Johnson v. Kilpatrick et al

Filing 32

MEMORANDUM OF OPINION. Signed by Judge L Scott Coogler on 4/19/2018. (PSM)

FILED
2018 Apr-19 PM 03:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JASPER DIVISION
JEFFREY JOHNSON, SR.,
Plaintiff,
v.
KENNETH B. KILPATRICK, ET
AL.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)

6:17-cv-00285-LSC

MEMORANDUM OF OPINION
Before the Court is
motion for leave to amend answer, filed February, 27, 2018. (Doc. 26.) Plaintiff
timely filed a response (doc. 28) to
March 8, 2018 Order to show cause as to why the motion should not be
DENIED.
I.

BACKGROUND
Plaintiff filed suit filed on February 22, 2017, claiming damages for

negligence and wantonness he sustained from of a collision that occurred between
(Doc. 1.)
On May 4, 2017, Kilpatrick filed his answer in which he denied liability for

welve (12) defenses,1 none of which would have

P

placed Johnson on notice that immunity would be asserted as defense. (Doc. 7.)
On June 13, 2017, the Court entered a Scheduling Order setting the deadline for
causes of action and parties to be added by plaintiff as September 26, 2017, and
providing
26, 2017]. (Doc. 12.) Neither party requested an enlargement of time for the period
of filing motions to amend the pleadings in advance of the ordered deadlines. On
December 13, 2017, Kilpatrick filed a motion for summary judgment
based primarily

which he
Ala. Code

§6-5-336 (1975).2 (Doc. 18.) On February 9, 2018 Plaintiff filed a motion for

1

Kilpatrick asserted failure to state a claim upon which relief can be granted, contributory
negligence, assumption of the risk, last clear chance, no basis for punitive damages, statutory cap,
due process clauses under the 8th and 14th Amendments.
2

Ala

pertinent part:
(c) For the purposes of this section, the meaning of the
terms specified shall be as follows:
(3) Nonprofit organization. Any organization which
is exempt from taxation pursuant to Section 501(c)
of the Internal Revenue Code, 26 U.S.C. Section
501(c), as amended;
(4) Volunteer. A person performing services for a
nonprofit organization, a nonprofit corporation, a

Page 2 of 8

summary judgment of his own. (Doc. 24.) Briefing for the summary judgment
motions is already well underway and trial is set for September 17, 2018.
II.

STANDARD
District courts are required to enter scheduling orders which place
, amend the pleadings, complete

discovery and file motions
unless it is

The order is controlling
A schedule may be modified only for
Fed. R. Civ. P. 16(b)(4).

hospital, or a governmental entity without
compensation, other than reimbursement for actual
expenses incurred. The term includes a volunteer
serving as a director, officer, trustee, or direct
service volunteer.
(d) Any volunteer shall be immune from civil liability in any action on
the basis of any act or omission of a volunteer resulting in damage or
injury if:
(1) The volunteer was acting in good faith and
within the scope of such volunteer's official
functions and duties for a nonprofit organization, a
nonprofit corporation, hospital, or a governmental
entity; and
(2) The damage or injury was not caused by willful
or wanton misconduct by such volunteer.
§ 6-5-336 Code of Alabama, 1975.

Page 3 of 8

the diligence of the parties seeking the

Sosa v. Airprint Sys., Inc., 133

F.3d 1417, 1418 (11th Cir. 1998) (per curiam) (citing Fed. R. Civ. P. 16 advisory
comm. note).

not diligent, the [good cause]

Id.

(quoting Johnson v. Mammoth Recreations, Inc. 975 F.2d 604, 609 (9th Cir. 1992)).
As such,

arelessness is not compatible with a finding of diligence and offers no
Johnson, 975 F.2d at 609 (citations omitted). The

party seeking relief from the scheduling order bears the burden of establishing good
cause and diligence. See, e.g.,

Race Tires Am., Inc. v. Hoosier Racing Tire

Corp., 614 F.3d 57, 84 (3rd Cir. 2010)

III.

Rule 16(b)(4) focuses on the moving

DISCUSSION

Immunity is an affirmative defense that a defendant must plead and prove
under both Federal and Alabama law. See Gomez v. Toledo, 446 U.S. 635, 639-40
(1980) (good faith and qualified immunity must be pled by defendant); see also Fed.
responding to a pleading, a party must affirmatively state any
; see Lightfoot v. Floyd, 667 So. 2d 56, 64 (Ala.
1995); Phillips v. Thomas, 555 So. 2d 81, 86 (Ala. 1989); see also Rule 8, Ala. R. Civ.
P.

