Opinion
No. CV 09-6006355 S
May 5, 2011
MEMORANDUM OF DECISION
FACTS
The plaintiff, Christopher Bracken, commenced this action by service of process on the defendants, Jean Welty, and Welty Esposito Wieler, LLC, on December 4, 2009. He alleges the following facts in his complaint, dated December 2, 2009. In count one, sounding in legal malpractice, the plaintiff alleged that at all relevant times, Jean Welty was an attorney and practiced as a member of the law firm, Welty Esposito Wieler, LLC. On or about June 16, 2005, the plaintiff retained both defendants to represent him in his divorce action and custody dispute. The plaintiff alleged that the defendants did not represent the plaintiff with regard to these matters in accordance with the standard of care for lawyers in the state of Connecticut, and that he has suffered damages as a result. In count two, sounding in breach of contract, the plaintiff alleged that the defendants agreed to represent the plaintiffs in his divorce action and custody dispute and that they would perform that representation with skill and diligence in accordance with the standard of care for lawyers performing such work in the state of Connecticut. The plaintiff further alleged that he suffered damages because the defendants breached that agreement by failing to properly protect his interests.
Specifically, the plaintiff alleges that the defendants failed to represent him in accordance with the appropriate standard of care in that they: (a) failed to obtain or seek to obtain ex parte and for other immediate termination of the mother's parenting time with the minor children; (b) failed to obtain or seek to obtain full custody of the minor children for the plaintiff; (c) failed to obtain or seek to obtain supervised visitation of the mother when with the minor children; (d) failed to seek and obtain court-ordered alcohol and drug test monitoring of the mother in connection with her time around the minor children; and (e) failed to file a motion to modify alimony and child support pendente lite.
In response, both defendants filed an answer to the plaintiff's complaint on February 2, 2010. On November 29, 2010, however, Jean Welty filed a request for leave to amend the answer to include three counterclaims sounding in defamation, statutory vexatious litigation and common-law vexatious litigation. In her defamation counterclaim, the defendant alleges the following facts. On or about January 14, 2009, the plaintiff instituted proceedings against the defendant by filing a complaint with the Connecticut Statewide Grievance Committee in which he alleged that during the course of her representation of the plaintiff, the defendant was negligent, incompetent and lacked diligence in contravention of the Connecticut Rules of Professional Conduct. The grievance committee dismissed the grievance on June 19, 2009, determining that no probable cause of misconduct existed. In addition, in January 2009, the plaintiff sent a letter to Jane I. Milas, president of the New Haven County Bar Association, accompanied by copies of documents that the plaintiff had filed with the grievance committee. The defendant alleges that the plaintiff sent those documents to Milas intending to imply that the defendant is incompetent and lacks skill in her profession.
Although both Jean Welty and Welty Esposito Wieler, LLC filed their initial answer on February 2, 2010, only Jean Welty filed the relevant pleading at issue in this opinion, a request for leave to amend her answer to include counterclaims on November 29, 2010. In this memorandum, Jean Welty will be referred to as "the defendant."
The defendant alleges that the documents contain language including the following: (a) "The monetary, emotional and physical damages directly caused by Attorney Welty's failure to keep Christopher Bracken (the client) reasonably informed, comply with the client's reasonable requests for information, and explain matters to the client so the client could make informed decisions were so negligent and outrageous the complainant alleges the attorney's failures were factually malicious and destructive"; (b) "He [Christopher Bracken] made over three hundred calls, sent at least 50 faxes, and over 12 e-mails (once an email address was given by the Attorney's office) sent to Attorney Welty that were unreturned and unacknowledged;" (c) "The attorney willfully and negligently chose to ignore the health of the plaintiff thereby affecting her client and . . . his children."
In addition, the defendant alleges that the plaintiff posted written comments on the websites www.lawyerratingz.com and www.avvo.com, which were intended to imply and do in fact imply to a reasonable person that the defendant demonstrated improper conduct and/or lack of skill in her profession. The defendant further alleges that internet links to these postings are displayed prominently when a person conducts a Google search for Jean Welty, and that the plaintiff's comments were made in a manner such that they will be communicated to third persons who might otherwise have become the defendant's prospective clients. The defendant further alleges that all of the above written publications were false and malicious and concern the defendant's integrity and professional practice, and that the plaintiff knew his statements were false and/or made the publications with indifference as to whether they were true or false.
