United States of America v. Hoyte et al

Filing 106

ORDER by Judge Benjamin H Settle denying 103 Motion for Leave to Amend. (TG)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

6
7

8 UNITED STATES OF AMERICA,
9

Plaintiff,

10

CASE NO. C10-2044 BHS
ORDER DENYING LEAVE TO
AMEND

v.

11 DEREK HOYTE and COLUMBIA
CREST PARTNERS,
12
Defendants.
13
14
This matter comes before the Court on Defendants Derek Hoyte (“Hoyte”) and
15
Columbia Crest Partners, LLC’s (collectively “Defendants”) motion for leave to amend
16
(Dkt. 103). The Court has considered the pleadings filed in support of and in opposition
17
to the motion and the remainder of the file and hereby denies the motion for the reasons
18
stated herein.
19
I. PROCEDURAL HISTORY
20
On December 20, 2010, the United States (“Government”) filed a complaint
21
against Defendants. Dkt. 1. The Government contends that (1) Defendants are violating
22

ORDER - 1

1 the conditions of certain easements that have been placed on Defendants’ property; (2)
2 Defendants’ conduct has injured adjoining land owned by the Government; and (3)
3 Defendants have also misappropriated timber from the adjoining land. Id.
4

On September 14, 2011, the Court granted the Government leave to amend its

5 complaint. Dkt. 54. On September 20, 2011, the Government filed an amended
6 complaint adding a cause of action for violations of the Clean Water Act, 33 U.S.C. §
7 1251, et seq. Dkt. 55 (“FAC”).
8

On November 11, 2011, Defendants answered and asserted counterclaims against

9 the Government. Dkt. 63. On November 22, 2011, the Government filed a motion to
10 dismiss the counterclaims. Dkt. 65. On March 7, 2012, the Court granted the
11 Government’s motion. Dkt. 80.
12

On June 8, 2012, Defendants’ attorneys filed a motion for leave to withdraw. Dkt.

13 89. On July 2, 2012, the Court granted the motion. Dkt. 98. On July 19 and 23, 2012,
14 new attorneys appeared on behalf Defendants. Dkts. 100 & 102.
15

On August 10, 2012, Defendants filed a motion for leave to amend their current

16 answer. Dkt. 103. On August 27, 2012, the Government responded. Dkt. 104. On
17 August 30, 2012, Defendants replied. Dkt. 105.
18
19

II. DISCUSSION
Leave to amend should be freely given when justice so requires. Fed. R. Civ. P.

20 15(a). In this case, Defendants seek leave to amend to include (1) an affirmative defense
21 that Hoyte’s liability, if any, was discharged in bankruptcy and (2) an affirmative defense
22 that Defendants’ conduct fell within the scope of the easement. Dkt. 103. With regard to

ORDER - 2

1 the bankruptcy, discharge has been deleted from the list of affirmative defenses making
2 any such amendment unnecessary.
3

With regard to the second proposed amendment, it is not an affirmative defense.

4 “A defense which demonstrates that plaintiff has not met its burden of proof is not an
5 affirmative defense.” Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 1088
6 (9th Cir. 2002) (citing, Flav-O-Rich v. Rawson Food Service, Inc. (In re Rawson Food
7 Service, Inc.), 846 F.2d 1343, 1349 (11th Cir. 1988)). Defendants’ allegation that their
8 conduct falls within the conditions of use placed on Defendants’ property merely negates
9 the Government’s contention that Defendants are violating the conditions of certain
10 easements that have been placed on Defendants’ property. Therefore, the Court denies
11 Defendants’ motion for leave to amend.
12
13

III. ORDER
Therefore, it is hereby ORDERED that Defendants’ motion for leave to amend

14 (Dkt. 103) is DENIED.
15

Dated this 11th day of September, 2012.

A

16
17

BENJAMIN H. SETTLE
United States District Judge

18
19
20
21
22

ORDER - 3