United States District Court, N.D. Indiana, Hammond Division, Lafayette
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE.
matter is before the Court on a Motion for Leave to Amend
Answer to Plaintiff’s Amended Complaint [DE 17], filed
by Defendant Taylor Law, PLLC on November 17, 2017. Plaintiff
Russell Friend filed a response in December 1, 2017, and
Defendant filed a reply on December 8, 2017.
April 14, 2017, Plaintiff filed this lawsuit seeking a
preliminary injunction and permanent injunctive relief, a
declaratory judgment, actual damages, statutory damages,
attorney fees, and costs for violations of the Fair Debt
Collection Practices Act. On May 15, 2017, Plaintiff amended
his complaint to add a claim under the Telephone Consumer
Protection Act. Defendant filed an Answer on June 21, 2017.
20, 2017, the Court held a telephonic preliminary pretrial
conference, setting the deadline of September 22, 2017, to
file any motion to amend the pleadings.
November 15, 2017, Plaintiff’s counsel emailed a copy
of Plaintiff’s discovery responses to Defendant’s
counsel. Having reviewed those discovery responses, Defendant
now seeks leave of Court, pursuant to Federal Rule of Civil
Procedure 15, to amend its Answer to include applicable
attached to the instant motion a copy of the proposed Amended
Answer as required by Local Rule 15-1(a). However, the motion
itself does not identify the amendments or argue why they
should be permitted. A comparison of the June 21, 2017 Answer
and the proposed Amended Answer demonstrate that the proposed
amendments are the following four affirmative defenses:
1. Plaintiff has failed to state a claim upon which relief
can be granted.
2. Plaintiff’s claims may be barred by the statute of
3. Any violation of law, which is specifically denied, was
not intentional and resulted from a bona fide error
notwithstanding the maintenance of procedures reasonably
adapted to avoid any such error.
4. Plaintiff failed to mitigate any damages which he may have
(ECF 17-1, p. 20). Plaintiff objects to the motion on several
grounds. In its reply brief, Defendant withdraws the proposed
first affirmative defense, and, on this basis, the Court
denies the Motion to Amend as to the proposed first
affirmative defense. The Court considers in turn each of
Plaintiff’s arguments in relation to the remaining
three affirmative defenses.
Plaintiff argues that Defendant has failed to show excusable
neglect under Federal Rule of Civil Procedure 6(b) for filing
the motion after the September 22, 2017 deadline, and has
failed to show good cause for modifying the Court’s
scheduling order under Federal Rule of Civil Procedure 16(b).
Because the Court-ordered deadline for seeking leave to amend
pleadings has expired, whether to allow the proposed
amendment is evaluated under Federal Rule of Civil Procedure
16(b). Trustmark Ins. Co. v. Gen. & Cologne Life Re
of Am., 424 F.3d 542, 553 (7th Cir. 2005). Federal Rule
of Civil Procedure 16(b) provides that “[a] schedule
may be modified only for good ...