Johnson v. University Hospitals Health System, Inc.
Filing
41
Memorandum Opinion and Order denying plaintiff's Motion to strike reply brief (Related Doc # 39 ). Judge Donald C. Nugent(C,KA) Modified text 8/1/2014 (C,KA).
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
VICTORIA JOHNSON,
Plaintiff,
v.
UNIVERSITY HOSPITALS
PHYSICIAN SERVICES,
Defendant.
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CASE NO. 1:13 CV 2012
JUDGE DONALD C. NUGENT
MEMORANDUM OPINION
AND ORDER
This matter is before the Court on the Motion to Strike Reply Brief filed by Plaintiff,
Victoria Johnson. (Docket #39.) Plaintiff asks the Court to strike those portions of the Reply
Brief filed by Defendant, University Hospitals Physician Services, that raise the “honest belief”
defense, arguing that Defendant waived the defense by not including it in any of the answers that
it has filed in this case.
Federal Rule of Civil Procedure 8(c) requires certain affirmative defenses be stated in the
answer. Fed. R. Civ. P. 8(c)(1). "The purpose of Rule 8(c) is to give the opposing party notice
of the affirmative defense and a chance to rebut it." Moore, Owen, Thomas & Co. v. Coffey, 992
F.2d 1439, 1445 (6th Cir. 1993) (citing Blonder-Tongue Laboratories, Inc. v. University of
Illinois Foundation, 402 U.S. 313, 350, 91 S. Ct. 1434, 28 L. Ed. 2d 788 (1971)). However, a
defendant does not waive an affirmative defense if the defense is raised at a time when plaintiff's
ability to respond is not prejudiced. Id. (citing Lucas v. United States, 807 F.2d 414, 418 (5th
Cir. 1986)).
The Court has carefully considered Plaintiff’s Motion to Strike. The Court notes that this
case has been pending for less than a year, only a short period of time has passed since
Defendant’s Amended Answer to Plaintiff’s First Amended Complaint, and it appears that all
relevant depositions and discovery have been completed. Accordingly, the Court will permit
Defendant to raise the affirmative defense of honest belief, allowing Plaintiff to file a response
thereto no later than August 14, 2014. Plaintiff’s ability to respond will not be prejudiced, as she
will have the same opportunity to respond as she would have if the defense had been included in
Defendant’s initial summary judgment brief, filed less than two months ago. In the event
Plaintiff believes additional discovery is necessary to the preparation of a response, Plaintiff
shall notify the Court no later than August 7, 2014, so that additional time may be provided and
any scheduled deadlines may be adjusted.
Plaintiff’s Motion to Strike (Docket #39) is, therefore, DENIED.
IT IS SO ORDERED.
s/Donald C. Nugent
DONALD C. NUGENT
United States District Judge
DATED: August 1, 2014
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