Opinion
No. 01 C 3882
March 4, 2004
MEMORANDUM OPINION AND ORDER
Plaintiff, Nancy Messina, filed her complaint on May 25, 2001 alleging sexual harassment, constructive discharge, gender discrimination, and violation of the Equal Pay Act. Defendant, Sigmatron International, Inc., filed its answer on August 21, 2001, nearly three years ago. In its answer, Defendant failed to include statute of limitation defenses for the claims of gender discrimination and violation of the Equal Pay Act and also failed to include an "other than gender" affirmative defense for violation of the Equal Pay Act. Defendant now moves to amend its answer to include these affirmative defenses.
Federal Rule of Civil Procedure 8(a) requires that a party include any statute of limitations or other affirmative defenses in its answer, The purpose of Rule 8(a) is to avoid surprise and undue prejudice to the plaintiff by providing her with notice and the opportunity to demonstrate why the defense should not prevail. Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997).
Despite the limitations of Rule 8(a), courts may allow amendments "when justice so requires," Fed.R.Civ.P. 15(a). Parties will generally be allowed to add affirmative defenses when the importance of those defenses are revealed after the initial answer is made. Id The moving party is obligated to bring these defenses to the attention of the court as soon as they become reasonably apparent. Id If the party fails to promptly seek leave to amend from the court, the party risks waiving those defenses. Id at 968.
I find that the Defendant has waived the three affirmative defenses it now wishes to add. Even though discovery has been closed for well over a year, Defendant offers no reason for its delay in seeking leave to amend. Defendant was granted leave to file affirmative defenses nearly two years ago and until now has failed to do so despite filing two motions for summary judgment. Allowing the
Defendant to amend its pleading after such a long and unjustified delay, would substantially prejudice both the Plaintiff and the litigation process itself. Defendant's Motion for Leave to File Affirmative Defenses to Plaintiff's Complaint Instanter is DENIED,