Jones-El v. Godert et al
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Defendants' Motion for Leave to File First Amended Answer to Plaintiff's Second Amended Complaint (ECF No. 119 ) is DENIED. Signed by Magistrate Judge John M. Bodenhausen on 02/18/2021. (ANP)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EUGENE K. JONES-EL,
CHANTAY GODERT, et al., 1
Case No. 2:18 CV 65 JMB
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion for Leave to File First Amended
Answer to Plaintiff's Second Amended Complaint. (ECF No. 119) Plaintiff Eugene Jones-El
("Plaintiff") filed a response in Opposition, and Defendants filed a Reply thereto. (ECF Nos. 122
and 124) All matters are pending before the undersigned United States Magistrate Judge with the
consent of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, Defendants'
motion will be denied.
On December 19, 2018, Plaintiff filed a "Supplemental, or in the Alternative, Second
Amended 1983 Civil Complaint" ("Second Amended Complaint") after receiving leave to file by
the Court. (ECF Nos. 21-23) Plaintiff filed this action under 42 U.S.C. § 1983 against officials
and staff members at Northeast Correctional Center ("NCC"), alleging that his constitutional rights
were violated from November 7, 2017, to June 30, 2018, by Defendants denying him basic hygiene
Plaintiff names as defendants Wardens Chantay Godert, Michelle Thompson, and William Jones
("Warden Defendants"), Deputy Director of Missouri Department of Corrections Cindy Griffith,
classification staff members Leslie Labon, Tim Woods, Robert Henderson, Patricia Shoemyer, Taylor
Preston, Ashley West, Kristin Cutts, Lisa Bledsoe, Chris Powell, and Cheryl Maple ("Classification
Defendants"), and librarian Cherry Pasley (collectively "Defendants").
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items, such as a toothbrush and toothpaste, and denying legal and mailing supplies because his
$7.50 per monthly stipend was removed from his inmate account as soon as it was deposited to
pay his state court filing fees. On January 10, 2019, Defendants filed their Answer, asserting
eleven affirmative defenses but not failure to mitigate damages. 2 (ECF No. 26)
On December 11, 2019, the Court granted in part and denied in part Plaintiff's motion for
summary judgment and opined that "[a]lthough the Court will grant summary judgment in part in
favor of Plaintiff on the basis of liability, it cannot grant summary judgment for damages because
the factual predicate for any amount of damages is lacking. Thus, remaining for trial are Plaintiff's
claims for money damages against Defendants in their individual capacities…." (ECF No. 77 at
On January 14, 2021, Defendants filed the instant motion for leave to amend their answer,
seeking to add the affirmative defense of failure to mitigate damages. The Second Amended Case
Management Order established a September 6, 2018, deadline for amending pleadings. (ECF No.
11) 3 Plaintiff opposed the motion on the grounds that it is brought after undue delay, that granting
it would prejudice him, and that Defendants' newly-proposed affirmative defense would be futile.
In their reply, Defendants argue there is good cause to allow the amendment because they did not
In the eleventh affirmative defense, Defendants assert that "Defendants incorporate by reference
each and every additional affirmative defense that may be uncovered or made known during the
investigation and discovery phase of this litigation, and Defendants reserve the right to amend their
Answer to add and include such additional affirmative defenses after such defenses are
discovered." (ECF No. 26 at 7) Affirmative defenses not pled but that come to light during
discovery "are not automatically incorporated into an answer, and a party cannot 'reserve the right'
to amend its answer once an affirmative defense is discovered." Constr. Indus. Laborers, Pension
Fund v. Wellington Concrete, LLC, 2016 WL 1275605, at *4 (E.D. Mo. Mar. 31, 2016).
Although the parties have filed five motions to amend the case management order, those motions
requested amendments setting new deadlines to complete discovery and to file dispositive motions,
not to amend any of the pleadings.
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become aware of the affirmative defense of failure to mitigate damages until they were able to do
a complete review of Plaintiff's dental records.
Although failure to mitigate damages is not among the nineteen affirmative defenses
enumerated in the list in Rule 8(c), mitigation issues are usually regarded as affirmative defenses
under the catchall clause "and any other matter constituting an avoidance or affirmative defense."
Fed.R.Civ.P. 8(c); Sayre v. Musicland Group, Inc., 850 F.2d 350, 354 (8th Cir. 1988) ("Since the
overwhelming majority of federal courts have decided, for whatever reasons, that failure to
mitigate damages is an affirmative defense under the catchall clause of Rule 8(c), we would thwart
the purpose of the federal rules if we were to hold otherwise."). Rule 8(c) requires that a party
"must affirmatively state any avoidance or affirmative defense…." Fed.R.Civ.P. 8(c). "Generally,
failure to plead an affirmative defense results in a waiver of the defense." First Union Nat'l Bank
v. Pictet Overseas Trust Corp., 477 F.3d 616, 622 (8th Cir. 2007); Sayre, 850 F.2d at 354
(explaining that, as with other affirmative defenses, failure to plead mitigation of damages as an
affirmative defense results in a waiver of that defense and its exclusion from the case.). 4
Rule 15(a) governs the pretrial amendment of pleadings and states that, where an
amendment is not sought as a matter of course, "a party may amend its pleading only with the
opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Rule 15(a) provides
that "[t]he court should freely give leave when justice so requires." Id. Nonetheless, the parties
do not have an absolute right to amend their pleadings, even under this liberal standard. United
States ex rel. Lee v. Fairview Health Sys., 413 F.3d 748, 749 (8th Cir. 2005) (futility is a valid
The Court recognizes that Rule 8(c) is not an absolute bar to a party's belated attempt to plead an
affirmative defense, and for the sake of this motion, will conclude that Defendants have not waived
this affirmative defense.
