                             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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