The defendant alleges that the plaintiff posted comments on www.lawyerratingz.com that include the following: "Stay away from Welty — arrogant, negligent, dislikes strong men, divorced herself, in last days of her career." In addition, she alleges that the plaintiff posted the following comments on www.avvo.com: "Jean Welty does nothing," "Welty did nothing for me in my divorce except take my money," and "You will make a huge mistake if you engage this attorney."
In her second counterclaim, the defendant alleges statutory vexatious litigation pursuant to General Statutes § 52-568. She states that the grievance committee's dismissal of the plaintiff's grievance represents a favorable termination of the proceeding in favor of the defendant. She alleges that the plaintiff did not have probable cause to commence and prosecute the grievance, that he did so with improper motive and with the malicious intent to unjustly vex the defendant, and that she suffered damages as a result. In her third counterclaim, sounding in common-law vexatious litigation, the defendant claims that the plaintiff's commencement and prosecution of the grievance proceedings constitutes reckless indifference of the defendant's rights and/or an intentional and wanton violation of such rights.
On December 16, 2010, the plaintiff filed an objection to the defendant's request for leave to amend her answer. The next day, the defendant filed a reply to the plaintiff's objection. Thereafter, the parties filed a lengthy series of reply briefs. The court heard oral argument on February 14, 2011.
DISCUSSION
"[R]ulings on a motion to amend an answer similarly lie within the discretion of the trial court . . . The trial court is in the best position to assess the burden which an amendment would impose on the opposing party in light of the facts of the particular case. `The essential tests are whether the ruling of the court will work an injustice to either the plaintiff or the defendant and whether the granting of the motion will unduly delay a trial.'" (Citations omitted.) Wallingford v. Glen Valley Associates, Inc., 190 Conn. 158, 161-62, 459 A.2d 525 (1983). "While our courts have been liberal in permitting amendments . . . this liberality has limitations. Amendments should be made seasonably. Factors to be considered in passing on a motion to amend are the length of the delay, fairness to the opposing parties and the negligence, if any, of the party offering the amendment . . . The motion to amend is addressed to the trial court's discretion which may be exercised to restrain the amendment of pleadings so far as necessary to prevent unreasonable delay of the trial . . . Whether to allow an amendment is a matter left to the sound discretion of the trial court." (Internal quotation marks omitted.) Dow Condon, Inc. v. Brookfield Development Corp., 266 Conn. 572, 583, 833 A.2d 908 (2003).
I IT IS PROCEDURALLY IMPROPER TO CONSIDER THE LEGAL SUFFICIENCY OF THE COUNTERCLAIMS ON AN OBJECTION TO A REQUEST FOR LEAVE TO AMEND
The plaintiff objects to the defendant's request for leave to amend on the ground that neither her defamation nor her vexatious litigation claims set forth legally sufficient causes of action. He also asserts that, in ruling on a request for leave to amend an answer, the court may consider the likelihood that the defendant will prevail on the claims asserted in the proposed counterclaim. The defendant counters that it is procedurally improper to object to a request for leave to amend an answer to assert counterclaims on this basis because such requests may not be denied on the ground that the counterclaims are legally insufficient.
"[A] counterclaim is a cause of action existing in favor of the defendant against the plaintiff and on which the defendant might have secured affirmative relief had he sued the plaintiff in a separate action." Wallingford v. Glen Valley Associates, Inc., supra, 190 Conn. 160. Pursuant to Practice Book § 10-39(a)(5), when a party seeks to contest the "legal sufficiency of any answer to any . . . counterclaim . . . that party may do so by filing a motion to strike the contested pleading or part thereof." "A motion to strike tests the legal sufficiency of a cause of action and may properly be used to challenge the sufficiency of a counterclaim." (Internal quotation marks omitted.) JP Morgan Chase Bank, Trustee v. Rodrigues, 109 Conn.App. 125, 131, 952 A.2d 56 (2008). "The proper procedural vehicle to challenge the legal sufficiency of a proposed pleading is a motion to strike, rather than an objection to a motion to amend . . . Thus, even if a proposed pleading is alleged to be insufficient, a `plaintiff should be permitted to file [the amended pleading], so that the issues arising under it may be determined in proceedings properly adapted to that end.'" (Citation omitted.) Rizzuto v. Davidson Ladders, Inc., 280 Conn. 225, 256-57, 905 A.2d 1165 (2006); see Smith v. Furness, 117 Conn. 97, 100, 166 A. 759 (1933) (holding that trial court erred by refusing to allow amended pleading on ground that facts stated were not legally sufficient to constitute a defense).
