United States District Court, M.D. Pennsylvania
RODGER T. ATWOOD, II, Plaintiff,
STATE FARM FIRE AND CASUALTY CO., Defendant.
SYLVIA H. RAMBO, District Judge.
This civil action involves a breach of contract claim in connection to a homeowner's insurance policy, arising from a fire that occurred at Plaintiff's residence on or about March 31, 2012. Presently before the court are two motions: Plaintiff's motion to amend his complaint (Doc. 35) and Plaintiff's renewed motion for appointment of counsel (Doc. 36). For the reasons that follow, the motion to amend the complaint will be granted and the motion for appointment of counsel will be denied.
As both parties are intimately familiar with the facts of this case, the court will include only the background information relevant to decide the current motions.
On or about May 2, 2011, Plaintiff, Rodger T. Atwood II ("Plaintiff"), purchased a homeowner's insurance policy from Defendant, State Farm Fire and Casualty Company ("State Farm" or "Defendant"), covering Plaintiff's residence and personal property located at 740 Pine Hill Road, Duncannon, Pennsylvania, within the Middle District of Pennsylvania. (Doc. 1, Ex. 2 ("Compl."), ¶ 6.) On February 7, 2012, federal authorities, headed by the Drug Enforcement Agency in Harrisburg, Pennsylvania, entered Plaintiff's home by knocking down the front door, rendering the property unsecured. ( Id. at ¶ 10.) For a period of time thereafter, Plaintiff left the area in an attempt to avoid arrest by federal authorities. ( Id. at ¶ 13.) While Plaintiff was "on the lam, " he was informed by his brothers that there had been thefts from the house and garage on a nearly daily basis. ( Id. at ¶ 14.) Further, a fire occurred at the residence on or about March 31, 2012. ( Id. at ¶ 15.) By letter dated April 3, 2012, Plaintiff gave written notice of the fire and thefts to Defendant along with an inventory of the personal property stolen or destroyed by the fire. ( Id. at ¶ 18.) After receipt of Plaintiff's written notice, Defendant undertook an investigation of Plaintiff's claim. ( Id. at ¶ 19.) To that end, Plaintiff spoke with Greg Lunde, an authorized agent of Defendant, and Ted Marzani, a claim representative and Special Investigations Unit investigator. ( Id. at ¶ 20.)
On May 10, 2012, Plaintiff, his wife, and his parents were arrested in Florissant, Colorado. ( Id. at ¶ 21.) Criminal proceedings were filed against Defendant in the Middle District of Pennsylvania, which included a forfeiture proceeding against Plaintiff's residence. ( Id. at ¶ 34.)
Plaintiff has submitted claims to State Farm for his losses in the amount of $278, 000.00 for his dwelling, "plus an additional amount of $55, 600.00 under Option ID;" $219, 134.00 for personal property; and approximately $48, 000.00 for loss of use. ( Id. at ¶ 47.) Defendant has provided a detailed listing of his personal property to Defendant. ( Id. )
Nearly thirty months have passed since the date of the loss. To date, Defendant has not denied Plaintiff's claim, but has made only partial payment. (Doc. 35-1, ¶ 36.) On September 4, 2013, Defendant issued a check to the mortgage lien holder, Edward Jones, in the amount of $180, 970.82, representing the remaining mortgage balance on the property plus interest. ( Id. ) In addition, Defendant has paid Plaintiff $128, 824.05 for loss of personal property. (Doc. 43, ¶ 5.) Defendant has not made any payment toward Plaintiff's loss of use claim. ( Id. )
B. Procedural History
Plaintiff initiated this action by filing a complaint in the Court of Common Pleas of Cumberland County on March 4, 2013 for breach of contract and bad faith (Doc. 1, Ex. 2), which was removed to federal court by Defendant on April 17, 2013 (Doc. 1). On April 24, 2013, Defendant filed a motion to dismiss Plaintiff's complaint (Doc. 2), followed by a brief in support on May 3, 2013 (Doc. 5). On May 8, 2013, Plaintiff filed a response in opposition. (Doc. 8.) On May 15, 2013, Plaintiff filed an additional response to Defendant's motion to dismiss, wherein he requested leave to file an amended complaint. (Doc. 10.) The court granted Plaintiff's request and directed him to file an amended complaint by May 29, 2013. (Doc. 11.) Plaintiff failed to file an amended complaint by May 29, 2013, and, on June 3, 2013, the court issued a rule to show cause why an amended complaint had not been filed. (Doc. 12.) On June 10, 2013, Plaintiff filed a letter to the Clerk or Court (Doc. 13) claiming that his May 15, 2013 response (Doc. 10) effectively amended his complaint. The court disagreed, noting that, if Plaintiff wished to alter his complaint, he was required to file an amended complaint, separate and apart from any complaint or document previously filed, and granted him an additional ten days to file an amended complaint. (Doc. 14.) On June 17, 2013, Plaintiff filed an amended complaint (Doc. 15), which the court accepted for filing (Doc. 16). In response, Defendant filed an amended motion to dismiss (Doc. 17) and brief in support (Doc. 19). On July 29, 2013, Plaintiff filed a brief in opposition. (Doc. 20.) By memorandum and order, the court granted Defendant's motion to dismiss and dismissed without prejudice Plaintiff's bad faith claim at Count II, primarily because the insurance coverage was not yet denied, noting that Defendant had a reasonable basis to delay its final coverage decision in light of the pending criminal charges. (Doc. 21.) The court invited Plaintiff to amend his complaint upon the issuance of a final coverage decision from Defendant regarding Plaintiff's claim. ( Id .) The court also denied Plaintiff's demand for attorney's fees, noting that Plaintiff was proceeding pro se , but added that if an attorney entered his or her appearance, the court would consider a motion by Plaintiff to amend his complaint to add a request for attorney's fees. ( Id .)
On September 10, 2013, Defendant filed an answer to Plaintiff's amended complaint (Doc. 22), to which Plaintiff filed a response on September 19, 2013 (Doc. 23). A case management order was entered on March 14, 2014. (Doc. 29.) On June 27, 2014, Plaintiff filed a motion to extend the time to file any motion to amend (Docs. 30 & 31), and Defendant filed a response on July 7, 2014 (Doc. 32). The court granted Plaintiff's motion, thereby extending the joinder and amendments deadline until July 31, 2014. (Doc. 33.) On July 30, 2014, Plaintiff filed the instant motion for leave to amend the complaint and renewed his motion to appoint counsel. (Docs. 35 & 36.) Defendant filed a response to Plaintiff's renewed motion for appointment of counsel on August 8, 2014. (Doc. 37.) Plaintiff replied on August 21, 2014. (Doc. 38.) On August 25, 2014, Defendant filed a response to Plaintiff's motion to amend the complaint (Doc. 40), and Plaintiff replied on September 11, 2014 (Doc. 43). Thus, both motions have been fully briefed and are ripe for consideration.
II. Motion to Amend the ...