Hicks v. Lake Painting, Inc.

Filing 20

ORDER Granting 15 Motion to Amend Affirmative Defenses. Signed by District Judge Thomas L. Ludington. (Sian, M)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DASHAWN HICKS,
Plaintiff,
v.

Case No. 16-cv-10213
Honorable Thomas L. Ludington

LAKE PAINTING, INC.,
Defendants.
_______________________________________/
ORDER GRANTING MOTION TO AMEND AFFIRMATIVE DEFENSES
On January 21, 2016, Plaintiff DaShawn Hicks filed this action against Defendant Lake
Painting, Inc (“Lake Painting”). ECF No. 1. In the Complaint, Hicks alleges that he was
subjected to racial harassment and retaliation while working for Lake Painting. He asserts three
counts pursuant to 42 U.S.C. § 1981: racial harassment, retaliation, and constructive discharge.
Id. On February 24, 2016, Lake Painting filed an answer to Hicks’s Complaint. ECF No. 8. In
that answer, Lake Painting asserted the following affirmative defense: “Defendant took prompt
and appropriate remedial action in response to Plaintiff’s January 30, 2014, complaint of racial
harassment.” Id. at 9. On April 12, 2016, the Court issued a scheduling order. ECF No. 14.
Among other things, that scheduling order provided that discovery was due by October 12, 2016,
set the dispositive motion cut-off for November 14, 2016, and scheduled a jury trial for March
14, 2017. Id. On September 19, 2016, Lake Painting filed a motion to amend its affirmatives
defenses. ECF No. 15. Specifically, Lake Painting wants to assert the following amended
defense: “Defendant exercised reasonable care to prevent and correct harassment and Plaintiff
unreasonably failed to avail himself of the corrective and preventative measures or to otherwise
avoid harm.” Id. at 4. Pursuant to an agreement reached at the October 11, 2016, settlement

conference, the dispositive motion deadline was extended to November 28, 2016, and a
settlement conference was scheduled for November 1, 2016, with Magistrate Judge Patricia T.
Morris. ECF No. 19. For the following reasons, Lake Painting’s motion to amend its affirmative
defense will be granted.
I. 
Pursuant to the Federal Rules of Civil Procedure, leave to amend shall be given freely
“when justice so requires.” Fed. R. Civ. P. 15(a)(2). “If the underlying facts or circumstances
relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an
opportunity to test his claim on the merits.” Foman v. Davis, 371 U.S. 178, 182 (1962).
However, a party seeking to amend an answer “must act with due diligence if it intends to take
advantage of the Rule’s liberality.” United States v. Midwest Suspension and Brake, 49 F.3d
1197, 1202 (6th Cir. 1995). A court may deny leave to amend when a party unnecessarily
delayed in seeking amendment, thereby, causing prejudice to the other party or unduly delaying
the litigation. Phelps v. McClellan, 30 F.3d 658, 662-63 (6th Cir. 1994) (citation omitted). “In
determining what constitutes prejudice, the court considers whether the assertion of the new
claim or defense would: require the opponent to expend significant additional resources to
conduct discovery and prepare for trial; significantly delay the resolution of the dispute; or
prevent the plaintiff from bringing a timely action in another jurisdiction.” Id. “[T]he fact that
one party has spent time and money preparing for trial will usually not be deemed prejudice
sufficient to warrant a deviation from the rule broadly allowing amendment to pleadings.”
Monahan v. New York City Dep’t of Corr., 214 F.3d 275, 284 (2d Cir. 2000). “‘Prejudice’ in the
context of Rule 15 means more than the inconvenience of having to respond to a claim or

