VIRGINIA M. HERNANDEZ COVINGTON, Senior District Judge.
This matter comes before the Court pursuant to Defendant Steven J. Kaniadakis's Motion to Dismiss and Counterclaim (Doc. #11), filed on June 27, 2017. Plaintiff United States of America filed a response on July 12, 2017. (Doc. #14). For the reasons that follow, the Motion is denied.
According to the Complaint, Kaniadakis is indebted to the United States in the total amount of $443,170.01 for the principal and interest accrued for various student loans. (Doc. #1 at 1-2; Doc. #1-2). "Demand has been made upon [Kaniadakis] for payment of the indebtedness, and [Kaniadakis] has neglected and refused to pay the same." (Doc. #1 at 2).
The United States initiated this default of student loan action against Kaniadakis. (Doc. #1). Kaniadakis, who is proceeding pro se, then filed his Motion to Dismiss and Counterclaim (Doc. #11), arguing that allegations in the Complaint and attachments are incorrect and that the Complaint fails to state a claim. Kaniadakis also attempts to assert a counterclaim for violation of the Fair Debt Collection Practices Act (FDCPA) by the United States. (
On a motion to dismiss, this Court accepts as true all the allegations in the complaint and construes them in the light most favorable to the plaintiff.
As the United States correctly notes, Kaniadakis failed to identify whether his motion was brought under Rule 12(b)(6) and did not include a memorandum of legal authority as required by Local Rule 3.01(a).
Regarding the Counterclaim embedded in the Motion, Kaniadakis seems to raise various affirmative defenses to the United States' claim and asserts a violation of the FDCPA by the United States. (Doc. #11 at 4-5). But the proper place to raise a counterclaim is in an answer to the Complaint, not a motion to dismiss.
7 (drawing a distinction between pleadings, which include "an answer to a complaint," and motions). If Kaniadakis wishes to assert a counterclaim, he may do in his answer.
And, because Kaniadakis is proceeding pro se, the Court takes this opportunity to clarify some issues. First, Kaniadakis expresses concern that this action has not been brought by the United States, but rather "just another person trying to get unsubstantiated money owed by looking for leads in public records," because the United States is represented by outside counsel. (Doc. #11 at 1). But Kaniadakis's concern is unfounded. The United States frequently contracts outside counsel to handle certain types of cases, including student loan default cases.
The Court also advises Kaniadakis that pro se litigants must comply with all procedural rules of federal courts, including the Federal Rules of Civil Procedure and the Local Rules of the Middle District of Florida.
Additionally, if Kaniadakis has questions about the meaning of the Court's Orders, he may consult with a lawyer for free on a limited basis at the Legal Information Program operated by the Tampa Chapter of the Federal Bar Association on Tuesdays from 11:00 AM to 12:30 PM in the Sam M. Gibbons United States Courthouse, 801 North Florida Avenue, Tampa, Florida 33602. Appointments, which are recommended but not required, can be made by calling (813) 301-5400.
Accordingly, it is
Steven J. Kaniadakis's Motion to Dismiss and Counterclaim (Doc. #11) is