United States District Court, D. Minnesota
Katherine Menendez United States Magistrate Judge
James Borden has filed a motion to amend his complaint. (ECF
No. 27.) Defendants American Bankers Insurance Company of
Florida (“ABI”) opposes the motion, arguing that
for several reasons the amendment would be futile. Having
reviewed the matter carefully, the Court finds that Mr.
Borden's motion should be DENIED.
Factual and Procedural Background
case arises out of an insurance dispute. Mr. Borden owns a
cabin near a lake in central Minnesota. (Proposed Complaint
¶ 7.) Beginning in 2014, the crawlspace beneath the
cabin began to flood on a somewhat regular basis, and Mr.
Borden submitted several claims to insurance, including Proof
of Loss documents, which were paid and are not at issue here.
(See Id. at ¶¶ 11-33.) The last claim paid
by ABI was made in January 2018. (Id. at ¶ 25.)
By 2018, the flooding had become so consistent and the damage
so extensive that Mr. Borden was unable to use the cabin.
(Id. at ¶ 33.) In April 2018, Mr. Borden
submitted a claim to ABI, but does not allege that he filed a
Proof of Loss with the April claim. (Id.) He
reported an additional claim in June 2018, which ABI
consolidated with the April 2018 claim. (Id. at 26.)
Again, there is no allegation that this claim was accompanied
by the required Proof of Loss.
Borden originally filed a conciliation court action in June
2018, but voluntarily withdrew the claim in mid-July after a
phone call with ABI's counsel. (Id. at 28-29.)
However, after receiving no payment for the April or June
2018 claims, Mr. Borden once again filed an action in
conciliation court in September 2018.
removed this action to Federal Court. (ECF No. 1.) The Court
identified Mr. Borden's case as a good candidate for its
Pro Se Referral Project, and volunteer attorneys entered an
appearance on December 18, 2018. (ECF Nos. 17-19.) While the
Court's referral was pending, however, ABI filed a motion
for summary judgment. (ECF No. 8.) That motion is still
pending. Due to the delay in finding a volunteer attorney for
Mr. Borden, the Court granted an extension to Mr. Borden to
respond to the motion for summary judgment. (ECF No. 20.)
However, instead of responding to that motion, Mr. Borden
moved to amend his complaint. (ECF No. 27.) ABI opposes the
Rule of Civil Procedure 15(a)(2) provides that “a party
may amend its pleadings with the opposing party's written
consent or the court's leave. The court should freely
give leave when justice so requires.” The Supreme Court
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits. In
the absence of such an apparent or declared reason - such as
undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, futility of the
amendment, etc. - the leave sought should, as the rules
require, be “freely given.”
Foman v. Davis, 371 U.S. 178, 182 (1962). The Eighth
Circuit holds that while the parties “do not have an
absolute right to amend their pleadings, even under this
liberal standard” Sherman v, Winco Fireworks,
Inc., 532F.3d 709, 715 (8th Cir. 2008), the court
approaches its review “with a presumption of
liberality.” DeRoche v. All American Bottling
Corp., 38 F.Supp.2d 1102, 1106 (D. Minn. 1998). One
limitation on amendments is futility. When the proposed
complaint would not survive a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), the amendment is futile,
and a court should deny it. Crowell Trust v. Possis
Medical Inc., 519 F.3d 778, 782 (8th Cir. 2008).
argues that Mr. Borden's motion to amend should be denied
because his amendment is futile. Specifically, it argues that
Mr. Borden's proposed complaint fails to plead the
fulfillment of certain requirements under the Standard Flood
Insurance Policy (SFIP), and that his proposed negligent
misrepresentation claim is not cognizable under the SFIP. The
Court agrees that Mr. Borden's proposed amended claims
are futile for multiple reasons.
Proof of Loss Requirement
argues that Mr. Borden's claim fails as a matter of law
because he did not submit a Proof of Loss as required by the
SFIP. The Court agrees. The SFIP provides that payment for a
loss from flood will only be made if the policyholder has
complied with all terms and conditions of the policy. 44
C.F.R. pt. 61, app.A(1), art. I. Article VII(J) of the SFIP
lists the requirements that a policyholder must fulfill in
case of a loss. Paragraph 4 of this list requires that
“[w]ithin 60 days after the loss, [policyholder must]
send us a proof of loss, which is your statement of the
amount you are claiming under the policy signed and sworn by
you….” 44 C.F.R. pt. 61, app.A(1), art.
well-settled that “[s]trict compliance with the proof
of loss provision is mandatory.” McCarty v.
Southern Farm Bureau Cas. Ins. Co., 758 F.3d 969, 972-73
(8th Cir. 2014) (citing Dickson v. Am. Bankers Ins. Co.
of Fla., 739 F.3d 397, 399 (8th Cir. 2014).
Policyholders cannot recover money in a lawsuit under the
SFIP unless they have fulfilled all requirements of the
policy, including the proof of loss requirement. Id.
As such, the proof of loss requirement ...