Driver v. Pro Ag Management, Inc. et al

Filing 59

ORDER granting 52 Motion to Dismiss. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/11/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
RONALD G. DRIVER,
Plaintiff,
v.
PRO AG MANAGEMENT, INC., d/b/a
PRODUCERS AG INS – LEXINGTON
and ARMTECH INSURANCE
SERVICES, INC.
Defendants.

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No. 3:16-cv-1959
Chief Judge Crenshaw

ORDER
After this Court entered an Order (Doc. No. 51) granting Ronald G. Driver’s Motion to
Compel Arbitration (Doc. No. 42) and Pro Ag Management, Inc.’s (“Pro Ag”) Motion to Stay
Pending Completion of Arbitration (Doc. No. 39), Driver filed a Motion to Dismiss With Prejudice
(Doc. No. 52). The basis for that Motion is that he has settled with Defendants.
In response, ARMtech Insurance Services, Inc. (“ARMtech”) “admits that [Driver] has
entered into separate written settlement agreements with each Defendant thereby fully and finally
resolving all claims asserted in Driver’s Complaint.” (Doc. No. 56 at 1). ARMtech insists, however,
that its “assertion of comparative fault against its Co-Defendant for negligence constitutes a still
pending claim in this lawsuit.” (Id.).
ARMtech’s use of the term “assertion of comparative fault” is telling. In its Answer,
ARMtech alleges, as an affirmative defense, the following:
4. The sole proximate cause or proximate contributing cause of Plaintiff’s losses or
damages, if any, was the Plaintiff’s own negligent or intentional acts or omissions,
which are pled as a complete bar to recovery or in diminution thereof. Alternatively,
the sole proximate cause or proximate contributing cause of Plaintiff’s losses or
damages, if any, was Pro Ag’s negligent or intentional acts or omissions, which are

pled as a complete bar to recovery or in diminution thereof.
(Doc. No. 25 at 9, ¶ 4).
Under Rule 13(g) of the Federal Rules of Civil Procedure, “[a] pleading may state as a
crossclaim any claim by one party against a coparty if the claim arises out of the transaction or
occurrence that is the subject matter of the original action or of a counterclaim [and] may include
a claim that the coparty is or may be liable to the cross-claimant for all or part of a claim asserted
in the action against the cross-claimant.” Fed. R. Civ. P. 13(g). An affirmative defense, however,
is not a “claim” for relief. Philadelphia Indem. Ins. Co. v. Chicago Title Ins. Co., 771 F.3d 391, 401
(7th Cir. 2014); Mintzer v. Lester, 51 F. App’x 929, 930 (5th Cir. 2002); Bruegge v. Metro. Prop.
& Cas. Ins. Co., No. 13-CV-1256-JPG-DGW, 2014 WL 2582749, at *1 (S.D. Ill. June 9, 2014);
Dougan v. Armitage Plumbing, LLC, No. 6:11-CV-1409-ORL-22, 2011 WL 5983352, at *1 (M.D.
Fla. Nov. 14, 2011), report and recommendation adopted, No. 6:11-CV-1409-ORL-22, 2011 WL
5983344 (M.D. Fla. Nov. 29, 2011) J & J Sports Prods., Inc. v. Mendoza-Govan, No. C 10-05123
WHA, 2011 WL 1544886, at *7 (N.D. Cal. Apr. 25, 2011); Ash Grove Cement Co. v. MMR
Constructors, Inc., No. 4:10-CV-04069, 2011 WL 3811445, at *2 (W.D. Ark. Aug. 29, 2011).
Instead, it is “a defense to a claim for relief, and, therefore, it does not provide an avenue for an
award of damages.” Militello v. Allstate Prop. & Cas. Ins. Co., No. 1:14-CV-0240, 2016 WL
3254144, at *3 (M.D. Pa. June 14, 2016) (collecting cases); see also, Akiachak Native Cmty. v.
United States Dep’t of Interior, 827 F.3d 100, 107 (D.C. Cir. 2016) (“Under Federal Rule of Civil
Procedure 8(c), however, affirmative defenses made ‘[i]n respon[se] to a pleading’ are not
themselves claims for relief.”); Philadelphia Indem., 771 F.3d at 401 (citing Illinois law) (“A
counterclaim differs from an answer or affirmative defense. A counterclaim is used when seeking

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affirmative relief, while an answer or affirmative defense seeks to defeat a plaintiff's claim.”).
ARMtech is correct that, under Rule 15(a)(2) of the Federal Rules of Civil Procedure, a party
may amend its pleadings and leave to do so should “be freely given when justice so requires.”
Foman v. Davis, 371 U.S. 178, 182 (1962). This neglects to consider, however, that ARMtech has
made no such request. It also neglects to consider that “after the deadline for amendments in the
scheduling order has passed, Rule 15(a)’s instruction for leave to be ‘freely given’ must be read in
conjunction with Rule 16’s requirement that amendment of a scheduling order must only be made
upon a showing of good cause and leave of the court.” Andretti v. Borla Performance Indus., Inc.,
426 F.3d 824, 835 (6th Cir. 2005) (citing Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003)). Here,
the Case Management Order (Doc. No. 36) set a May 1, 2017 deadline for amending pleadings, and
none were filed.
As it stands, the only “claims for relief” before the Court were those presented by Driver in
his Complaint and, by all accounts, those claims have been resolved. Accordingly, the Motion to
Dismiss With Prejudice (Doc. No. 52) is hereby GRANTED, and the Clerk of the Court shall enter
a final judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.
IT IS SO ORDERED.
__________________________________________
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE

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