Johnson v. Conway et al

Filing 99

ORDER granting Defendants Corizon Health, Inc. and Susan Fajardo's 69 Motion to Amend Answer to Assert Statute of Limitations Defense. Signed by Judge Richard W. Story on 2/18/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
VANCE R. JOHNSON,

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Plaintiff,
v.
SHERIFF R.L. “BUTCH”
CONWAY, CHRISTOPHER
REVELS (SO #692), ROBERT
BAILEY (SO # 893), TOCHI
DAVIS (SO # 1145), CORIZON
HEALTH, INC., MAVIS
CAMPBELL and SUSAN
FAJARDO,
Defendants.

CIVIL ACTION NO.
1:13-CV-00524-RWS

ORDER
This case comes before the Court on Motion to Amend Answer of
Defendants Corizon Health, Inc. and Susan Fajardo to Assert Statute of
Limitations Defense (“Defs.’ Mot. to Am.”) [69]. After reviewing the record,
the Court enters the following Order.
Background
The facts of this case are fully set forth in the Court’s September 30,
2013 Order [39] granting Plaintiff’s Motion for Leave to Amend and denying in

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part and granting in part the Medical Defendants’ Motion to Dismiss [28]. The
Medical Defendants, Corizon Health, Inc. and Susan Fajardo, now move to
amend their Answer [45] to Plaintiff’s Amended Complaint to assert a statute of
limitations defense. The Court now considers this Motion.
Discussion
The Federal Rules of Civil Procedure provide that leave to amend a
pleading should be given “freely” “when justice so requires.” FED. R. CIV. P.
15(a)(2). In deciding whether to grant leave to amend, the Court should
consider factors such as whether there has been “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [and] futility of the amendment. . . .”
Foman v. Davis, 371 U.S. 178, 182 (1962). The decision of whether to give
leave to amend is within the discretion of the trial court. Saewitz v. Lexington
Ins. Co., 133 F. App’x 695, 699 (11th Cir. 2005).
In this case, the Court finds the Foman factors to weigh in favor of
permitting Defendants to amend their Answer to assert the statute of limitations
defense. First, the Court does not find such undue delay as to preclude
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Defendants from the opportunity to amend their Answer. Under the law in this
Circuit, a defendant may raise the defense of statute of limitations as late as in
its pretrial order. Hargett v. Valley Fed. Sav. Bank, 60 F.3d 754, 763 (11th Cir.
1995). Nor is there any evidence of bad faith or dilatory motive. Moreover,
Plaintiff will not be prejudiced by allowing the Medical Defendants to amend
their Answer. As the Medical Defendants argue: “co-Defendants have raised
the statute of limitations affirmative defense, and, in the Nineteenth Defense in
their original Answer, the Medical Defendants specifically noted that they
‘adopt and incorporate by reference herein any and all applicable affirmative
defenses raised by any of the other defendants to this action.’” (Br. in Supp. of
Defs.’ Mot. to Am., Dkt. [69-1] at 5 (citing Dkt. [24]-[27], [43], [45].) The
Court agrees that Plaintiff has been put on notice that a statute of limitations
defense is at issue in this case, and accordingly will not be prejudiced by
Defendants’ amendment. Finally, the proposed Amendment does not appear to
be futile. The Court notes that nothing in this Order should be interpreted as a
dispositive ruling on the merits of the amendment. Based on the foregoing, the
Court finds Defendants’ motion is due to be GRANTED.

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Conclusion
In accordance with the foregoing, Motion to Amend Answer of
Defendants Corizon Health, Inc. and Susan Fajardo to Assert Statute of
Limitations Defense [69] is GRANTED.

SO ORDERED, this 18th

day of February, 2015.

________________________________
RICHARD W. STORY
United States District Judge

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