In the present case, the plaintiff objects to the defendant's request for leave to amend her answer to include counterclaims on the basis of legal insufficiency. Even if the proposed counterclaims are legally insufficient, however, the plaintiff's objection may not be granted on that basis. Rather, the issue of legal sufficiency is properly raised in a request to strike.
The plaintiff argues in his reply brief that, in ruling on a request to amend an answer, the court may consider the likelihood that the defendant will prevail on the claims asserted in the proposed amended pleading. The heading of this section, however, is titled "The motion to amend should be denied because the defendants' claims are not legally viable and the defendants will not prevail on such claims." In this section, the plaintiff states that in Wallingford v. Glen Valley Associates, Inc., supra, 190 Conn. 158, the court sustained an objection to the defendant's request to amend its answer where neither "amendment proposed by [the defendant] was a prima facie defense to the foreclosure action" and permitting "these special defenses which did not adequately challenge the complaint would have been an injustice to the plaintiff." He also includes a footnote stating that "[a]ppellate case law disallowing the court to consider the viability of an amendment is distinguishable in that such cases have arisen in the context of a request to amend the complaint, not a request to amend the answer to assert the counterclaim. Moreover, Wallingford v. Glen Valley Associates, Inc., is still good law and has not been overruled."
After the plaintiff filed his objection to the defendant's request for leave to amend, both parties filed a lengthy series of reply and sur-reply briefs. In this memorandum, all references to "the plaintiff's reply brief" will be to the plaintiff's brief dated January 13, 2011, titled "plaintiff/counterclaim defendant's supplemental objection to the motion to amend the answer."
The plaintiff's use of the term "legal viability" is confusing. Although he seems to imply that "legal viability" means "the likelihood that the defendant will prevail on the claims asserted in the proposed amended pleading," no case law supports this proposition. Instead, many cases discuss legal viability in the context of loss of consortium cases, where such a cause of action is legally viable in that it is derivative of the injured spouse's claim. See Parker v. Shaker Real Estate, Inc., 47 Conn.App. 489, 496, 705 A.2d 210 (1998) (loss of consortium claim is dependent for its assertion on the legal viability of the cause of action in the injured party); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 564, 562 A.2d 1100 (1989) (same). Other cases equate "legal viability" with "legal sufficiency." See Klingensmith v. Denomme, Superior Court, judicial district of New London, Docket No. CV 09 5013448 (September 29, 2010, Martin, J.) [ 50 Conn. L. Rptr. 698] ("The court notes at the onset that the proper vehicle to challenge the legal viability of [the third party plaintiff's] third party complaint is a motion to strike"); Simoes v. Venditto, Superior Court, judicial district of New Haven, Docket No. CV 08 5024069 (October 26, 2009, Wilson, J.) (same).
If the plaintiff intends to equate legal viability with legal sufficiency, such an argument would properly be raised by a motion to strike and not by an objection to the request to amend, as discussed above. In addition, his statement that "[a]ppellate case law disallowing the court to consider the viability of an amendment is distinguishable in that such cases have arisen in the context of a request to amend the complaint, not a request to amend the answer to assert the counterclaim" is of no moment. It is unclear why the court should consider a counterclaim's legal sufficiency if the proposed amendment seeks to amend an answer to assert a counterclaim as opposed to if it seeks to amend a complaint. The plaintiff presents no legal authority to support his argument that, as a procedural matter, the defendant cannot amend the answer to assert counterclaims.
If the plaintiff intended to assert that legal viability is defined as the likelihood that the defendant will prevail on the claims asserted in the proposed amendment, such an assertion is not supported by case law. In Wallingford, which the plaintiff cites to in support of this proposition, the trial court granted the plaintiff's objection to the defendant's request for leave to amend to include special defenses. The Appellate Court affirmed on appeal, holding that it was correct to grant the plaintiff's objection to the defendant's request for leave to amend. The court stated: "Neither amendment proposed by [the defendant] was a prima facie defense to the foreclosure action . . . The [trial] court could . . . have reasonably concluded that while such a claim could be the basis for an independent action it was unrelated to and could not defeat plaintiff's cause of action. The special defense sought to be interposed . . . clearly would not defeat the foreclosure action." (Emphasis added.) Id., 162.
