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Whitney v. Nature's Way Pest Control, Inc.

United States District Court, D. Vermont

July 6, 2016

NEIL WHITNEY, Personally and as Parent and as Guardian for Caleb Whitney, and PATRICIA WHITNEY, Personally and as Parent and as Guardian for Caleb Whitney, Plaintiffs,
v.
NATURE'S WAY PEST CONTROL, INC., Defendant.

          OPINION AND ORDER (DOCS. 8, 11)

          Geoffrey W. Crawford Judge United States District Court

         Plaintiffs are homeowners in Rutland, Vermont. Defendant is an extermination company. Plaintiffs have filed suit following prolonged efforts by Defendant to rid their home of bedbugs. Pending before the court is Defendant's Motion to Dismiss Count III of Plaintiffs' Complaint (Doc. 8), which alleges violations of the Vermont Consumer Protection Act ("VCPA"), 9 V.S.A. § 2451 et seq[1]The motion seeks dismissal for lack of standing and lack of sufficient specificity in pleading. Plaintiffs have filed a Motion to Amend the Complaint (Doc. 11.)

         I. Motion to Amend the Complaint

         After Defendant moved to dismiss the complaint, Plaintiffs moved to amend. The proposed amendments respond to the contention that Plaintiffs failed to plead with the requisite degree of specificity.

         Federal Rule of Civil Procedure 15(a)(2), provides that "[t]he court should freely give leave [to amend] when justice so requires." "The Second Circuit has held that a motion to amend should be denied 'only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party.'" Balentine v. Tremblay, No. 5:ll-cv-196, 2012 WL 1999859, at *3 (D. Vt. June 4, 2012) (quoting Richardson Greenshields Sec, Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987)). Here, the motion to amend does not implicate any of these concerns. The amendments are not unduly prejudicial, as litigation is in its very early stages and the amendments are based on the same facts and claims as the original complaint. There is also no indication of bad faith or undue delay. As discussed below, the proposed amended complaint is also sufficient to withstand a 12(b)(6) motion to dismiss for failure to state a claim, and is therefore not ftitile. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).

         The court therefore grants Plaintiffs' Motion to Amend Complaint (Doc. 11). For purposes of considering Defendant's Motion to Dismiss (Doc. 8), all allegations of the amended complaint are accepted as true.

         II. Facts

         Plaintiffs own their own home in Rutland, Vermont. They live with their disabled son who is a young adult. They also accept the placement of foster children in their home. These placements occur with the support and supervision of the Vermont Department for Children and Famihes ("DCF").

         In April 2012, Plaintiffs began to experience problems with bedbugs in their home. The insects were introduced into the home by a foster child. DCF initially rejected Plaintiffs' request for payment of a professional exterminator. The problems persisted and Plaintiff Patricia MTiitney wrote to DCF in June 2012 requesting that the agency hire an exterminator. DCF responded by authorizing Plaintiffs to obtain two estimates for submission to DCF.

         Mrs. Whitney called Defendant Nature's Way Pest Control, Inc. ("Nature's Way"), an extermination company based in Glens Falls, New York. Defendant's sales representative visited the Plaintiffs' home. He stated that the company was experienced in dealing effectively with bedbugs and that the insects would be eradicated in the first thirty days of treatment. He also stated that the company would conduct follow-up visits to ensure that the bedbugs did not return. Mrs. Whitney obtained a written estimate for $2, 700 for a one-year program and submitted it to DCF. DCF accepted the estimate and entered into an agi'eement with Defendant to eradicate the infestation.

         Between July 2012 and April 2013, Defendant tried repeatedly to eradicate the bedbugs from Plaintiffs' home without success. A subsequent investigation by the Vermont Agency of Agriculture revealed that Defendant had committed multiple violations of the Vermont Pesticide Regulations, including providing Plaintiffs with inaccurate invoices.

         III. Analysis

         A. Standing

         Defendant's motion presents a single primary issue: does payment for the extermination service by DCF bar Plaintiffs from ...


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