United States District Court, W.D. Washington, Tacoma
CAMERON LUNDQUIST, an individual, and LEEANA LARA, and individual, on behalf of themselves and all others similarly situated, Plaintiffs,
FIRST NATIONAL INSURANCE COMPANY OF AMERICA, a New Hampshire Corporation, LM GENERAL INSURANCE COMPANY, Defendants.
ORDER ON PLAINTIFFS' MOTION FOR LEAVE TO AMEND
COMPLAINT AND ADD ADDITIONAL PARTY
J. BRYAN UNITED STATES DISTRICT JUDGE
matter comes before the Court on the Plaintiffs' Motion
for Leave to Amend Complaint and Add Additional Party. Dkt.
83. The Court has considered the pleadings filed regarding
the motion and the remaining record.
putative class action, the Plaintiffs assert that
Defendants' practice of using unexplained and unjustified
condition adjustments to comparable vehicles when valuing a
total loss claim for a vehicle, violates the Washington
Administrative Code (“WAC”), specifically WAC
284-30-391 (4)(b) and (5)(d), and so constitutes: (1) breach
of contract, (2) breach of the implied covenant of good faith
and fair dealing, and (3) violation of Washington's
Consumer Protection Act, RCW 19.86., et seq.
(“CPA”). Dkt. 1. First National Insurance Company
of America's (“First National”) motion to
dismiss for failure to state a claim under Fed.R.Civ.P. 12
(b)(6) was denied on July 9, 2018. Dkt. 33.
some discovery, Plaintiff Lundquist timely moved for, and was
granted, leave to amend the complaint to add Plaintiff Leena
Lara and Defendant LM General Insurance Company, (“LM
General”). Dkt. 52. Further discovery occurred. On
December 5, 2018, the parties, including the newly added
parties, stipulated to an extension of the case schedule,
which was granted. Dkt. 57.
March 2, 2019, the Plaintiffs' motion for leave to add an
additional party, CCC Information Services
(“CCC”), and motion for a six-month extension of
all case deadlines was granted. Dkt. 82. The Plaintiffs were
given until April 12, 2019 to file a proposed amended
April 4, 2019, the Plaintiffs filed the instant motion to
amend the complaint to: (1) add CCC as a Defendant, (2) make
a claim for violation of the CPA against CCC, and (3) add a
Washington state civil conspiracy claim against CCC and the
remaining Defendants. Dkt. 83. The Plaintiffs attached a
red-lined version of the proposed amended complaint to their
motion. Dkt. 83-1.
Defendants do not oppose the addition of CCC as a Defendant
or the assertion of the CPA claim against CCC. Dkt. 85. They
raise concerns over potential extension of the case schedule.
Id. They further oppose the addition of the civil
conspiracy claim against them, asserting that they are
prejudiced by its late addition and that it is futile.
Id. The Plaintiffs replied (Dkt. 87) and the motion
is ripe for decision.
Fed.R.Civ.P. 15 (a)(2), “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.” A motion to amend under Rule 15
(a)(2), “generally shall be denied only upon showing of
bad faith, undue delay, futility, or undue prejudice to the
opposing party.” Chudacoff v. University Medical
Center of Southern Nevada, 649 F.3d 1143 (9th Cir.
Plaintiffs' Motion for Leave to Amend Complaint and Add
Additional Party (Dkt. 83) should be granted. There is no
showing here of bad faith, undue delay, futility, or undue
prejudice as to the addition of CCC as a defendant or the
addition of the CPA claim against CCC. Although the
Defendants express concern about a delay in the case
schedule, there is no motion for an extension of the case
schedule pending, so that issue is not before the Court.
the addition of the conspiracy claim against all Defendants,
the Defendants argue that they would be unduly prejudiced by
addition of the claim and that amendment is futile. These
arguments are unavailing. The prejudice to the Defendants is
not significant. The discovery cut off is over seven months
away - it is not until November 20, 2019. Further, it is not
clear that the addition of the civil conspiracy claim is
futile. To establish a claim for civil conspiracy under
Washington law, a plaintiff “must prove by clear,
cogent, and convincing evidence that (1) two or more people
combined to accomplish an unlawful purpose, or combined to
accomplish a lawful purpose by unlawful means; and (2) the
conspirators entered into an agreement to accomplish the
conspiracy.” All Star Gas, Inc., of Washington v.
Bechard, 100 Wn.App. 732, 740 (2000)(citing Corbit
v. J.I. Case Co., 70 Wash.2d 522, 528 (1967)). “A
finding that a conspiracy exists may be based on
circumstantial evidence, although the circumstances must be
inconsistent with a lawful or honest purpose and reasonably
consistent only with [the] existence of the
conspiracy.” Herrington v. David D. Hawthorne, CPA,
P.S., 111 Wn.App. 824, 840, 47 P.3d 567, 575
(2002)(internal quotation marks and citations
omitted). “Mere suspicion is not a sufficient
ground upon which to base a finding of conspiracy.”
Corbit, at 529. While the claim appears difficult to
establish given this standard, the undersigned cannot say
that it is futile to allow addition of the civil conspiracy
claim at this time. The Plaintiffs' proposed amended
complaint asserts that the Defendants entered into
“agreements to accomplish unlawful purposes, to wit,
the breach of the insurance contracts (including the
provisions of Washington law that dictate the method by which
total loss claims are valued) and Washington's
prohibitions of unfair and deceptive claims handling
practices.” Dkt. 83-1, at 19. While the Plaintiffs
could have pled the claim with more clarity, it is
sufficient, and amendment is not futile.
Plaintiffs should file a clean version of their amended