Wallingford is inapposite to the present case. First, the defendant in Wallingford requested leave to amend its answer to include special defenses, not counterclaims. Second, and more importantly, the Wallingford court based its decision to grant the plaintiff's objection to the defendant's request not on the ground of legal insufficiency, but on the basis of a rule of practice requiring that a special defense may prove facts only if they show that a plaintiff's statements of fact are untrue. The court relied on Practice Book § 164 [now § 10-50], which states in relevant part: "No facts may be proved under either a . . . special denial except such as show that the plaintiff's statements of fact are untrue." In Wallingford, the court emphasized that the defendant's proposed special defenses, which alleged a lack of benefit from sewer facilities, were unrelated to and could not defeat the plaintiff's foreclosure action. Contrary to the plaintiff's argument, the court did not grant the plaintiff's objection because the defendant's special defenses were legally insufficient; rather, the court granted the objection because the special defenses failed to comply with the applicable rule of practice requiring that facts pleaded in a special defense must show that the plaintiff's statements of fact are untrue. Accordingly, Wallingford does not stand for the proposition that the court may consider the likelihood that the defendant will prevail on her counterclaims. Therefore, the court will not consider the legal sufficiency of the proposed counterclaims in ruling on the defendant's request for leave to amend.
II THE COUNTERCLAIM DOES NOT ARISE OUT OF THE SAME TRANSACTION
The plaintiff objects to the request for leave to amend on the ground that the defendant's defamation and vexatious litigation counterclaims do not arise out of the same transaction as the complaint. The defendant counters that the facts underlying both of her counterclaims are based on the same alleged negligent conduct that underlie the plaintiff's claims.
Practice Book § 10-10 provides in relevant part: "In any action for legal or equitable relief, any defendant may file counterclaims against any plaintiff . . . provided that each such counterclaim . . . arises out of the transaction or one of the transactions which is the subject of the plaintiff's complaint . . ." "This section is a commonsense rule designed to permit the joinder of closely related claims where such joinder is in the best interests of judicial economy . . . The transaction test is one of practicality . . ." (Internal quotation marks omitted.) South Windsor Cemetery Assn., Inc. v. Lindquist, 114 Conn.App. 540, 546, 970 A.2d 760, cert. denied, 293 Conn. 932, 981 A.2d 1076 (2009). "[R]elevant considerations in determining whether the `transaction test' has been met include whether the same issues of fact and law are presented by the complaint and the [counter]claim and whether separate trials on each of the respective claims would involve a substantial duplication of effort by the parties and the courts." (Internal quotation marks omitted.) Id., 547. "[T]he courts seem to be saying that where the legal claim of the complaint and the evidence to prove it is completely different from the claims of the counterclaim and the evidence that will be used to establish it, there really is no judicial economy to be achieved [by allowing the counterclaim to proceed]." Grant v. Lettieri, Superior Court, judicial district of New Haven, Docket No. CV 08 4034372 (December 10, 2009, Corradino, J.).
A counterclaim does not arise from the same transaction as the complaint where the allegations in the counterclaim relate solely to conduct of the plaintiff occurring after the events involved in the subject matter of the complaint. In JP Morgan Chase Bank, Trustee v. Rodrigues, supra, 109 Conn.App. 125, the plaintiff bank, the assignee of a note and mortgage executed by the defendants, sued the defendants, seeking to foreclose the mortgage. The defendants filed a counterclaim alleging, inter alia, intentional infliction of emotional distress due in part to the plaintiff's failure to comply with a forbearance agreement between the defendants and the plaintiff's predecessor. The trial court granted the plaintiff's motion to strike the defendants' counterclaim. The Appellate Court affirmed, emphasizing that the facts alleged in the defendants' counterclaim occurred after the facts giving rise to the plaintiff's complaint, and that the subject matter of the plaintiff's complaint and the counterclaim were too distinct from each other. The court stated: "[T]he defendants' allegations [of emotional distress] related to the conduct of the plaintiff that occurred after the execution of the mortgage note and with respect to documents other than the mortgage note. The disparity between the subject matter of the plaintiff's complaint and that of the defendants' counterclaim warranted the court's conclusion that the counterclaim did not arise from the same transaction." (Emphasis added.) Id., 133.
