Citibank, N.A. v. Qassem M. Alomari (2014)

MEMORANDUM OF DECISION ON MOTION TO STRIKE

On September 24, 2012, the plaintiff, Citibank, N.A., filed this two-count complaint against the defendant, Qassem M. Alomari, seeking to collect on a credit card debt owed by the defendant, alleging the following facts.   The defendant established a credit card account with the plaintiff, failed to make timely payments as required by the credit account agreement entered between the parties, and as a result, became indebted to the plaintiff in the amount of $8,318.08.

The defendant filed an answer to the complaint on September 25, 2012, and eight months later, on May 31, 2013, filed a three-count counterclaim.   On August 26, 2013, the plaintiff filed a motion to strike the defendant's counterclaim in its entirety on the grounds that, pursuant to Practice Book § 10–60, it was improperly filed without leave of the court.

-I-

The plaintiff seeks to strike the defendant's counterclaim in its entirety on the ground that, pursuant to Practice Book §§ 10–10 and 10–60, the defendant is required to first seek leave of the court to amend his answer.   The plaintiff argues that the defendant's reliance on General Statutes § 52–584 is misplaced because this provision relates only to statute of limitation issues.   In the alternative, the plaintiff contends that counts one and three of the defendant's counterclaim should be stricken because the defendant does not allege any facts to support a claim that the defendant did not have the ability to pay the credit card when he applied for it.   The plaintiff further argues that, because 15 U.S.C. § 1665e did not become effective until February 2010, the defendant's counterclaim is legally insufficient because it does not make any allegations that the plaintiff failed to comply with its provisions after the law became effective.

Defendant counters that Practice Book § 10–60 simply provides a limitation on amendments to existing pleadings but does not provide a limitation to filing any additional pleadings.   The defendant argues that, because General Statutes § 52–584 allows for a counterclaim to be filed at any time before the pleadings in the action are closed, he did not need permission from the court to file his counterclaim.   The defendant further argues that the plaintiff's summary conclusion that he did not “allege any valid claim for a violation of 15 U.S.C. § 1665e” is insufficient to prevail on a motion to strike because this conclusion does not provide support for the plaintiff's claim that the defendant cannot bring a cause of action under 15 U.S.C. § 1665e.   Alternatively, in his objection, the defendant also seeks leave, pursuant to Practice Book § 10–58, to bring the counterclaim that is the subject of this current motion.

The plaintiff also seeks to amend the current motion to strike to include all three counts of the defendant's counterclaim.

As a preliminary matter, the plaintiff's argument that the defendant improperly relied on General Statute § 52–584 in asserting that he may file a counterclaim at any time must be rejected.   It is improper for the court to consider material outside of the pleading that is being challenged by the motion.  Tracy v. New Milford Public Schools, 101 Conn.App. 560, 566, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007);  see also Rowe v. Godou, 209 Conn. 273, 278, 550 A.2d 1073 (1988) (in ruling on a motion to strike, court cannot resort to information outside of the pleading sought to be stricken).  “A speaking motion to strike is one improperly importing facts from outside the pleadings.”  Mercer v. Cosley, 110 Conn.App. 283, 292 n.7, 955 A.2d 550 (2008).

-II-

Practice Book § 10–60(a) provides in relevant part:  “Except as provided in Section 10–66 [amending amounts in demand], a party may amend his or her pleadings or other parts of the record or proceedings at any time subsequent to that stated in the preceding section in the following manner:  (3) By filing a request for leave to file such amendment, with the amendment appended after service upon each party ․ and with proof of service endorsed thereon.”   A counterclaim is deemed an ‘amendment’ for the purposes of Practice Book § 10–60.   In Sovereign Bank v. Licata, Superior Court, judicial district of Stamford–Norwalk at Stamford, Docket No. CV 02 0188146 (March 31, 2005, Dooley J.), the court acknowledged that a counterclaim is “in essence an amendment to the previously filed answer ․” Beasley v. Yale University, Superior Court, judicial district of New Haven, Docket No. CV–02–0460260 (October 3, 2005, Rodriguez, J.) [40 Conn. L. Rptr. 89].   A trial court may properly decline to consider an amendment because the party filing the amendment had failed to file a request to amend in accordance with the rules of practice.  Pekera v. Purpora, 273 Conn. 348, 359, 869 A.2d 1210 (2005).

In the present case, the defendant filed his counterclaim eight months after filing his answer, without first making a motion to amend.   The defendant's failure to file a request to amend his previously filed answer to include a counterclaim deprived the plaintiff of the opportunity provided by Practice Book § 10–60 to object to the amendment.   Therefore, because he failed to comply with the procedural requirements of Practice Book § 10–60, the defendant's counterclaim is not properly before this court.   The motion to strike is granted on this ground and it is not necessary to consider alternative claims for the granting of the motion.

For the foregoing reasons, the motion to strike the counterclaim is granted.

Wagner, J.T.R.

Wagner, Jerry, J.T.R.