In a series of recent sua sponte decisions in six Superstorm Sandy cases, Judges Seybert and Feuerstein dismissed extra contractual claims and dismissed all but the first named plaintiffs’ claims pursuant to Fed. R. Civ. P. 20. The cases involve up to two hundred and seventeen named plaintiffs (perhaps in an attempt to avoid separate filing fees) and allege various insurance coverage claims as a result of Superstorm Sandy.
In Esposito, et al. v. Ocean Harbor Cas. Ins. Co., 2013 U.S. Dist. LEXIS 179262 (EDNY Dec. 19, 2013) (Feurstein, J.) and Funk v. Allstate Ins. Co., 2013 U.S. Dist. LEXIS (EDNY Dec. 13, 2013), Judges Feurerstein and Seybert sua sponte dismissed (1) claims based on alleged breach of the covenant of good faith and fair dealing as redundant of the breach of contract claims, (2) New York General Business Law Section 349 claims as insufficient based on the fact that the plaintiffs failed to allege any specific conduct that was deceptive or any damages suffered independent of the breach of contract claims, and (3) fraudulent misrepresentation claims (in Funk) as insufficient because plaintiffs failed to allege a duty separate from a duty to perform under the insurance policies.
In addition, Judges Seybert and Feurstein dismissed all plaintiffs’ claims except the first named plaintiffs’ claims (without prejudice) in Esposito and Funk as well as in Roth, et al. v. Hartford Fire Ins. Co., 2013 U.S. Dist. LEXIS 177789 (EDNY Dec. 13, 2013), Kelly, et al. v. Harleysville Worcester Ins. Co., 2013 U.S. Dist. LEXIS 177783 (EDNY Dec. 13, 2013), Murray, et al. v. The Standard Fire Ins. Co., 2013 U.S. Dist. LEXIS 177013 (EDNY Dec. 13, 2013), and Falcone, et al. v. Underwriters at Lloyd’s London, et al., 2013 U.S. Dist. LEXIS (EDNY Dec. 17, 2013) based on improper joinder pursuant to Fed. R. Civ. P. 20(a)(1). The court specifically noted that the plaintiffs’ claims did not arise out of the same transaction or occurrence, stating that “despite the fact that a single natural disaster, Superstorm Sandy, caused the damage to Plaintiff’s properties . . . [t]he claims involve entirely different factual and legal issues, including each property’s respective condition and location before the storm, the value of the properties, and extent of damage sustained.”
These sua sponte decisions send a strong message to the plaintiffs’ bar with respect to Superstorm Sandy extra-contractual claims, and suggest that a class action would also fail for lack of commonality.