Pinson et al v. 45 Development, LLC et al
MEMORANDUM OPINION AND ORDER. Motions DENIED as set out in the opinion and order. Refer to order regarding refiling motions per court requirements no later than Wednesday, August 28, 2013 and response deadlines thereto. Signed by Honorable P. K. Holmes, III on August 23, 2013. (jas)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
CURTIS PINSON and CRISTI PINSON,
Individually and as Husband and Wife
Case No. 2:12-CV-02160
45 DEVELOPMENT, LLC; CITI TRENDS, INC.;
CITI TRENDS, INC., d/b/a CITITRENDS; and
BRANDRITE SIGN COMPANY, INC.
MEMORANDUM OPINION AND ORDER
Currently before the Court are Plaintiffs Curtis and Christy Pinson’s (“the Pinsons”) motion
for judgment on the pleadings (Doc. 162) and Defendant Citi Trends, Inc.’s (“Citi Trends”) response
(Doc. 165), the Pinsons’ motion to amend the complaint (Doc. 186), and the Pinsons’ eight separate
motions for partial summary judgment (Docs. 181, 187, 202, 208, 205, 217, 228, and 231).
Judgment on the Pleadings
The Pinsons move for judgment on the pleadings against Citi Trends pursuant to Federal
Rule of Procedure 12(c). In their motion, the Pinsons request entry of judgment in their favor
regarding Citi Trends’s “use of the affirmative defense that either Curtis Pinson or his employer,
Anchor Sign Company, were independent contractors because Citi Trends has not affirmatively
plead [sic] in any of its answers to the complaint(s) that it wished to avail itself to [sic] that defense.”
(Doc. 162, p. 2).
The Pinsons are essentially asking the Court either to strike Citi Trends’ independentcontractor defense to the extent the defense was properly asserted, or to find that Citi Trends failed
to specifically assert this defense in its answer and now should be precluded from asserting the
defense at trial. Either way, the Pinsons’ requests are not properly addressed through a Rule 12(c)
motion for judgment on the pleadings.
“Judgment on the pleadings is appropriate where no material issue of fact remains to be
resolved and the movant is entitled to judgment as a matter of law.” Faibisch v. Univ. of Minn., 304
F.3d 797, 803 (8th Cir. 2002). The “judgment” sought in the Pinsons’ motion addresses the
relevance and applicability of an affirmative defense and will not resolve any of the Pinsons’ legal
claims. Accordingly, the motion is inappropriate and will be DENIED on this basis.
Additionally and alternatively, even if the Pinsons’ motion had been framed properly as a
motion to strike or to preclude Citi Trends’s use of the independent-contractor defense at trial, this
motion would also be denied. The Pinsons argue that Citi Trends should not be permitted to assert
the independent-contractor defense at trial because Citi Trends failed to specifically plead this
defense in its answer to the amended complaint. “Generally, failure to plead an affirmative defense
results in a waiver of that defense.” First Union Nat. Bank v. Pictet Overseas Trust Corp., Ltd., 477
F.3d 616, 622 (8th Cir. 2007). According to the Supreme Court, the pleading requirements of Rule
8(c) requires a party asserting an affirmative defense to provide notice of that defense to the opposing
party in order to provide that party a sufficient opportunity to rebut the defense. See Blonder-Tongue
Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971). However, the Eighth Circuit has
“eschewed a literal interpretation of the Rule that places form over substance, and instead ha[s] held
that when an affirmative defense is raised in the trial court in a manner that does not result in unfair
surprise . . . technical failure to comply with Rule 8(c) is not fatal.” Id. (internal quotations and
Permitting Citi Trends to assert this affirmative defense at trial will not, as the Pinsons
contend, result in unfair surprise or prejudice, as the Pinsons have already anticipated this defense
in their trial preparations and have thoroughly considered its merits, as evidenced in the Pinsons’
motion for judgment on the pleadings, discussed above, and in their sixth motion for partial summary
judgment (Doc. 217), which contains a detailed analysis of the merits of this defense. Therefore, the
Court will not strike or preclude the applicability of this defense at this time.
Motion to Amend Complaint
The Pinsons’ motion to amend the complaint for a fifth time (Doc. 186) was filed on August
18, 2013.1 The final scheduling order in this case provides that “[l]eave to add parties or amend
pleadings must be sought no later than May 10, 2013.” (Doc. 54). Though the Pinsons’ motion to
amend was filed three months after the deadline clearly set forth in the Court’s scheduling order, the
motion failed to explain why it was filed out of time.
Federal Rule of Civil Procedure 15(a)(2) states that leave to amend should be freely given
by the court when justice so requires. The Pinsons contend that amendment is needed in order to
“focus” the complaint, “revise it to reflect newly discovered facts,” and “narrow down and eliminate
certain issues.” None of these reasons are sufficient to justify amendment of the complaint at this
late date, now that discovery has closed and the Court’s deadline for amendment has passed. The
motion to amend is therefore DENIED.
