United States District Court, D. Vermont
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,
NATURE'S WAY PEST CONTROL, INC., Defendant.
OPINION AND ORDER (DOCS. 8, 11)
Geoffrey W. Crawford Judge United States District Court
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
seqThe motion seeks dismissal for lack of
standing and lack of sufficient specificity in pleading.
Plaintiffs have filed a Motion to Amend the Complaint (Doc.
Motion to Amend the Complaint
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
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).
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.
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").
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.
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.
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.
motion presents a single primary issue: does payment for the
extermination service by DCF bar Plaintiffs from ...