Similarly, in South Windsor Cemetery Assn., Inc. v. Lindquist, supra, 114 Conn.App. 548, the transaction underlying the complaint involved the transfer of land interest, whereas the stricken counts in the counterclaim, alleging, inter alia, intentional and negligent infliction of emotional distress, "involve interactions between the plaintiff and the defendant that occurred well after the transfer took place." (Emphasis added.) Id. The Appellate Court held that the defendants' counterclaim should be stricken for failure to meet the transaction test. "Those allegations [raised in the counterclaims] relate to the behavior of the plaintiff and do not pertain to the specific subject of the plaintiff's complaint." Id., 547; see Southbridge Associates, LLC v. Garofalo, 53 Conn.App. 11, 21, 728 A.2d 1114, cert. denied, 249 Conn. 919, 733 A.2d 229 (1999) (counterclaim based on plaintiff's conduct which occurred "well after the loan documents were executed" deemed not to arise from same transaction as plaintiff's foreclosure cause of action).
In the present complaint, the plaintiff's allegations of legal malpractice and breach of contract stem from Jean Welty and Welty Esposito Wieler, LLC's legal representation of the plaintiff. Such representation began on or about June 16, 2005, and ended before January 2009. The defendant alleges in her proposed counterclaim that on or about January 14, 2009, the plaintiff filed a grievance complaint with the Connecticut Statewide Grievance Committee. She also alleges that the plaintiff sent a letter to the New Haven County Bar Association that was received on or about January 23, 2009. The defendant attaches two exhibits to her request for leave to amend, including an allegedly defamatory statement posted by the plaintiff on www.lawyerratingz.com on June 13, 2010, and a similar statement posted on www.avvo.com around October 2009. Thus, all of the facts giving rise to the defendant's counterclaims clearly relate to conduct by the plaintiff that took place two or three years after the termination of the attorney-client relationship.
The defendant argues that both the plaintiff's complaint and her own proposed counterclaims stem from the plaintiff's claim that the defendant's legal representation of him was negligent. She cites to Foster v. Delman, Superior Court, judicial district of Waterbury, Docket No. CV 06 5002506 (August 22, 2008, Roche, J.), and Bianca v. Madison Direct Marketing, Ltd., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0161755 (December 16, 1999, D'Andrea, J.), in support of her argument that the complaint and counterclaims arise from the same transaction, even though the facts underlying the counterclaims took place subsequent to the facts giving rise to the complaint. Both cases, however, are inapposite to the present case. In Foster v. Delman, supra, the plaintiff alleged that the defendant had embezzled and/or committed larceny of company funds while working as an office manager of the plaintiff's company. The defendant filed a counterclaim, alleging, inter alia, invasion of privacy, slander per se and intentional infliction of emotional distress, based on acts of the plaintiff that took place while she was still working for the plaintiff's company. The court denied the motion to strike, holding that the transaction test had been met because both the complaint and counterclaim arose out of the employment relationship. "The counts alleged in the counterclaim are premised on the defendant's claims of the plaintiff's improper behavior, threats, and advances towards the defendant CT Page 10839 during her scope of employment as his office manager. Because she rejected these advances and married another man, the defendant alleges she was wrongfully terminated and the plaintiff failed to pay her unemployment benefits." (Emphasis added.) Id. Although the court acknowledged that the defendant's counterclaim included allegations that she and her family had been constantly harassed by the plaintiff — presumably occurring after the employment relationship had ceased — the vast majority of the counterclaim stemmed from incidents that took place during the course of the employment relationship. The present case is distinct, however, in that all of the plaintiff's conduct giving rise to the defendant's counterclaims took place after the legal representation had ended.