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basis for a court to deny leave to amend). The Court may deny the movant leave to amend if "there
are compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the non-moving party, or
futility of the amendment." Moses.com Sec., Inc. v. Comprehensive Software Sys., Inc., 406 F.3d
1053, 1065 (8th Cir. 2005) (internal marks omitted).
To establish the affirmative defense of failure to mitigate damages, Defendants must show
Plaintiff failed to exercise reasonable diligence to mitigate damages and showing the portion of
the loss caused by plaintiff's failure to take additional steps. See, e.g., Lister v. Hyatt Corp., 2019
WL 6701407 (W.D. Wash. Dec. 9, 2019) ("The doctrine of mitigation of damages prevents
recovery for those damages the injured party could have avoided by reasonable efforts taken after
the wrong was committed.") (internal quotation omitted); Eskenazi v. Mackoul, 905 N.Y.S.2d 169,
171 (N.Y. App. Div. 2010) ("A party seeking to avail itself of the affirmative defense of failure to
mitigate damages must establish that the injured party failed to make diligent efforts to mitigate
its damages, and the extent to which such efforts would have diminished those damages."). In
their proposed amended answer, Defendants have not asserted any facts of how Plaintiff could
have mitigated his damages.
Amending the answer after the deadline for the pretrial scheduling order has passed
requires a showing of good cause by the moving party. Fed.R.Civ.P. 16(b); Sherman v. Winco
Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008) (where a party seeks leave to amend his
answer after the deadline in the applicable case management order has passed, Rule 16(b)'s goodcause standard applies); Hogan Logistics, Inc. v. Davis Transfer Co., Inc., 2018 WL 341733, at *
6 (E.D. Mo. Jan. 9, 2018) ; Luigino's Inc. v. Pezrow Companies, 178 F.R.D. 523, 525 (D. Minn.
1989) (denying leave to amend to add a punitive damage claim a year after the deadline). Good
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cause requires the party seeking the extension to show diligence in attempting to comply with the
schedule. Id. Moreover, "carelessness is not compatible with a finding of diligence and offers no
reason for a grant of relief." Archer Daniels Midland Co. v. Aon Risk Servs., Inc. of Minn., 187
F.R.D. 578, 582 (D. Minn. 1999) (denying defendant's motion to add ten affirmative defenses ten
months after the deadline). Ultimately, in deciding whether to permit a new affirmative defense
at a later stage in the litigation, as here, the Court examines whether allowance of the defense
would unfairly surprise or prejudice the opposing party. Pictet, 477 F.3d at 623.
Defendants' motion to amend their answer comes well after the scheduling deadline for
amending pleadings, one year after Defendants filed their Answer, six weeks prior to the discovery
deadline, and nine months prior to the trial date. 5 Because Defendants' motion to amend was filed
after the established deadline for amending pleadings and the time for filing an answer, the Court
must apply the good-cause standard in ruling on the motion. Rahn v. Hawkins, 464 F.3d 813, 822
(8th Cir. 2006). Based on the record, the Court finds that Defendants were aware of the need to
include a failure to mitigate damages as an affirmative defense when they filed their answer on
January 10, 2019, and Plaintiff would suffer undue prejudice by virtue of allowance of the
amendment at this juncture because this would require additional discovery, including written
discovery and taking depositions.