Multiple Motions for Partial Summary Judgment
The Pinsons have filed eight separate motions for partial summary judgment. There can be
no other explanation for filing these motions separately, one after the other over a period of ten days,
In total, the Pinsons have amended their complaint four times during the course of this
litigation, twice as a matter of right and twice with leave of the Court.
than to cause intentional burden, prejudice, and vexation to the responding Defendants. All the
arguments that the Pinsons have made in these eight separate motions could have been asserted in
a single motion, which would have required a single response by each Defendant. Instead, the
motions now require separate responses, varying response deadlines, and the consumption of the
Court’s valuable resources in tracking dozens of separate filings. This “motion-splitting” by the
Pinsons does not technically violate Local Rules 7.2 or 56.1, which require each motion and
accompanying brief to be “short and concise,” but the Court does find that the Pinsons’ tactics
violate the spirit of the Local Rules by presenting separate motions—along with separate, lengthy
briefs and multiple attachments—when all of these issues could and should have been brought in the
form of a single motion that was properly “short and concise.”
Federal Rule of Civil Procedure 56(a) states that a party may file a motion for summary
judgment or partial summary judgment prior to trial to resolve claims or defenses for which no
genuine dispute of material fact exists. The Pinsons’ eight motions for partial summary judgment
each address a discrete issue of law that they claim the Court may resolve prior to trial, due to the
alleged lack of undisputed facts associated with each issue. Without resolving any of these motions
on the merits, the Court observes that they concern the following subjects: (1) the first motion for
partial summary judgment (Doc. 181) asks the Court to determine as a matter of law that Mr. Pinson
was an invitee of Defendant 45 Development, LLC; (2) the second motion (187) asks the Court to
find that Defendants were subject to OSHA regulations and had the duty to comply with these
regulations at the time of Mr. Pinson’s injury; (3) the third motion (Doc. 202) asks the Court to deny
Defendants the use of the assumption-of-the-risk defense; (4) the fourth motion (Doc. 208) asks that
the Court find as a matter of law that Mr. Pinson’s injuries were foreseeable; (5) the fifth motion
(Doc. 205) asks the Court to deny Defendants the use of the comparative-fault defense; (6) the sixth
motion (Doc. 217) asks the Court to find that Mr. Pinson was not an independent contractor; (7) the
seventh motion (Doc. 228) asks the Court to find that Mr. Pinson was not a trespasser to the property
in which he was injured; (8) and the eighth motion (Doc. 231) seeks to establish that Defendants still
owed a duty of care to Mr. Pinson even if the danger he was exposed to was “open and obvious.”
The Court finds that the Pinsons’ filing of eight separate motions for partial summary
judgment creates an unnecessary and onerous burden for Defendants in responding and for the Court
in managing this litigation and resolving these motions prior to trial. The Court is within its
discretion to prevent potential abuse by litigants “by establishing summary procedures to weed out
frivolous or simply repetitive motions.” Knox v. Southwest Airlines, 124 F.3d 1103, 1106 (9th Cir.
1997). Therefore, all motions are DENIED without prejudice to the Pinsons’ ability to refile them
First, the Pinsons are directed to carefully consider the arguments made in these eight
motions for partial summary judgment and consolidate them into a single motion for partial summary
judgment containing all claims and issues that may be resolved as a matter of law and to which no
genuine dispute of material fact exists.
Next, a single brief in support of this consolidated motion and a single, comprehensive
statement of undisputed facts must be filed in compliance with the Local Rules. Lest the Pinsons
be tempted to cut and paste their eight original motions into one lengthy motion or their eight
supporting briefs into one, massive, hundred-page brief, the Court cautions that Local Rule 7.2
requires that a brief accompanying a motion consist “of a concise statement of relevant facts and
applicable law,” and Local Rule 56.1 requires that a statement of undisputed material facts annexed
to a motion for summary judgment be “short and concise.” Accordingly, any consolidated motion
for partial summary judgment, brief in support, and accompanying statement of facts that are filed
in this Court as per this order must comply with the Local Rules or risk summary dismissal.
Finally, if the Pinsons wish to file the consolidated motion herein described, such motion
must be filed no later than Wednesday, August 28, 2013, in order to be considered by the Court.
Any Defendant wishing to file a response to this consolidated motion for partial summary judgment
must do so no later than Monday, September 9, 2013. The Pinsons will be permitted to file a reply
to any response that is submitted but must do so no later than Monday, September 16, 2013.
IT IS ORDERED that Plaintiffs’ motion for judgment on the pleadings (Doc. 162) and
motion to amend the complaint (Doc. 186) are DENIED.
IT IS FURTHER ORDERED that Plaintiffs’ eight separate motions for partial summary
judgment (Docs. 181, 187, 202, 208, 205, 217, 228, and 231) are DENIED without prejudice to the
Pinsons’ ability to refile them in compliance with the Local Rules and in accordance with this order.
The Court directs that the eight motions for partial summary judgment be consolidated into a single
motion for partial summary judgment, along with a single brief in support and a single statement of
undisputed facts, all of which must be filed with the Court no later than Wednesday, August 28,
2013. Any Defendant wishing to file a response to this consolidated motion for partial summary
judgment, if and when such is filed, must do so no later than Monday, September 9, 2013.
Plaintiffs may file a reply to any response that is submitted no later than Monday, September 16,
IT IS SO ORDERED this 23rd day of August, 2013.
/s/P. K. Holmes, III
P.K. HOLMES, III
CHIEF U. S. DISTRICT JUDGE
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