Parrott v. Chickillo et al

Filing 22

ORDER that the new claims alleged by Plaintiff in the Answer to Defendants Counterclaims, (Doc. No. 17), are hereby STRICKEN as improper. Signed by Chief Judge Frank D. Whitney on 5/15/2014. (Pro se litigant served by US Mail.) (tmg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:14-CV-00015-FDW-DSC
MARK RAY MARTIN PARROTT,
Plaintiff,
vs.
STEVEN CHICKILLO, and,
NETWORKS, LLC,
Defendants.

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ORDER

THIS MATTER is before the Court on Defendant’s Memorandum in Opposition to
Plaintiff’s Amendments to Complaint, (Doc. No. 20), in which Defendant moves to strike the
two new claims that Plaintiff asserted against Defendant and Defendant’s counsel in Plaintiff’s
Answer to Defendant’s Counterclaims, (Doc. No. 17), pursuant to Rules 15 and 12(f) of the
Federal Rules of Civil Procedure, respectively.

In Plaintiff’s Answer to Defendant’s

Counterclaims, Plaintiff attempts to amend his Complaint to join Defendant’s counsel and assert
a new cause of action against them for fraud and conspiracy in restraint trade in violation of
North Carolina General Statutes § 75-1, et seq. and/or the Sherman Act arising from a
confidentiality and non-disclosure agreement entered into by the parties. Additionally, Plaintiff
also asserts a new cause of action against Defendant for negligent misrepresentation.
Defendant’s asserts that since the period in which Plaintiff was permitted to amend his
complaint as a matter of course has passed and Plaintiff did not have Defendant’s consent or seek
leave of the Court to amend the Complaint, the amendment to add these new claims should not
be permitted under Federal Rule of Civil Procedure 15. Alternatively, Defendant argues that
Plaintiff’s new causes of action should be struck as futile pursuant to Federal Rule of Civil

Procedure 12(f).
Plaintiff replied to Defendant’s Memorandum asserting: (1) that Federal Rule of Civil
Procedure 7(a)(3) permits him to allege additional claims in an answer to counterclaims and (2)
that the new claims were not futile. (Doc. No. 21). Contrary to Plaintiff’s argument, new claims
asserted in an answer to a counterclaim are not a proper pleading under Rule 7(a)(3). Rather, in
order to assert additional claims, a party must amend its complaint in compliance with Rule 15.
Since the period in which Plaintiff was permitted to amend the Complaint as a matter of
course under Rule 15(a)(1) had passed, Plaintiff was required to comply with the requirements of
Rule 15(a)(2) to amend his complaint by either obtaining permission from Defendant or leave of
the Court. Fed. R. Civ. P. 15. As Plaintiff had neither obtained permission from Defendant nor
moved for leave of the Court to amend the Complaint, the amendment to add new claims was
improper.
IT IS THEREFORE ORDERED that the new claims alleged by Plaintiff in the Answer to
Defendant’s Counterclaims, (Doc. No. 17), are hereby STRICKEN as improper. As the Court
has stricken these claims for failing to follow proper procedure, the Court need not address the
futility of these new claims.
IT IS SO ORDERED.

Signed: May 15, 2014