United States District Court, N.D. Indiana, Hammond Division
OPINION AND ORDER
R. CHERRY MAGISTRATE JUDGE
matter is before the Court on Defendant's Motion for
Leave to Amend Its Affirmative Defenses to Include a Defense
for After-Acquired Evidence [DE 24], filed by Defendant
Short-Elliott-Hendrickson, Incorporated on January 25, 2018.
Plaintiff filed a response in opposition on February 8, 2018,
and Defendant filed a reply on February 15, 2018.
motion, Defendant seeks leave to amend its affirmative
defenses. Defendant represents that documents produced by
Plaintiff on November 30, 2017, made Defendant aware of
evidence that supports an affirmative defense of
after-acquired evidence justifying termination of
Plaintiff's employment with Defendant. The deadline to
amend pleadings passed on December 1, 2017.
initial matter, this case is governed by Federal Rules of
Civil Procedure 6(b) and 16 because the instant motion was
filed after the deadline for the amendment of pleadings.
See Alioto v. Town of Lisbon, 651 F.3d 715,
719-720 (7th Cir. 2011) (discussing the interplay between
Federal Rules of Civil Procedure 15(a) and 16(b)). Rule
When an act may or must be done within a specified time, the
court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if
a request is made, before the original time or its extension
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
Fed. R. Civ. P. 6(b)(1). Rule 16(b)(4) provides that
“[a] schedule may be modified only for good cause and
with the judge's consent.” Fed.R.Civ.P. 16(b)(4).
points out that Defendant did not file the instant motion
until January 25, 2018, even though the documents that
purportedly support the amendment were turned over in
discovery on November 30, 2017, and the deadline to amend
expired on December 1, 2017. Defendant represents that over
600 pages of documents were turned over on November 30, 2017,
and the period between the deadline's expiration and the
filing of the instant motion included both Christmas and New
Years holidays, and one of Defendant's attorneys was out
of the country for two weeks during this time period as well.
The Court finds that Defendant has shown both good cause
under Rule 16(b) and excusable neglect under Rule 6(b) for
seeking leave to amend its affirmative defenses after the
expiration of the court-imposed deadline of December 1, 2017.
for leave to amend pleadings are freely granted when
“justice so requires.” Fed.R.Civ.P. 15(a)(2).
However, “district courts have broad discretion to deny
leave to amend where there is undue delay, bad faith,
dilatory motive, repeated failure to cure deficiencies, undue
prejudice to the defendants, or where the amendment would be
futile.” Arreola v. Godinez, 546 F.3d 788, 796
(7th Cir. 2008) (citing Foman v. Davis, 371 U.S.
178, 182 (1962); Thompson v. Ill. Dep't of Prof'l
Regulation, 300 F.3d 750, 759 (7th Cir. 2002)).
to add an affirmative defense is futile if the affirmative
defense would not survive a motion to strike under Federal
Rule of Civil Procedure 12(f). EEOC v. Orion Energy Sys
Inc., 145 F.Supp.3d 841, 844 (E.D. Wis. 2015).
Affirmative defenses are stricken “only when they are
insufficient on the face of the pleadings.”
Williams v. Jader Fuel Co., Inc., 944 F.2d 1388,
1400 (7th Cir.1991) (citing Heller Fin., Inc. v. Midwhey
Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989)).
Affirmative defenses must provide a short and plain statement
of the defense and adequately put the plaintiff on notice of
the defense. Heller Fin., Inc. v. Midwhey Powder
Co., 883 F.2d 1286, 1294 (7th Cir. 1989).
argues that Defendant should not be allowed to amend its
affirmative defenses because it will not be able to succeed
on the merits of the after-acquired evidence defense.
However, “[f]utility, in the context of Rule 15, refers
to the inability to state a claim, not the inability of the
plaintiff to prevail on the merits.” Schilke v.
Wachovia Mortg., FSB, 758 F.Supp.2d 549, 554 (N.D. Ill.
2010) (citing Bower v. Jones, 978 F.2d 1004, 1008
(7th Cir. 1992)). Thus, Plaintiff's argument that
Defendant cannot succeed on the merits does not show the
amendment to be futile.
lastly argues that he will be unfairly prejudiced if
amendment it allowed. He argues that the factfinder will
improperly assume that the affirmative defense is correct and
force Plaintiff to prove false the purported events that
happened years ago. Plaintiff also argues that additional
discovery will be needed for him to gather the evidence
necessary to withstand the affirmative defense.
leave to amend is granted, Plaintiff will be prejudiced to an
extent in that he will need to defend against this
affirmative defense. However, being required to defend
against new allegations made in pleadings is not the sort of
prejudice that is undue in the context of amending pleadings.
See Biomet 3i, LLC v. Land, No. 1:16-cv-125, 2017 WL
510945, at *4 (N.D. Ind. Feb. 8, 2017). If such prejudice
were considered undue, then amended pleadings would rarely be
permissible. Further, the fact discovery deadline in this
case is ...