barmore v. City Of Rockford et al

Filing 200

WRITTEN Opinion entered by the Honorable P. Michael Mahoney on 11/21/2012: Defendant City of Rockford's motion to amend/correct its answer 181 is denied. The court strikes any remaining briefing schedule on this matter. [For further details see order.] Notices mailed by Judicial staff.(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Philip G. Reinhard

CASE NUMBER

09 C 50236

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

P. Michael Mahoney
11/21/2012

Maryann Barmore vs. City of Rockford, et al.

DOCKET ENTRY TEXT:

Defendant City of Rockford’s motion to amend/correct its answer [181] is denied. The court strikes any
remaining briefing schedule on this matter.

O[ For further details see text below.]

Notices mailed by Judicial staff.

STATEMENT
This matter is before the court on a motion by Defendant City of Rockford (“the City”) for leave to
file an amended Answer with affirmative defenses. On numerous occasions the court has outlined the
extensive procedural history of this case, and it will not do so again here. However, the court will point out
that this case was removed to this court on October 13, 2009, and that it has been heavily litigated. The facts
relevant to the City’s motion are as follows: the City filed an answer on November 30, 2009 for itself and
Defendants North and Poole. Due to conflict between the defending parties, Defendants North and Poole
were allowed to withdraw their answers and each filed an amended answer on October 11, 2010. Both North
and Poole’s amended answers contained affirmative defenses. The City’s answer had no affirmative
defenses. On November 2, 2012–the fact discovery cut-off date–the City presented its motion for leave to
file an amended answer that includes affirmative defenses.
Rule 8(c) of the Federal Rules of Civil Procedure states that a party must state any affirmative defense
in its responsive pleading. Fed. R. Civ. P. 8(c). A failure to state affirmative defenses in a responsive
pleading may result in waiver. However, Rule 15(a) instructs that leave to amend a pleading should be
“freely given when justice so requires.” Fed. R. Civ. P. 15(a). This does not mean that the court must
automatically grant leave to amend. Rather, the court has discretion to weigh the benefits of the proposed
amendment against factors such as undue delay or prejudice against the opposing party. Foman v. Davis, 371
U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962).
The City filed its motion for leave to amend three days before the fact-discovery cut-off date, and
presented it on the day fact discovery was set to close in this case. The fact discovery cut-off has been
extended on nine occasions, and the last extension granted on October 4, 2012 was intended to be final.
While the City’s motion is presumptively untimely, at the November 2, 2012 hearing the court granted the
parties time to brief the motion, and specifically asked the City to address the following questions in its brief:
(1) will the proposed affirmative defenses draw this case out more; (2) have the issues raised in the
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affirmative defenses already been the subject of discovery, and therefore not delay the case at all; (3) why is
the motion filed beyond the time contained in the case management order for the amendment of pleadings;
and (4) why did the City wait until the last possible date to file their motion?
The City has filed its memorandum in support of its motion, which has provided the court with
sufficient information to rule. The first half of the brief in support is devoted to procedural history and a
recitation of the relevant Federal Rules on this matter. The next several pages of the City’s brief contain a
comparison illustrating the overlap between the City’s proposed affirmative defenses and those filed by
North and Poole. There is no question that the parties have had ample opportunity to explore through
discovery information relevant to the affirmative defenses already pled by North and Poole. As the City
points out, most of their proposed affirmative defenses “really are the Co-Defendants’ Affirmative Defenses,
which have already been plead ... .” (Def.’s Memorandum in Support of Motion for Leave, Dkt. No. 199, p.
6.) The court now reiterates the operative questions: (1) why, if the co-Defendants were able to file their
affirmative defenses more than two years ago, did the City wait to this point to attempt to plead these
defenses; (2) how would allowing the amendments be in the interest of justice; and (3) what impact would
allowing the amendment have on the fact discovery cut-off date?
The City’s answers to each question are instructive. As to why the motion came at the close of
discovery, the City states the following: “Since a few affirmative Defenses normally develop during the
course of fact discovery, it has become the practice of the City to wait until the near close of discovery to
raise said defenses.” (Def.’s Mem., Dkt. No. 199, p. 9.) The City provides no justification for ignoring the
Federal Rules of Civil Procedure and the case management order entered by the court in this case. The
Federal Rules do not allow parties, as a matter of practice, to wait until the end of discovery to plead
affirmative defenses.
As to how the amendments would be in the interest of justice, the City explains that other than the
statutory defense of respondeat superior, the proposed defenses “are derivative of the Affirmative Defenses
of Co-Defendants and are not completely necessary to the City’s defense of this litigation.” (Def.’s Mem.,
Dkt. No. 199, p. 9.) Rather, the City contends that it wishes to add the affirmative defenses in order to
“present a unified front among the Defendants and to perfect the record in this case.” (Def.’s Mem., Dkt. No.
199, p. 9.) The City’s justification falls well short of any interest that could outweigh the extreme
untimeliness of the City’s motion.
By the court’s own review, there appear to be two proposed affirmative defenses raised by the City
that were not raised by Defendants North and Poole. First, the City offers a proposed affirmative defense of
respondeat superior, which it says is “merely a statutory codification” (whatever that means). The other
affirmative defense the City seeks to introduce into this case for the first time is the proposed defense of
consent. This proposed affirmative defense attempts to incorporate the facts enumerated in the City’s
proposed first affirmative defense of common-law self defense and defense of others. The facts described in
the first affirmative defense were raised by Defendants North and Poole more than two years ago. However,
the City argues that new information uncovered through the discovery process justifies the amendment.
Specifically, the City describes testimony from the Decedent’s natural father “and others” as indicating that
Plaintiff may have had a mental condition that “could have prompted erratic and/or suicidal behaviors.”
(Def.’s Mem., Dkt. No. 199, p. 7.) The City includes the additional argument that the Decedent’s condition
“at the very least debilitated Plaintiff’s decedent from gainful employment.” (Def.’s Mem., Dkt. No. 199, p.
7.) This proposed affirmative defense would clearly require additional discovery.

Moreover, the consent defense gives no reasonable notice that it would in any way relate to the

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alleged new information regarding the Decedent’s mental condition. The court sees no plausible connection
between a defense that the Decedent consented to assault and battery and the alleged “new” information
relating to the Decedent’s mental condition and ability to be gainfully employed. Notwithstanding, the City
states that the Decedent’s father was deposed on August 16, 2012. The City also references statements made
during the depositions of Anthony Stevens, Maryann Barmore, and Devin Barmore, though no dates or
exhibits are provided as to these statements. The bottom line is even if the supposed new information did
justify an amendment, the City waited, at a minimum, two-and-a-half months before filing the motion for
leave to amend at the fact discovery cut-off. Too long.
For the foregoing reasons, the City’s motion for leave to file an amended answer with affirmative
defenses is denied. The court strikes any remaining briefing schedule on this matter.

Courtroom Deputy
Initials:

09C50236 Maryann Barmore vs. City of Rockford, et al.

BTJ

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