AL-KASSAR v. BUREAU OF PRISONS et al.

Filing 212

ENTRY DENYING MOTION TO AMEND ANSWER - This case has now been pending more than three years and adding a new defense without any justification more than two years after the Answer was filed, would unnecessarily prejudice Plaintiff. Because justice does not require the amendment, the motion for leave to amend answer, dkt. 199 , is DENIED. SEE ORDER. Copy to plaintiff via US Mail. Signed by Judge James Patrick Hanlon on 9/2/2021. (KAA)

Case 2:18-cv-00086-JPH-DLP Document 212 Filed 09/02/21 Page 1 of 4 PageID #: 1599

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
MONZER AL-KASSAR,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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No. 2:18-cv-00086-JPH-DLP

ENTRY DENYING MOTION TO AMEND ANSWER
This action was filed on February 26, 2018. Dkt. 1. Plaintiff filed an amended complaint
August 23, 2018, asserting Bivens and Federal Tort Claim Act (FTCA) claims. Dkt. 45. Defendants
answered the amended complaint on November 9, 2018. Dkt. 62. In that Answer, in response to
the FTCA claim, the United States did not assert the discretionary function exception as an
affirmative defense. Id.
Now, two and a half years later, the United States seeks leave to amend its answer to assert
the affirmative defense of the discretionary function exception. Dkt. 199. Plaintiff opposes the
proposed amendment. Dkt. 200.
After a pleading can no longer be amended as a matter of course, "a party may amend its
pleading only with the opposing party's written consent or the court's leave." Rule 15(a)(2) of the
Fed. R. Civ. Pro. "Although Fed.R.Civ.P. 15(a) provides that leave to amend shall be freely given
when justice so requires, [it] is not to be automatically granted." Johnson v. Cypress Hill, 641 F.3d
867, 871-72 (7th Cir. 2011) (internal quotations omitted). "[A] district court may deny leave for a
variety of reasons, including undue delay and futility." McCoy v. Iberdrola Renewables, Inc., 760
F.3d 674, 684 (7th Cir. 2014). See Crest Hill Land Dev., LLC v. City of Joliet, 396 F.3d 801, 804
(7th Cir. 2005) (affirming denial of motion to amend answer where there was a five month delay
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after the original answer and leave was sought one month after discovery closed).

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"An affirmative defense is waived when it has been knowingly and intelligently
relinquished and forfeited when the defendant has failed to preserve the defense by pleading it."
Burton v. Ghosh, 961 F.3d 960, 965 (7th Cir. 2020). "[T]he court need not allow an amendment
when there is undue delay [or] undue prejudice to the opposing party." Id. at 967. In Burton, the
Seventh Circuit reversed the district court's decision to allow defendants to assert a new affirmative
defense when the "amended complaint did not add a new cause of action, change the theory of
liability, change the parties, assert new claims, or otherwise transform the litigation in any way."
Id. at 968.
The United States does not contend that it could not have reasonably known the affirmative
defense might be available. The defense was not discovered through discovery. There has been no
change in counsel. Moreover, the United States provides no explanation as to why the defense was
not asserted in the original Answer.
"[I]f the defense is untimely and the delay prejudices (i.e., significantly harms) the
plaintiff, it is forfeited and normally may not be considered by the court." Id. at 966. The United
States argues that there was no undue delay because "within days of discovering that the
discretionary function exception defense may apply," authorization from the Department of Justice
was sought to assert the defense. Dkt. 199 at 2. However, the day counsel "discovered" that the
defense might apply is not the basis on which the Court determines undue delay. Rather, the date
the original Answer was filed is the date from which to consider whether there was excessive
delay. Although the case was stayed until the exhaustion defense on the Bivens claims was
resolved, nothing prevented the United States from asserting the discretionary function defense
years earlier. The Court finds that there was undue delay in seeking to assert the discretionary
function exception defense.

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The remaining question is whether Plaintiff would be prejudiced by the late amendment.
By prejudice, the Court means "that the late assertion of the defense causes some unfairness
independent of the potential merits of the defense." Burton, 961 F.3d at 966. Plaintiff argues that
he would be prejudiced due to the need for additional discovery and by the passage of time in
doing so. "Eleventh hour additions of new legal and factual theories inevitably require new rounds
of discovery and additional legal research." Campbell v. Ingersoll Mill. Mach. Co., 893 F.2d 925,
927 (7th Cir. 1990). "This is bound to produce delays that burden not only the parties to the
litigation but also the judicial system and other litigants." Id.
This case has now been pending more than three years and adding a new defense without
any justification more than two years after the Answer was filed, would unnecessarily prejudice
Plaintiff. Because justice does not require the amendment, the motion for leave to amend answer,
dkt. [199], is DENIED.
SO ORDERED.
Date: 9/2/2021

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Distribution:
MONZER AL-KASSAR
61111-054
MARION
U.S. PENITENTIARY
P.O. BOX 1000
MARION, IL 62959
Joana O. Ampofo
ICE MILLER LLP (Indianapolis)
[e-mail]
David J. Carr
ICE MILLER LLP (Indianapolis)
[e-mail]
Lara K. Langeneckert
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Justin R. Olson
UNITED STATES ATTORNEY'S OFFICE (Indianapolis)
[e-mail]
Paul Conrad Sweeney
ICE MILLER LLP (Indianapolis)
[e-mail]

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