Amended
Complaint, and, accordingly, the Court did not address them in its July 1, 2013, Order. As these
sections of the Third Amended Complaint contain no material changes from the proposed
amended complaint and the Defendant has alleged no prejudice by their inclusion, the Court
DENIES the Defendants’ Motion to Strike the class action allegations, request for declaratory
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judgment, and prayer for relief.
II. CONCLUSION
For the foregoing reasons, the Court DENIES the Defendants’ Motion to Strike the Breach of
Contract and Tortious Interference claims. Defendant QBE First remains free to file a Motion to
Dismiss as to the Plaintiff’s Tortious Interference claim. So as not to delay discovery, Defendant
QBE First shall file its Motion to Dismiss by no later than November 8, 2013; the Plaintiff shall
file a response by no later than November 20, 2013; and the Defendant shall file a reply by no
later than November 27, 2013. In addition, the Court DENIES the Defendants’ Motion to Strike
the “class action allegations,” request for declaratory judgment, and prayer for relief sections of
the Plaintiff’s Third Amended Complaint. The Court GRANTS the Defendants’ Motion to
Strike as to the Plaintiff’s Fraudulent Concealment claims. So as not to delay discovery, the
Plaintiff shall, by no later than November 5, 2013, file an amended complaint removing the three
Counts of fraudulent concealment and including a factual allegation of fraudulent concealment in
support of the breach of contract claim(s) relating to the Additional Named Insured Certificate so
as to ensure that these claims are timely.
/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE
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