BROWN v. PRESSTIME GRAPHICS, INC. et al

Filing 115

ENTRY REGARDING ISSUE OF WILLFULNESS: In light of this ruling, those portions of the Defendants' motion in limine that were taken under advisement by the Court (see Dkt. No. 112 ) are now GRANTED ***SEE ENTRY FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 10/17/2016.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DANIEL L. BROWN,
Plaintiff,
vs.
PRESSTIME GRAPHICS, INC., et al.,
Defendants.

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ENTRY REGARDING ISSUE OF WILLFULNESS
At the final pretrial conference in this case, the Court took under advisement the issue of
whether the Defendants have forfeited the right to assert a lack of willfulness for Fair Labor
Standards Act (“FLSA”) purposes because they failed to assert a statute of limitations
affirmative defense. The Court has now considered the issue and, being duly advised, rules as
follows.
The Plaintiff filed his Complaint on December 11, 2013, alleging that while he was
employed by the Defendants from June 2010 through October 2013 the Defendants failed to pay
him overtime as required by the FLSA. Although the statute of limitations applicable to the
FLSA is either two years or three years, depending on whether the violation is willful, and the
Plaintiff’s allegations clearly extended back more than two—indeed, more than three—years
prior to the date of the Complaint, the Defendants did not plead the statute of limitations defense
in their Answers to the Complaint; in fact, they did not plead any affirmative defenses. Pursuant
to Federal Rule of Civil Procedure 8(c), the statute of limitations is an affirmative defense that
must be pled.

It has long been recognized that a defendant’s failure to plead the statute of
limitations as an affirmative defense in his or her answer to the complaint
constitutes a waiver of that defense. Venters [v. City of Delphi], 123 F.3d [956],
967–68 [7th Cir. 1997] (citations omitted) (statute of limitations defense waived
where not pleaded in answer and raised for first time in response to motion for
summary judgment without motion to amend answer).
United States v. Adent, 821 F.3d 911, 914 (7th Cir. 2016). In other words, if a defendant
believes that some or all of a plaintiff’s claim is barred by the applicable statute of limitations,
the defendant must so assert in its answer. If the defendant fails to do so, the statute of
limitations will not act as a bar to the plaintiff’s claim; if, for example, the plaintiff pled and
proved that he had been denied overtime pay that was required by the FLSA for a period of ten
years, he could recover for all ten years, even if the applicable statute of limitations, if pled,
would have limited him to two or three years.
It is true that a “district court has the discretion to allow an answer to be amended to
assert an affirmative defense not raised initially.” Williams v. Lampe, 399 F.3d 867, 871 (7th
Cir. 2005) (citing Fed.R.Civ.P. 15(a) and Jackson v. Rockford Housing Auth. 213 F.3d 389, 39293 (7th Cir. 2000) (“Amendment is allowed absent undue surprise or prejudice to the
plaintiff.”)). However, the Court declines to do so under the circumstances of this case. The
Defendants in this case did not merely fail to raise the statute of limitations defense in their
answers; they also affirmatively stated in their trial brief that “[n]o affirmative defenses are
raised.” Dkt. No. 99 at 1. And even if the Defendants viewed the issue not as a statute of
limitations defense, but rather as the issue of whether they acted willfully—a question on which
the Plaintiff would have the burden of proof1—the Plaintiff squarely raised the issue in his first
motion in limine by arguing the following:

1

Lack of willfulness is not an affirmative defense under the FLSA; rather, the Plaintiff
has the burden of proving willfulness. Thus, the Defendants were not required specifically to
2

Defendants should be precluded from making any statement or offering any
evidence or argument that a shortened two-year statute of limitations is applicable
to this case. The FLSA provides for a two-year statute of limitations that can be
extended to three-years [sic] for a violation that is willfull [sic] or made with
reckless disregard for the law. The applicable statute of limitations is an
affirmative defense that must be raised by Defendants, or it is waived. Here,
Defendants did not raise the statute of limitations as an affirmative defense in this
matter. As a result, Defendants have waived this issue. See Braddock v. Madison
County, IN, 34 F. Supp.2d 1098, 1112 (S.D. Ind. 1998). “The statute of limitations
defense remains an affirmative defense that must be pleaded in an answer, and the
defendant can waive the defense by failing to plead it.” Id.
Dkt. No. 106 at 1-2. Had the Defendants filed a timely response to the motion in limine—which,
under the case management plan, was due on September 30, 2016—and either sought to amend
their answers to assert the statute of limitations defense or put forth a reasonable argument that
they were not required to plead the statute of limitations defense in order to assert a lack of
willfulness (and, thus, the applicability of the two-year statute of limitations), the Court might
have been inclined to excuse the waiver, assuming the Plaintiff could not show prejudice. They
did not do so, however; they filed no response to the Plaintiffs’ motion in limine. Accordingly,
with regard to the Plaintiff’s FLSA claim, the two-year statute of limitations2 will not operate as
a bar in this case, and the jury will not be asked to determine whether any FLSA violation it finds
was willful.

raise lack of willfulness in their answers, but they were required to plead that the Plaintiff’s
claims were barred, in part, by the applicable statute of limitations. In the absence of the
assertion of that affirmative defense, it becomes irrelevant whether the Defendants acted
willfully, as the Plaintiff’s claims are not time barred in either case.
2
In this case, the Plaintiff affirmatively states in his trial brief that “[f]or purposes of his
FLSA claim, the relevant time period is the three-year period preceding the filing of this lawsuit
through the termination of his employment with Defendants; i.e. December 11, 2010 through
October 22, 2013,” and that he seeks unpaid non-overtime wages under Indiana law for five
hours per week for the weeks of December 11, 2011, through July 21, 2012. Dkt. No. 105 at 3.
Accordingly, the Plaintiff has waived his right to disregard the applicable statutes of limitation in
their entirety, and he thus will not be permitted to ask the jury to award overtime pay for hours
worked prior to December 11, 2010, or wages for hours worked prior to December 11, 2011.
3

In light of this ruling, those portions of the Defendants’ motion in limine that were taken
under advisement by the Court (see Dkt. No. 112) are now GRANTED.
SO ORDERED: 10/17/16

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

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