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defense.” Mills v. United Producers, Inc., No. 11-13148-BC, 2012 WL 4692341, at *3 (E.D.
Mich. Oct. 3, 2012).
II.
In his motion seeking leave to amend affirmative defenses, Lake Painting asserts that
Hicks had adequate advance notice of the defense because Lake Painting had already pleaded
that it had addressed Hick’s report of harassment. Lake Painting also argues that, because Lake
Painting had produced the new policy in discovery and Hicks had questioned witnesses about
that policy, there was no prejudice. Hicks counters by arguing that Lake Painting provided no
explanation for why this defense was not asserted earlier, especially because Lake Painting had
all the information necessary to make the defense at the time is answered Hicks’s complaint.
Hicks also argues that the amendment would prejudice him because Hicks would have to depose
Lake Painting employees about the policy for a second time. Hicks finally argues that the
testimony of several witnesses clearly forecloses the defense Lake Painting is attempting to
assert because those witnesses admitted that the policy did not specifically mention racial slurs or
epithets. In reply, Lake Painting asserts that Hicks already deposed witnesses about the policy
which is the subject of the proposed defense and thus questions whether additional discovery is
necessary. Despite that, Lake Painting has expressed a willingness to allow Hicks to re-depose
witnesses on this issue. Lake Painting further asserts that the proposed amendment is not futile
because the policy need not have directly mentioned racial slurs or epithets in order to be a
sufficiently corrective and preventative measure.
The Court is persuaded that justice requires that Lake Painting be allowed to amend its
affirmative defense. To begin with, the amended affirmative defense is not substantially different
from the original defense. Before, Lake Painting was arguing that it had taken remedial action to

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respond to the complaint of racial harassment. Now, Lake Painting seeks to explain that it also
took reasonable care to prevent and correct harassment. Although the legal authority Lake
Painting will rely on for the amended defense is distinct, the factual predicate is similar. Hicks
was already aware of the new policy promulgated by Lake Painting in response to Hicks’s
complaints. For that reason, Hicks cannot credibly argue that it has been ambushed by the
proposed amendment. Likewise, minimal additional discovery will be necessary.
Lake Painting has not explained why this defense was not brought sooner. However,
“delay alone [is] not sufficient reason to deny” a motion to amend. Wade v. Knoxville Utilities
Bd., 259 F.3d 452, 459 (6th Cir. 2001). Rather, and as explained above, the crucial inquiry is
whether the amendment will unduly delay the litigation or prejudice the plaintiff. Neither will
occur here. The deadline to file dispositive motions has already been moved back by several
weeks to accommodate a settlement conference between the parties. Further, the proposed
defense is similar enough to the previous defense that any additional depositions that are
necessary will be cabined in scope and time.1 Thus, there is reason to believe that Hicks can
conduct any additional discovery needed in a timely manner. Hicks might suffer inconvenience
from the amendment, but not prejudice. See Mills, 2012 WL 4692341, at *4 (allowing
amendment event though sought shortly before trial was scheduled to begin). Because there will
be no need to expend significant resources in discovery nor will there be any undue delay, Hicks
will not be prejudiced by the amendment.

1

Lake Painting has represented that it will allow Hicks to re-depose witnesses, and the Court expects Lake Painting
to fully cooperate with Hicks concerning any additional discovery that is necessary. Accordingly, the fact that
discovery has already closed does not counsel against allowing the amendment. See Mills, 2012 WL 4692341 at *4
(“‘Permitting a proposed amendment also may be prejudicial if discovery already has been completed, but this
concern may be alleviated if the new claim arises from a similar set of operative facts and a similar time as the
existing claims.’” (quoting Bleiler v. Cristwood Contracting Co., 868 F.Supp. 461, 463 (D.Conn.1994)  , rev’d in
part on other grounds, 72 F.3d 13 (2d Cir.1995) (internal citation omitted))).  

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Further, Hicks’s argument that the amendment would be futile is unpersuasive. A genuine
question of fact exists as to whether Lake Painting’s new policy constituted reasonable care to
prevent and correct racial harassment even though it did not specifically mention racial slurs or
epithets. Lake Painting need not demonstrate a likelihood of success on this defense at this
juncture. Because the testimony given by witnesses in the depositions and the text of Lake
Painting’s employee manual does not conclusively foreclose the defense, it would be
inappropriate to deny the motion to amend on futility grounds.
III.
Accordingly, it is ORDERED that Defendant Lake Painting’s motion to amend
affirmative defenses, ECF No. 15, is GRANTED.

Dated: October 17, 2016

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on October 17, 2016.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager

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