Jorge Figueroa v. LLC (2014)

MEMORANDUM ORDER IN RE OBJECTION TO REQUEST TO AMEND (# 130)

The defendant, Abel Rodriguez d/b/a Abel's Janitorial Service, objects to the request for leave to amend the complaint (# 126) filed by the plaintiff, Jorge Figueroa.   The defendant, an independent contractor, was brought into the present action by way of impleader and third-party complaint filed by the codefendant and contractor, Capital Contractors, LLC (Capital).   The plaintiff's request, filed on August 6, 2013, seeks to amend the complaint to include a claim against the defendant for negligence associated with the plaintiff's slip and fall which occurred on or about June 24, 2011.   Since the filing of the request, the defendant has moved for and the court has granted dismissal of the third-party complaint on the ground that the court lacked jurisdiction per the forum selection clause between the defendant and Capital.   The defendant's objection, filed on August 22, 2013, argues that the defendant is not properly before the court and references the defendant's motion to dismiss the third-party complaint (# 128).   The plaintiff replies that to not allow the complaint to be amended to include the defendant would require the plaintiff to file a separate action and later consolidate the cases.   The defendant surreplies that a separate action would also fail since the plaintiff's action is barred as to the defendant pursuant to the two-year statute of limitations set forth in General Statutes § 52–584.

Practice Book § 10–60(a) provides in relevant part:  “[A] party may amend his or her pleadings ․ at any time ․ in the following manner:  ․ (3) By filing a request for leave to file such amendment, with the amendment appended, after service upon each party as provided by Sections 10–12 through 10–17, and with proof of service endorsed thereon.   If no objection thereto has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party.”   The plaintiff's request and the defendant's objection were filed by the parties on August 6, 2013, and August 22, 2013, respectively.   Additionally, the plaintiff's request includes a certificate of service indicating that the defendant was served by mail on August 5, 2013.   Therefore, since the plaintiff's request complies with § 10–60 and the defendant's objection was not filed within fifteen days from the date of the filing of the plaintiff's request, § 10–60 mandates that the amended complaint be deemed to have been filed by consent of the defendant.

The argument that the defendant is not properly before the court and that the court thereby lacks jurisdiction over the plaintiff's claim is inapposite to the present request.  “Any defendant, wishing to contest the court's jurisdiction ․ must do so by filing a motion to dismiss ․” Practice Book § 10–30.   The court's order granting the defendant's motion to dismiss is as to the third-party complaint and the claims contained therein, and not the plaintiff's complaint.   The defendant's argument concerning lack of jurisdiction is, therefore, improper as considered in the context of an objection to a request to amend.

The argument that the plaintiff's claim is barred under the applicable statute of limitations is equally unavailing.  “Practice Book § 10–50 provides that [f]acts which are consistent with [the claimant's allegations] but show, notwithstanding, that the plaintiff has no cause of action, must be specially alleged.   Thus ․ the statute of limitations ․ must be specially pleaded ․ The fundamental purpose of a special defense, like other pleadings, is to apprise the court and opposing counsel of the issues to be tried, so that basic issues are not concealed until the trial is underway.”  (Citations omitted;  internal quotation marks omitted.)  Commissioner of Mental Health and Addiction Services v. Saeedi, 143 Conn.App. 839, 854, 71 A.3d 619 (2013).   At no point has the defendant filed any answer or special defense in the case pleading statute of limitations as a special defense.   Therefore, the defendant's statute of limitations defense is also improper as considered in the context of an objection to a request to amend.

Accordingly, for the foregoing reasons, the defendant's objection to the plaintiff's request to amend the complaint is overruled.

It is So Ordered,

Nazzaro, J.

Nazzaro, John J., J.