In Bianca v. Madison Direct Marketing, Ltd., supra, the plaintiff sued her former employers for wrongful termination. The defendants subsequently brought a counterclaim, alleging slander per se. The court denied the plaintiff's motion to strike the counterclaim, stating that the defendants "alleged that the plaintiff passed on information to business associates of the defendants which inter alia, included statements that `the company, in general, tolerated an atmosphere of . . . inappropriate treatment of the plaintiff and other employees." The court did not state that the plaintiff's statements were made after she was wrongfully terminated. It did state, however, that "[t]he issues raised by the counterclaim are certainly part of the same transaction alleged in the complaint as they go to proving the issue of whether the plaintiff was in fact wrongfully terminated." This strongly suggests that the defendants terminated the employment relationship in response to slanderous statements made by the plaintiff while she was still employed by the defendants. Therefore, although both Foster v. Delman and Bianca v. Madison Direct Marketing, Ltd. involved counterclaims which the court allowed, neither case supports the proposition that a counterclaim arises from the same transaction as the complaint where it arises from facts taking place after the facts giving rise to the complaint.
The disparity between the subject matter of the plaintiff's complaint, alleging legal malpractice and breach of contract, and the defendant's counterclaims, alleging defamation and vexatious litigation, further demonstrates that her counterclaims do not arise from the same transaction as the complaint. The facts in Russo v. Harnett, 36 Conn.Sup. 315, 419 A.2d 351 (1980), are strikingly analogous to the present case. There, the plaintiffs brought negligence and misrepresentation claims against the defendant real estate agents. One agent brought a defamation counterclaim based on the plaintiffs' statements to the real estate commission intending to convey that the defendant was deceitful as well as their circulation of the letter with intent to injure the defendant's reputation. The court granted the plaintiffs' motion to strike the counterclaim: "The allegations contained in the counterclaim, such as the allegation that the plaintiffs circulated the letter in question with express and implied malice with the intent to injure the defendant's reputation and professional standing, raise different issues of fact and law from those presented in the main complaint. The issues raised in the counterclaim would unnecessarily complicate the main complaint and should be separately tried." Id. Similar to the present case, the causes of action in the complaint and counterclaim involve separate issues of law and fact; in addition, all of the plaintiff's conduct giving rise to the defendant's counterclaim occurred after the facts giving rise to the complaint.
Here, the defendant, who acknowledges the similarities between Russo and the present case, counters that Russo should not be followed because "the specific allegations of the counterclaim in Russo are not set forth in the Court's decision, and, therefore, it is difficult to ascertain to what extent the statements related to the facts underlying the prior relationship between the parties, as opposed to facts that were extraneous to the relationship." Although the Russo court does not explicitly set forth the allegations of the counterclaim, it is clear that the plaintiffs' conduct took place after the set of facts giving rise to the plaintiffs' complaint took place. As a result, it is irrelevant whether or not the statements related to facts underlying the prior relationship between the parties. Second, the defendant argues that counterclaims may be permitted even where the elements of the plaintiff's claims and the defendant's counterclaims are different enough from each other that they require different evidence. For example, in Northwestern Electric v. Rozbicki, 6 Conn.App. 417, 426, 505 A.2d 750 (1986), the Supreme Court stated: "[A] counterclaim sounding in tort could be filed in a contract action if `the subject matter of the counterclaim is so connected with the matter in controversy under the original complaint that its consideration is necessary for a full determination of the rights of the parties.'" In each of the cases cited by the defendant, however, the plaintiff's conduct occurred contemporaneously with the facts giving rise to the plaintiff's original complaint. See id., 417 (where plaintiff filed suit for unpaid balance for services rendered, defendant allowed to assert tort counterclaim for damages arising out of plaintiff's performance pursuant to contract); Morgera v. Chiappardi, 74 Conn.App. 442, 445, 813 A.2d 89 (2003) (in response to foreclosure proceedings by original owner, defendant permitted to assert counterclaims alleging, inter alia, misrepresentation of properties purchased from plaintiff along with subject property); Irving v. Cummings, Superior Court, judicial district of New London, Docket No. 525798 (February 8, 1994, Austin, J.) (in attorney's action to recover legal fees, defendant allowed to assert counterclaim alleging unlawful retention of client property).
The defendant's counterclaims are based on conduct of the plaintiff which occurred after the events that gave rise to the plaintiff's complaint and involve issues of law and fact which are disparate from the issues brought in the plaintiff's complaint. Accordingly, the defendant's counterclaim does not arise from the same transaction as the complaint.
CONCLUSION
For the foregoing reasons, the court denies the defendant's request for leave to amend.