Page 4 of 8

Consequently

ailure to plead [] immunity may result in a waiver of the

defense. Moore v. Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991); See Ex Parte Dixon
Mills Volunteer Fire Dept., Inc., 181 So. 3d 325, 330 (Ala. 2015) (immunity provided
under the Volunteer Service Act is an affirmative defense).
The Eleventh Circuit has noted that [the] Supreme Court has held that the
purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense
and a chance to rebut it. Grant v. Preferred Research, Inc., 885 F.2d 795, 797 (11th
Cir. 1989) (holding that a plaintiff was not prejudiced
raise the statute of limitations as an affirmative defense when it raised the defense
in a motion for summary judgment a month before trial and plaintiff did not assert
any prejudice from the lateness of the pleading); See also Tounzen v. S. United Fire
Ins. Co., 701 So. 2d 1148 (Ala. Civ. App. 1997) (trial court did not abuse discretion
in refusing to allow defendant to amend answer to include affirmative defense).
Alabama Rule of Civil Procedure 8(c) prov

be

raised in a responsive pleading; generally, when a party has failed to plead an
affirmative defense, it is deemed to have been w
Id. (citing Harrell v. Pet, Inc., Bakery Div., 664 So. 2d 204 (Ala. Civ. App. 1994))).

Page 5 of 8

In his motion to amend,
adduced by the deposition testimony of Defendant, Kenneth B. Kilpatrick, on
October 24, 2017, and the affidavit of Rick Moody of December 11, 2017,
establishes that Kilpatrick is immune from liability under The Alabama Volunteer
Services Act

(Doc. 26 at 2.)

and asserts that

, which]

should freely permit an amendment when doing so will aid in the presenting the
merits of the case

(Id.) However, the Federal Rules of Civil Procedure are clear

that litigation deadlines fixed via a
good cause and with the judge

R. Civ. P. 16(b)(4). Additionally,

Kilpatrick states only a portion of Rule 15(b)(1) in his motion. The portion of the
. . . and the objecting party fails to satisfy the court
that the e
court may grant a continuance to enable the
Fed. R. Civ. P. 15(b). As explained below, Plaintiff has satisfied the Court that it
would be severely prejudiced should the motion to amend be granted.
Plaintiff argues that Kilpatrick has waived immunity by failing to assert the
affirmative defense in his initial pleading or within a reasonable time thereafter.

Page 6 of 8

Plaintiff argues that the immunity statute upon which Kilpatrick would rely
provides in relevant part,
In any suit against a nonprofit organization, nonprofit corporation, or a
hospital for civil damages based upon the negligent act or omission of a
volunteer, proof of such act or omission shall be sufficient to establish
the responsibility of the organization therefor under the doctrine of
granted to the
volunteer with respect to any act or omission included under
subsection (d).
Ala. Code §6-5-336(e).
Plaintiff asserts that it would be prejudiced if Kilpatrick were able to amend
his answer a full four months after the scheduled deadline for amending pleadings
for several reasons. First,
and has lost the opportunity to join the Houston Volunteer Fire Department [
] as the entity responsible for the negligence of its volunteer
at 4.) Next, Plaintiff contends that even if the Court, in the
alternative, were to allow him to amend his complaint, the statute of limitations has
now run on any negligence claim he might have been able to assert against the
Department. Finally, Plaintiff points out that discovery is complete. Unaware of
made no inquiry
into the facts relevant to the defense. Additionally, the March 26, 2018 discovery

Page 7 of 8

cutoff has already passed and re-conducting of discovery would be costly

both

monetarily and time-wise. Plaintiff avers that the prejudice he would suffer could
have been avoided had Kilpatrick exercised due diligence. The Court agrees.
IV.

CONCLUSION

Kilpatrick has waived his defense of immunity under the Alabama Volunteer
Service Act for failing to raise it in his answer as an affirmative defense or within a
reasonable time thereafter.
due to be DENIED. A separate Order consistent with this Opinion will be entered
contemporaneously herewith.
DONE and ORDERED on April 19, 2018.

_____________________________
L. Scott Coogler
United States District Judge
190685

Page 8 of 8