Opinion
Case No. 8:08-cv-1279-T-24-TGW.
September 10, 2010
ORDER
This cause comes before the Court on Plaintiff's Motion for Judgment on the Pleadings and/or to Strike Defendant's New Affirmative Defense. (Doc. No. 69). Defendant opposes this motion. (Doc. No. 73).
I. Background
This case is set for trial on Monday, September 13, 2010. On August 17, 2010 after the Pretrial Conference, this Court entered a Pretrial Order allowing Plaintiff to file a Second Amended Complaint by August 19, 2010 and allowing Defendant to file a Second Amended Answer by August 25, 2010. (Doc. No. 65). The Court permitted Plaintiff to file a Second Amended Complaint to include additional incidents of alleged discrimination and retaliation which were not specified in the original complaint, but which the parties were aware of because Plaintiff raised them in her EEO filings and engaged in discovery concerning them throughout this case. The Court did not permit Plaintiff to amend her complaint to add new substantive claims or assert new legal theories.
Plaintiff followed the Court's instructions and submitted a Second Amended Complaint that replaced Count I with two separate counts. Count I from Plaintiff's First Amended Complaint alleged "Discrimination in Violation of Title VII." (Doc. No. 10). Count I and II in Plaintiff's Second Amended Complaint allege "Disparate Denial of Extra Hours and Additional Pay in Violation of Title VII" and "Discriminatory Denial of Opportunity to Become Full-Time in Violation of Title VII" respectively. The Court finds that Plaintiff clarified her original Count I by making it more specific with two counts. The facts alleged as to both Counts I and II are not new instances of alleged discrimination since they were litigated by the parties and considered by this Court when ruling on Defendant's Motion for Summary Judgment. In the Summary Judgment Order, the Court addressed Plaintiff's alleged discriminatory denial of extra hours and alleged discriminatory denial of opportunity to become full-time. (Doc. No. 61 at 19, 21). In sum, Plaintiff did not add new substantive claims or assert new legal theories in her Second Amended Complaint.
Defendant responded to Plaintiff's Second Amended Complaint in a timely fashion but asserted a new, substantive affirmative defense: the "same decision" defense. Plaintiff filed the instant motion to strike this new affirmative defense.
II. Standard of Review
III. Analysis
15Taylor v. Florida State Fair Authority875 F. Supp. 812814Foman v. Davis371 U.S. 178182 42 U.S.C. § 2000e-5See Pennington v. City of Huntsville261 F.3d 12621269
The Court has the authority to deny leave to amend a pleading "when (1) the amendment would be prejudicial to the opposing party; (2) there has been bad faith or undue delay on the part of the moving party; or (3) the amendment would be futile." Taylor, 875 F. Supp. at 814. In the instant case, the Court finds that Defendant unduly delayed in raising the "same decision" defense. There appears to be no reason Defendant waited until after the Pretrial Conference and three weeks before trial (when the case has been pending for over two years) to raise it. Although the Court allowed the parties to file amended pleadings after the Pretrial Conference, the parties were directed to address only additional incidents of alleged discrimination and retaliation that had already been considered during discovery. The amended pleadings were not to introduce new legal claims or defenses on the eve of trial.
The assertion of a new, substantive affirmative defense at this point in the litigation is untimely. The Defendant has presented no reason why it could not have been raised earlier, and Plaintiff claims that the undue delay has prejudiced her. Accordingly, it is ORDERED AND ADJUDGED that the Plaintiff's Motion to Strike Defendant's New Affirmative Defense is GRANTED. DONE AND ORDERED at Tampa, Florida, this 10th day of September 2010