Presumey v. Education et al

Filing 104

ORDER granting 100 defendant's motion to amend. See attached ruling. Signed by Judge Donna F. Martinez on 4/16/2018. (Constantine, A.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ELIZABETH PRESUMEY,
Plaintiff,
v.
TOWN OF GREENWICH
BOARD OF EDUCATION,
Defendant.

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Case No. 3:15cv278(DFM)

RULING ON DEFENDANT'S MOTION TO AMEND ANSWER
The plaintiff, Elisabeth Presumey, brought this employment
discrimination action against the Board of Education for the Town
of Greenwich, Connecticut, alleging that it failed to accommodate
her disability in violation of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12101 et seq. and Connecticut Fair Employment
Practices Act ("CFEPA"), Conn. Gen. Stat. § 46a-51 et seq.

After

trial, a jury returned a verdict in the plaintiff's favor. Pending
before the court is the defendant's motion for leave pursuant to
Fed. R. Civ. P. 15(b) to amend its answer to assert the affirmative
defenses of failure to mitigate and set-off.

(Doc. #100.)

The

motion is granted.
I.

Discussion
The parties agreed that damages and fees would be decided by

the court if the jury found liability in favor of the plaintiff.
(Doc. #77, tr. at 140, 143.)

Following that agreement, after the

jury returned a verdict in favor of the plaintiff, the court

scheduled an evidentiary hearing on damages for May 3, 2018.1
(Doc. #83.)

In anticipation of the hearing, the defendant filed

the instant motion.
"Failure to mitigate damages is an affirmative defense and
therefore must be pleaded."

Travellers Int'l, A.G. v. Trans World

Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir. 1994).

"The general

rule in federal courts is that a failure to plead an affirmative
defense results in a waiver."

Id.

"Federal Rule of Civil Procedure 15 governs amendment of
pleadings.

Rule 15 gives the court discretion to allow amendments

before, during, and after trial. Leave should be 'freely given.'"
United States v. City of New York, 847 F. Supp. 2d 395, 428
(E.D.N.Y. 2012).

Rule 15(b) is "intended to promote the objective

of deciding cases on their merits rather than in terms of the
relative pleading skills of counsel . . . ." 6A C. Wright, et al.,
Federal Practice and Procedure § 1491 at 6 (3rd ed. 2010).
The Second Circuit has stated that a court should
allow leave to amend a pleading unless the non-moving
party can establish prejudice or bad faith. AEP Energy
Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d
699, 725 (2d Cir. 2010) (quoting Block v. First Blood
Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). Motions to
amend are ultimately within the discretion of the
district courts, Foman, 371 U.S. at 182, 83 S.Ct. 227,
and they should be handled with a "strong preference for

1

Although the parties indicated that they were hopeful of
being able to resolve the issues without judicial intervention,
they were unable to do so. (Doc. #77, tr. at 140 "if we prevail on
liability, I think it's [sic] a good chance that defense counsel
and I will be able to -- we'll be able to work it out.")
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resolving disputes on the merits." Williams v. Citigroup
Inc., 659 F.3d 208, 212–13 (2d Cir. 2011) (quoting New
York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)) (internal
quotation marks omitted).
Summit Health, Inc. v. APS Healthcare Bethesda, Inc., 993 F. Supp.
2d 379, 403 (S.D.N.Y. 2014), aff'd sub nom. APEX Employee Wellness
Servs., Inc. v. APS Healthcare Bethesda, Inc., No. 14-3191, 2018 WL
672419 (2d Cir. Feb. 1, 2018).
The defendant argues that the court should grant its motion
because "permitting evidence of failure to mitigate and set-off
will aid the Court in its determination of the proper damages to
award plaintiff so as not to permit Plaintiff to receive a double
recovery . . . ."

(Doc. #100 at 1.)

The plaintiff objects. (Doc.

#102.)
The plaintiff first asserts that the motion should be denied
because the defendant has not "explain[ed] its delay in seeking to
raise the proposed affirmative defenses."

(Doc. #102 at 1-2.)

Notwithstanding the delay, the plaintiff does not suggest that she
will suffer any prejudice whatsoever if the amendment is permitted.
To the contrary, the record reflects that she anticipated these
defenses - the defendant points out that the plaintiff's damages
analysis, which she served on the defendant, recognized that
certain sums were to be deducted from any damages award.

(Doc.

#101, Ex. A.)
Under Fed. R. Civ. P. 15(b), a district court may
consider claims outside those raised in the pleadings so
long as doing so does not cause prejudice. . . . In
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opposing a Rule 15(b) amendment, a party cannot normally
show that it suffered prejudice simply because of a
change in its opponent's legal theory. Instead, a party's
failure to plead an issue it later presented must have
disadvantaged its opponent in presenting its case.
DiMare Homestead, Inc. v. Alphas Co. of New York, 547 F. App'x 68,
70 (2d Cir. 2013)(quotation marks and citations omitted.)

"Mere

delay, however, absent a showing of bad faith or undue prejudice,
does not provide a basis for a district court to deny the right to
amend."

State Teachers Retirement Board v. Fluor Corp., 654 F.2d

843, 856 (2d Cir. 1981).

Therefore, this objection does not

warrant denial of the defendant's motion.
The plaintiff next argues that the motion should be denied
because "the proposed affirmative defenses are insufficient as a
matter of law [in that] neither

. . . states any factual basis for

the legal conclusion pled therein."

(Doc. #102 at 2.)

The

plaintiff goes on to state that "[t]he requirement that sufficient
facts be pled to demonstrate a 'plausible' basis for the claim is
the standard for all pleadings."
is inapposite.

(Doc. #102 at 2.)

This argument

"Although there has been much discussion regarding

the applicability of the plausibility standard set forth in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009), to affirmative defenses, . . . the
majority

of

district

courts

.

.

.

have

determined

that

the

plausibility standard does not apply to affirmative defenses. See
Sibley v. Choice Hotels, Int'l, Inc., 304 F.R.D. 125, 133 (E.D.N.Y.

4

2015) (collecting cases)."

White v. Fein, Such & Crane, LLP, No.

15-CV-438V(SR), 2018 WL 955903, at *1 (W.D.N.Y. Feb. 20, 2018).
See 273 Lee Ave. Tenants Association by Sanchez v. Steinmetz, No.
16CV6942WFKCLP,

2017

WL

6383960,

at

*1

(E.D.N.Y.

Nov.

16,

2017)("The far majority of district courts in this Circuit have
held that the Twombly/Iqbal pleading standard does not apply to
affirmative

defenses,"

and

require

only

that

a

defendant

"'affirmatively state' an affirmative defense.")
For these reasons, the defendant's motion is granted.

The

defendant shall electronically file the amended answer by April 19,
2018.
SO ORDERED at Hartford, Connecticut this 16th day of April,
2018.
___________/s/________________
Donna F. Martinez
United States Magistrate Judge

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