The Court finds that good cause does not exist to allow Defendants to amend their answer
because Defendants did not act diligently in filing their motion to amend. When the Court entered
its summary judgment ruling on December 11, 2019, Defendants gained the context necessary to
At the time Defendants filed their motion, the discovery deadline was February 1, 2021, and the
trial date was April 26, 2021 (ECF No. 118), but the Court extended the discovery deadline and
reset the trial date at the parties request on January 27, 2021. (ECF No. 120)
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submit an affirmative defense of failure to mitigate damages in their answer. After learning of the
Court's ruling, Defendants filed their answer without this affirmative defense and then waited until
over one year to file the instant motion. Indeed, Defendants admit that "[t]he issue of damages has
been the primary issue left for trial since the Court decided liability in its Order on summary
judgment." (ECF No. 119 at 3) Likewise, Defendants assert that "Plaintiff has been on notice that
damages has been the primary issue left for trial since the Court decided liability in its Order on
summary judgment." (ECF No. 124 at 2-3) Moreover, the defense of failure to mitigate damages
is an affirmative defense, and Plaintiff would not been given an opportunity to conduct discovery
on this issue because Defendants failed to plead this defense in their answer, and the discovery
deadline is March 15, 2021. (ECF No. 118)
Although the parties presently remain engaged in discovery, Defendants should have been
aware of the defense at issue after they received the Court's ruling on the summary judgment
motions on December 11, 2019, not upon receipt of certain discovery documents as Defendants
contend. As already noted, Defendants admitted that the Court decided liability at the time it
entered its summary judgment rulings, leaving only the issue of damages for trial. 6 Indeed in their
reply, Defendants assert that "Plaintiff's medical records indicate that there is documented
In the alternative, the Court finds that Defendants provided insufficient notice of how Plaintiff
failed to mitigate his damages. The Court also rejects Defendants' argument that Plaintiff had
notice of failure to mitigate defense by their assertion in their Answer that "[a]ny injury or damage
sustained by Plaintiff was due to Plaintiff's own acts or negligence…." (ECF No. 26) Defendants
proposed affirmative defense for failure to mitigate asserts that "Plaintiff failed to act in a
reasonable manner to lessen or reduce the injuries and damages he alleges, and thus, Defendants
are entitled to the affirmative defense that Plaintiff failed to mitigate his damages." (ECF No. 1191 at 7) This affirmative defense is insufficient because Defendants fail to identify how or when
Plaintiff failed to mitigate his damages, nor any other facts about Plaintiff's failure to mitigate his
damages. See Jennings v. Nash, 2019 WL 286750, at *6, 7 (W.D. Mo. Jan. 22, 2019) (the
affirmative defense of failure to mitigate should be stricken where the defense gives "no notice of
what [Plaintiff] could or should have done to limit his damages").
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evidence of his consistent poor hygiene since at least 2013; that he knew he had pre-existing
periodontal disease and non-restorable tooth decay since at least 2013; that against the advice of
medical professionals, he refused treatment since at least 2014 of the same injuries he now alleges;
that he stopped seeing a dentist for long periods of time since 2014; … that he refused to see a
dentist at [Northeast Correctional Center ("NECC")], despite seeing doctors and nurses at least 13
time for other reasons at NECC until the time that he resumed seeing a dentist the same day he
filed this lawsuit on June 27, 2018; that he went to the dentist at least 12 times over the remainder
of 2018 while at NECC; and that he has a history of asking for dental supplies from doctors and
nurses at institutions where he resided prior to NECC since at least 2012." (ECF No. 124 at 5)
Given the period of time between the Court issuing its ruling on the summary judgment motions
and the filing of the instant motion and Defendants' assertions acknowledging Plaintiff's alleged
consistent poor hygiene and refusal to seek dental treatment, Defendants have not shown they
exercised due diligence and without undue delay in attempting to amend their answer. See Rahn,
464 F.3d at 822; Bastard v. Murray County, 420 F.3d 880, 883 (8th Cir. 2005) (affirming district
court's denial of leave to amend because plaintiffs had eight months to request amendment and
"knew of the claims they sought to add when they filed the original complaint"); Freeman v. Busch,
349 F.3d 582, 589 (8th Cir. 2003) (affirming the district court's denial of plaintiff's motion to
amend her complaint because she provided no reasons why the amendment could not have been
made earlier or why her motion to amend was filed so late).
Defendants have failed to make a showing of good cause due to their lack of diligence in
seeking to amend their answer to plead the affirmative defense of failure to mitigate damages.
Although in their motion to amend answer Defendants addressed the issue of good cause,
Defendants were aware of the availability of the proposed defense well before this time especially
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in light of the Court granting in part Plaintiff's motion for summary judgment and the medical and
institutional records available to Defendants. Because Defendants failed to show the issue of good
cause, they may not add the defenses of failure to mitigate damages. See Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 360 (8th Cir. 1997) (the Eighth Circuit Court of Appeals has explained that
the district court has the discretion to grant leave to amend a party's answer to assert an omitted
Rule 8(c) defense).
Likewise, allowing Defendants to amend their answer by adding the
affirmative defense of failure to mitigate damages at this stage of the case would cause undue
prejudice to Plaintiff by requiring additional discovery, including written discovery and taking
depositions, with the looming discovery deadline. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454
(8th Cir. 1998) (holding risk of prejudice resulting from late pleading amendments which imposed
additional discovery requirements justified denial of motion to amend); Thompson-El v. Jones,
876 F.2d 66, 67-69 (8th Cir. 1989) (no abuse of discretion in denying motion to amend where grant
most likely would have necessitated additional discovery and further delay). In light of these
findings, the Court need not analyze the futility of the amendment. Accordingly,
IT IS HEREBY ORDERED that Defendants' Motion for Leave to File First Amended
Answer to Plaintiff's Second Amended Complaint (ECF No. 119) is DENIED.
Dated this 18th day of February, 2021.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
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