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Anderson v. USAA Casualty Insurance Co.

September 29, 2003

CAROL A. ANDERSON, PLAINTIFF,
v.
USAA CASUALTY INSURANCE COMPANY ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos. 4, 5, 28, 32

MEMORANDUM OPINION

GRANTING THE PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE COMPLAINT; DENYING WITHOUTPREJUDICE THE PENDING MOTIONS TO DISMISS; AND GRANTING DEFENDANT NUCHEMCO'SCONSENTMOTION TO WITHDRAW ITS ANSWER

I. INTRODUCTION

The plaintiff brings this action against several business entities, including Millennium Partners LLC, Millennium Partners Management LLC, Millennium Manager I, Inc., and Millennium Partners Washington Properties Management LLC (collectively, "the non-contracting Millennium defendants"), as well as 2200 M Street LLC ("2200 M Street" or "the contracting Millennium defendant"), USAA Casualty Insurance Company ("USAA"), NuChemCo, Inc. ("NuChemCo"), and The Environmental Group, Inc. ("TEG") (collectively, "the defendants"). This matter is currently before the court on the plaintiff's unopposed motion for leave to file an amended complaint pursuant to Federal Rule of Civil Procedure 15(a), the non-contracting Millennium defendants' motion to dismiss under Rules 9(b) and 12(b)(6), defendant 2200 M Street's motion to dismiss pursuant to Rule 12(b)(1), and defendant NuChemCo's motion to withdraw its prematurely filed answer to the plaintiff's proposed amended complaint. First, the court grants the plaintiff's unopposed motion to amend because the plaintiff's proposed amendment is as of right in some respects and, in other respects, the court can see no sufficient reason for not allowing the amendment. Second, the court denies without prejudice the pending motions to dismiss because they pertain to the original complaint, now superseded by the amended complaint. Finally, the court grants defendant NuChemCo's consent motion to withdraw its answer to the plaintiff's amended complaint as prematurely filed.

II. BACKGROUND

A. Factual Background

The plaintiff asserts a host of claims against the defendants, including contract, tort, and statutory claims. Specifically, the plaintiff advances claims against the non-contracting and contracting Millennium defendants for breach of contract; breach of express, implied, and statutory warranties; actual and constructive fraud; negligence and negligence per se; violations of the D.C. Consumer Protection Act; negligent misrepresentation; intentional and negligent infliction of emotional distress; and strict liability. Compl. ¶¶ 88-133, 144-79. The plaintiff seeks compensatory relief for personal injuries and monetary damages resulting from a "Residential Purchase Agreement" ("the contract") with defendant 2200 M Street for the purchase of two condominium units in "The Residences at the Ritz-Carlton" ("Ritz-Carlton Residences"), a condominium project "located in the North West End neighborhood" of the District of Columbia. Id. ¶¶ 8, 20-47.

After purchasing condominium units 7-F and 7-G, the plaintiff combined them into a single unit ("the condominium" or "the unit"), which is the subject of this action. Id. ¶ 15; Def. 2200 M Street's Mot. to Dismiss at 1-2. The plaintiff, who is a permanent resident of Florida, purchased the condominium for use as an alternate residence. Compl. ¶ 22. Defendant 2200 M Street and the non-contracting Millennium defendants are a group of related and jointly-controlled companies that are the developers of the Ritz-Carlton Residences. Id. ¶ 8.

Shortly after taking possession in November 2000, and occupying the condominium in January 2001, the plaintiff allegedly began experiencing "a variety of flu-related symptoms, such as nasal congestion, burning eyes and fatigue." Id. ¶¶ 18, 22. The plaintiff maintains that she had no known history of such health problems prior to occupying the condominium and that her symptoms would subside when she was away from the condominium. Id. ¶ 22. As time progressed, the plaintiff experienced further health problems, including "severe headaches, shortness of breath, congestion, fatigue, short-term memory loss and disorientation." Id. ¶ 40. The plaintiff attributes her health problems to a variety of toxic molds that allegedly began to grow within the walls of the building as a result of "serious and reoccurring leaks and flooding" which began during the construction of the condominium. Id. ¶¶ 54-55.

The plaintiff alleges that, despite the contracting and non-contracting Millennium defendants' longstanding knowledge of the extensive mold contamination, she was not informed of the contamination until August 2002. Id. ¶¶ 43, 55-63. Consequently, the plaintiff alleges that she was exposed to severe mold contamination on multiple occasions for more than a year. Id. In addition, the plaintiff claims that, as a result of the contamination, she has incurred past and future medical expenses, physical pain, and mental suffering. Id. ¶¶ 65-67. Finally, the plaintiff seeks damages and compensation for other various expenses related to the alleged defective design and construction of the condominium. Id. ¶¶ 65, 67.

B. Procedural History

The plaintiff filed the complaint on November 14, 2002. Defendants USAA, NuChemCo, and TEG each filed an answer to the plaintiff's complaint. On December 11, 2002, defendant 2200 M Street filed its Rule 12(b)(1) motion to dismiss or, in the alternative, to stay these proceedings pending arbitration. On that same day, the non-contracting Millennium defendants filed their motion to dismiss pursuant to Rules 9(b) and 12(b)(6).

Subsequently, the plaintiff filed a motion for leave to file an amended complaint on June 6, 2003. On August 11, 2003, defendant NuChemCo prematurely filed its answer to the plaintiff's proposed amended complaint. On September 24, 2003, defendant NuChemCo filed a consent motion to withdraw its answer to the ...


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