United States District Court, S.D. Indiana, Terre Haute Division
DANIEL L. BROWN, Plaintiff,
PRESSTIME GRAPHICS, INC., et al., Defendants.
ENTRY REGARDING ISSUE OF WILLFULNESS
WILLIAM T. LAWRENCE, JUDGE UNITED STATES DISTRICT COURT
final pretrial conference in this case, the Court took under
advisement the issue of whether the Defendants have forfeited
the right to assert a lack of willfulness for Fair Labor
Standards Act (“FLSA”) purposes because they
failed to assert a statute of limitations affirmative
defense. The Court has now considered the issue and, being
duly advised, rules as follows.
Plaintiff filed his Complaint on December 11, 2013, alleging
that while he was employed by the Defendants from June 2010
through October 2013 the Defendants failed to pay him
overtime as required by the FLSA. Although the statute of
limitations applicable to the FLSA is either two years or
three years, depending on whether the violation is willful,
and the Plaintiff's allegations clearly extended back
more than two-indeed, more than three-years prior to the date
of the Complaint, the Defendants did not plead the statute of
limitations defense in their Answers to the Complaint; in
fact, they did not plead any affirmative defenses. Pursuant
to Federal Rule of Civil Procedure 8(c), the statute of
limitations is an affirmative defense that must be pled.
It has long been recognized that a defendant's failure to
plead the statute of limitations as an affirmative defense in
his or her answer to the complaint constitutes a waiver of
that defense. Venters [v. City of Delphi], 123 F.3d
, 967-68 [7th Cir. 1997] (citations omitted) (statute of
limitations defense waived where not pleaded in answer and
raised for first time in response to motion for summary
judgment without motion to amend answer).
United States v. Adent, 821 F.3d 911, 914 (7th Cir.
2016). In other words, if a defendant believes that some or
all of a plaintiff's claim is barred by the applicable
statute of limitations, the defendant must so assert in its
answer. If the defendant fails to do so, the statute of
limitations will not act as a bar to the plaintiff's
claim; if, for example, the plaintiff pled and proved that he
had been denied overtime pay that was required by the FLSA
for a period of ten years, he could recover for all ten
years, even if the applicable statute of limitations, if
pled, would have limited him to two or three years.
true that a “district court has the discretion to allow
an answer to be amended to assert an affirmative defense not
raised initially.” Williams v. Lampe, 399 F.3d
867, 871 (7th Cir. 2005) (citing Fed.R.Civ.P. 15(a) and
Jackson v. Rockford Housing Auth. 213 F.3d 389,
392-93 (7th Cir. 2000) (“Amendment is allowed absent
undue surprise or prejudice to the plaintiff.”)).
However, the Court declines to do so under the circumstances
of this case. The Defendants in this case did not merely fail
to raise the statute of limitations defense in their answers;
they also affirmatively stated in their trial brief that
“[n]o affirmative defenses are raised.” Dkt. No.
99 at 1. And even if the Defendants viewed the issue not as a
statute of limitations defense, but rather as the issue of
whether they acted willfully-a question on which the
Plaintiff would have the burden of proof-the Plaintiff
squarely raised the issue in his first motion in limine by
arguing the following:
Defendants should be precluded from making any statement or
offering any evidence or argument that a shortened two-year
statute of limitations is applicable to this case. The FLSA
provides for a two-year statute of limitations that can be
extended to three-years [sic] for a violation that is
willfull [sic] or made with reckless disregard for the law.
The applicable statute of limitations is an affirmative
defense that must be raised by Defendants, or it is waived.
Here, Defendants did not raise the statute of limitations as
an affirmative defense in this matter. As a result,
Defendants have waived this issue. See Braddock v.
Madison County, IN, 34 F.Supp.2d 1098, 1112 (S.D. Ind.
1998). “The statute of limitations defense remains an
affirmative defense that must be pleaded in an answer, and
the defendant can waive the defense by failing to plead
Dkt. No. 106 at 1-2. Had the Defendants filed a timely
response to the motion in limine-which, under the case
management plan, was due on September 30, 2016-and either
sought to amend their answers to assert the statute of
limitations defense or put forth a reasonable argument that
they were not required to plead the statute of limitations
defense in order to assert a lack of willfulness (and, thus,
the applicability of the two-year statute of limitations),
the Court might have been inclined to excuse the waiver,
assuming the Plaintiff could not show prejudice. They did not
do so, however; they filed no response to the Plaintiffs'
motion in limine. Accordingly, with regard to the
Plaintiff's FLSA claim, the two-year statute of
limitations will not operate as a bar in this case,
and the jury will not be asked to determine whether any FLSA
violation it finds was willful.
light of this ruling, those portions of the Defendants'
motion in limine that were taken under advisement by the
Court (see Dkt. No. 112) are now GRANTED.
Lack of willfulness is not an
affirmative defense under the FLSA; rather, the Plaintiff has
the burden of proving willfulness. Thus, the Defendants were
not required specifically to raise lack of willfulness in
their answers, but they were required to plead that the
Plaintiff's claims were barred, in part, by the
applicable statute of limitations. In the absence of the
assertion of that affirmative defense, it becomes irrelevant
whether the Defendants acted willfully, as the
Plaintiff's claims are not time barred in either
In this case, the Plaintiff
affirmatively states in his trial brief that “[f]or
purposes of his FLSA claim, the relevant time period is the
three-year period preceding the filing of this lawsuit
through the termination of his employment with Defendants;
i.e. December 11, 2010 through October 22, 2013, ” and
that he seeks unpaid non-overtime wages under Indiana law for
five hours per week for the weeks of December 11, 2011,
through July 21, 2012. Dkt. No. 105 at 3. Accordingly, the
Plaintiff has waived his right to disregard the applicable
statutes of limitation in their entirety, and he thus will