Priester, Jr. et al v. Long Beach Mortgage Company et al

Filing 196

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that Plaintiffs' Motion to Amend Joint Pre-Trial Order (Dkt. 189 ) is hereby GRANTED in part. Signed by District Judge Amos L. Mazzant, III on 2/28/2018. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JOHN PRIESTER, JR. and BETTIE
PRIESTER
v.
LONG BEACH MORTGAGE COMPANY,
et al.

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Civil Action No. 4:16-CV-00449
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiffs’ Motion to Amend Joint Pre-Trial Order (Dkt. #189). Having
reviewed the motion and the relevant pleadings, the Court finds that the motion should be granted
in part.
[T]rial judge[s are] vested with broad discretion to preserve the integrity and
purpose of a pretrial order. Basically, these orders and stipulations, freely and fairly
entered into, are not to be set aside except to avoid manifest injustice. However, in
the interest of justice and sound judicial administration, an amendment of a pretrial
order should be permitted where no substantial injury will be occasioned to the
opposing party, the refusal to allow the amendment might result in injustice to the
movant, and the inconvenience to the [C]ourt is slight.
Sherman v. United States, 462 F.2d 577, 579 (5th Cir. 1972) (citing FED. R. CIV. P. 16; Cent.
Distribs., Inc. v. M.E.T., Inc., 403 F.2d 943, 943 (5th Cir. 1968); Henry v. Comm’r of Internal
Revenue, 362 F.2d 640, 643 (5th Cir. 1966); Laird v. Air Carrier Engine Serv., Inc., 263 F.2d 948
(5th Cir. 1959)); accord DP Sols., Inc. v. Rollins, Inc., 353 F.3d 421, 435 (5th Cir. 2003). Based
on the record in this case, the Court finds that amending the pre-trial order to allow for a jury trial,
as opposed to a bench trial, would cause substantial injury to Defendants in this case. Further,
with the trial scheduled to begin only seventeen days after the motion to amend was filed, eleven
days after the response was filed, and five days after this Order is entered, changing the trial from
a bench trial to a jury trial will result in a considerable inconvenience to the Court.

However, as to the addition of affirmative defenses, the inclusion of “Texas Constitution,”
“Fraud,” “Illegality,” and “Defendants counterclaim cannot be brought” 1 would not present
substantial injury or inconvenience to the Court because Plaintiffs have raised the issues before
and Defendants will not be surprised by the arguments. Further, it would create an injustice to
Plaintiffs, if the Court prevented Plaintiffs from asserting their defenses that have been properly
raised in this case. As to Plaintiffs’ remaining affirmative defenses, they have either previously
been disposed of by the Court or were not timely asserted. Raising new affirmative defenses at
such a late stage in the litigation would be prejudicial and would cause substantial injury to
Defendants.
It is therefore ORDERED that Plaintiffs’ Motion to Amend Joint Pre-Trial Order (Dkt.
#189) is hereby GRANTED in part. It is granted in so far as the Court allows for an amendment

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to add the affirmative defenses of “Texas Constitution,” “Fraud,” “Illegality,” and “Defendants
counterclaim cannot be brought.” It is denied as to the remaining affirmative defenses and as to
the jury demand. The parties shall file an Amended Pre-Trial Order by 5:00 p.m. on Friday,
March 2, 2018 reflecting the changes permitted by this Order.

SIGNED this 28th day of February, 2018.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

1

The Court notes that Defendants only response to this affirmative defense is not a recognized affirmative defense
by Federal or Texas law. While that may be, the Court will still permit Plaintiffs to make the argument, even if it is
not technically labeled an “affirmative defense.”

2