Watkins v. Otoe County, Nebraska

Filing 38

ORDER - Defendant's Motion for Leave to File Amended Answer to Plaintiff's Complaint (Filing No. 34 ) is granted. Defendant shall file the Amended Answer on or before June 20, 2017. Ordered by Magistrate Judge F.A. Gossett. (TCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MATT D. WATKINS,
Plaintiff,
v.
OTOE COUNTY, NEBRASKA, a
political subdivision of the State of
Nebraska,
Defendant.

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8:15CV371
ORDER

This matter comes before the Court on Defendant’s Motion for Leave to File
Amended Answer to Plaintiff’s Complaint (Filing No. 34). The Court will grant the
motion.
Plaintiff filed the instant Complaint on October 13, 2015, alleging he was
terminated from his employment with Defendant on the bases of disability and retaliation
in violation of the Americans with Disabilities Act (“ADA”) and the Nebraska Fair
Employment Practice Act (“NFEPA”). (Filing No. 1). Count IV of the Complaint
alleges the tort of wrongful discharge in retaliation for filing a workers’ compensation
claim. (Filing No. 1 at p. 6). Defendant filed its Answer on January 22, 2016. (Filing
No. 8). The Court entered an Initial Progression Order on February 24, 2016, and
discovery commenced. (Filing No. 12). The Court entered a Final Progression Order on
May 26, 2016. (Filing No. 17).
On March 15, 2017, the parties notified the Court of a scheduled mediation on April
26, 2017, and jointly requested an extension of certain deadlines in the Final Progression
Order. (Filing No. 24). The Court granted the parties’ joint motion and cancelled the
final pretrial conference and trial pending the outcome of mediation. (Filing No. 25).
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The parties advised the Court that mediation was unsuccessful, and following a planning
conference held on May 8, 2017, the Court entered an Amended Final Progression Order.
(Filing No. 33). The Amended Final Progression Order extended the deadlines for written
discovery and to amend pleadings to August 18, 2017. The parties have a second
mediation tentatively scheduled for August 9, 2017.
Defendant filed the instant motion requesting leave to file an Amended Answer,
seeking to add new affirmative defenses that Plaintiff’s third and fourth claims are barred
(1) for failure to give timely and proper notice of a tort claim under the Nebraska Political
Subdivisions Tort Claims Act (“NPSTCA”), and (2) for failing to commence this action
within the time period set forth in the NPSTCA.1 (Filing No. 34). Plaintiff opposes the
motion on the grounds of prejudice and undue delay because the factual basis for both of
Defendant’s proposed affirmative defenses was readily ascertainable more than a year ago
when Plaintiff filed his original Complaint. (Filing No. 36 at p. 4).
Under Federal Rule of Civil Procedure 15, the Court should “freely give leave” to
amend a pleading “when justice so requires.” Fed. R. Civ. P. 15(a). Nevertheless, a
party does not have an absolute right to amend and “denial of leave to amend may be
justified by undue delay, bad faith on the part of the moving party, futility of the
amendment or unfair prejudice to the opposing party.” Amrine v. Brooks, 522 F.3d 823,
833 (8th Cir. 2008) (quotation and citation omitted). The court has substantial discretion
in ruling on a motion for leave to amend under Rule 15(a)(2). Wintermute v. Kansas
Bankers Sur. Co., 630 F.3d 1063, 1067 (8th Cir. 2011).
Additionally, Fed. R. Civ. P. 8(c) requires affirmative defenses to be pled in a
party’s answer, and generally, failure to plead an affirmative defense results in a waiver of
that defense. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th Cir. 2008)
1 Neb. Rev. Stat. § 13-919.

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(quoting First Union Nat'l Bank, 477 F.3d at 622) (citations omitted). However, a court
has discretion to grant a defendant leave to amend an answer to include an omitted Rule
8(c) defense. Zotos v. Lindbergh Sch. Dist., 121 F.3d 356, 360 (8th Cir. 1997) (quoting
Sanders v. Dep’t of Army, 981 F.2d 990, 991 (8th Cir. 1992)).
Although Plaintiff’s arguments regarding delay are well-taken, “[g]iven the court’s
liberal viewpoint towards leave to amend,” the Court nevertheless finds Defendant should
be granted leave to amend its Answer. Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928,
943 (8th Cir. 2000). “Mere delay is not a reason in and of itself to deny leave to amend.
There must be found some prejudice which would result to others if leave were to be
granted.” Mercantile Trust Co. Nat. Ass’n v. Inland Marine Prod. Corp., 542 F.2d 1010,
1012 (8th Cir. 1976). Defendant’s motion is timely under the Amended Final Progression
Order, which was entered after a telephone conference and by agreement of the parties.2
Moreover, trial has not been rescheduled, which would alleviate any potential concerns
that Defendant’s Amended Answer would prejudice Plaintiff on the eve of trial.
Defendant’s proposed affirmative defenses do not necessarily require additional discovery,
as both defenses pertain to the relatively simple issue of whether Plaintiff gave timely and
proper notice under the NPSTCA and commenced this action within the statutorily
prescribed time frame. In consideration of the above, the Court finds Defendant should be
granted leave to file its Amended Answer. Accordingly,

IT IS ORDERED: Defendant’s Motion for Leave to File Amended Answer to
Plaintiff’s Complaint (Filing No. 34) is granted. Defendant shall file the Amended
Answer on or before June 20, 2017.

2 Plaintiff did object to the portion of the order setting a new deadline for Motions for Summary Judgment; however
the summary judgment deadline has no bearing on the instant motion to amend.

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DATED: June 13, 2017.

BY THE COURT:
s/ F.A. Gossett, III
United States Magistrate Judge

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