United States District Court, M.D. Georgia, Macon Division
ALICIA MADDOX and CHAD G. MADDOX, Plaintiffs,
STATE FARM FIRE AND CASUALTY COMPANY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION TO
E. SELF, III, JUDGE UNITED STATES DISTRICT COURT.
the Court is Defendant State Farm Fire and Casualty
Company's (“State Farm”) Motion to Strike
Plaintiff's Amended Complaint [Doc. 12]. For the reasons
explained below, the Court GRANTS
Defendant's motion [Doc. 12] and STRIKES
Plaintiff's Amended Complaint [Doc. 10].
Alicia and Chad Maddox originally filed this action in the
Superior Court of Upson County, Georgia. [Doc. 1-2, at p. 1].
On September 20, 2018, Defendant filed a timely Notice of
Removal based on diversity jurisdiction. [Doc. 1-1]. On
November 12, 2018, Plaintiffs attempted to amend their
Complaint by serving an Amended Complaint on Defendant via
first-class mail with claims for breach of contract, bad
faith, and stubborn litigiousness. [Doc. 12, at p. 2].
Plaintiffs then filed a Notice of Amended Complaint [Doc. 10]
with the Court on November 20, 2018, but never sought the
Court's leave to do so. Defendant now asks the Court to
strike the Amended Complaint because the amendment was not
made consistent with the requirements of Federal Rule of
Civil Procedure 15. [Doc. 12, at pp. 3-4]. Defendant further
argues that even if Plaintiff had complied with the
requirements of Rule 15, leave to amend should be denied
because the new claims asserted in the Amended Complaint
would not survive a Rule 12(b)(6) motion to dismiss and
amendment is therefore futile. Plaintiffs failed to file any
response to the instant motion.
Court agrees with Defendant that Plaintiffs failed to comply
with the requirements of Rule 15; therefore, the Court grants
Defendant's Motion to Strike. Under Rule 15, A party may
amend its pleading 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.
Fed. R. Civ. P. 15(a)(1). If the time for amendment as a
matter of course has expired, “a party may amend its
pleading only with the opposing party's written consent
or the court's leave.” Fed.R.Civ.P. 15(a)(2).
Assuming without deciding that the 21-day period for
amendment as a matter of right began to run on the date
Defendant filed its notice of removal, Plaintiff had until
October 11, 2018, to file an amendment as a matter of right
under Rule 15(a)(1). However, as noted above, Plaintiffs did
not file their Amended Complaint with the Court until
November 20, 2018-well after the deadline for amending their
Complaint as a matter of right. Accordingly, Plaintiffs'
Complaint was not properly amended pursuant to Rule 15(a)(1).
Nor was Plaintiffs' Complaint properly amended under Rule
15(a)(2). Plaintiffs neither sought nor did the Court grant
leave to amend their Complaint and Defendant likewise denies
giving Plaintiffs consent to amend their Complaint.
See [Doc. 12, at p. 4].
in light of Rule 15(a)(2)'s direction that the Court
“should freely give leave” to amend, the Court
need not strike Plaintiffs' Amended Complaint if
“leave to amend would have been granted had it been
sought and when it does not appear that any of the
parties will be prejudiced by allowing the change.”
Hoover v. Blue Cross & Blue Shield of Ala., 855
F.2d 1538, 1544 (11th Cir. 1988). In this case, however, the
Court would not have allowed Plaintiffs to amend their
Complaint because the claims they added would not have
survived a motion to dismiss; therefore, amendment would have
been futile. See Campbell v. Emory Clinic, 166 F.3d
1157, 1162 (11th Cir. 1999) (“Rule 15(a) gives a
district court ‘extensive discretion' to decide
whether or not to allow a party to amend a complaint. This
liberal discretion is not abused when the amendment would
prejudice the defendant, follows undue delays, or is
futile.”) (internal citations omitted). An amendment is
futile if the amendments fail to state a claim. Mizzaro
v. Home Depot, Inc., 544 F.3d 1230, 1255 (11th Cir.
2008) (“Because justice does not require district
courts to waste their time on hopeless cases, leave may be
denied if a proposed amendment fails to correct the
deficiencies in the original complaint or otherwise fails to
state a claim.”). Accordingly, the question is whether
Plaintiffs' additional claims could survive a Rule
12(b)(6) motion. The Court finds that they could not.
bad faith claim is deficient because, to pursue a claim for
bad faith, Plaintiffs must first provide notice to Defendant
that it is facing a bad faith claim. BayRock Mortg. Co.
v. Chic. Title Ins. Co., 648 S.E.2d 433, 435 (Ga.Ct.App.
2007) (“[Plaintiff]'s demand would have been
insufficient because, on its face, it served only to give
[Defendant] notice of its claim based on a disputed title. A
demand made under [Ga. Code Ann.] § 33-4-6 must give the
insurer notice that it is facing a bad faith claim.”).
Because Plaintiffs' bad faith claim could only proceed if
they had given Defendant notice of the potential bad faith
claim, Plaintiffs must have alleged in their Amended
Complaint that that they gave such notice. However, nowhere
in Plaintiffs' Amended Complaint do they make such an
allegation. See generally [Doc. 10]. Instead,
Plaintiffs simply allege that “they made a timely
written demand to Defendant for the outstanding damages to
their residence.” [Id. at ¶ 8].
even if Plaintiffs' had alleged that they satisfied the
notice requirement for a bad faith claim, such allegations
would have been refuted by the substance of the demand letter
itself. The letter made no reference to a
potential bad faith claim or Georgia's bad faith statute
nor did it threaten litigation. See [Doc. 12-1, at
p. 2]; Arrow Exterminators, Inc. v. Zurich Am. Ins.
Co., 136 F.Supp.2d 1340, 1357 (N.D.Ga. 2001) (holding
that demand letter did not satisfy notice requirement for bad
faith claim where letter did not reference bad faith,
Georgia's bad faith stature, or threaten litigation). For
these reasons, the Court finds that granting Plaintiffs leave
to amend their Complaint to add a bad faith claim would have
the Court finds that an amendment to Plaintiffs'
Complaint to add a claim under Ga. Code Ann. § 13-6-11
would have been futile. Georgia Code Annotated § 13-6-11
authorizes an award of litigation expenses if a party in the
dispute has been stubbornly litigious. However, the Georgia
Supreme Court held in McCall v. Allstate Insurance
Co. that the exclusive remedy for recovering litigation
expenses in insurance cases is Ga. Code Ann. § 33-4-6.
310 S.E.2d 513, 515-16 (Ga. 1984); see also Howell v. S.
Heritage Ins. Co., 448 S.E.2d 275, 276 (Ga.Ct.App. 1994)
(“Howell's claim for attorney fees and expenses of
litigation under [Ga. Code Ann.] § 13-6-11 is not
authorized. The penalties contained in [Ga. Code Ann.] §
33-4-6 are the exclusive remedies for an insurer's bad
faith refusal to pay insurance proceeds.”). ...