United States District Court, E.D. Wisconsin
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION TO AMEND ANSWER (DKT. NO. 19) AND
GRANTING DEFENDANTS' UNOPPOSED MOTION TO FURTHER AMEND
SCHEDULING ORDER (DKT. NO. 23)
Pamela Pepper United States District Judge.
defendants filed a motion to amend their answer, along with
the proposed amended answer and exhibits. Dkt. No. 19. The
defendants ask to add two affirmative defenses: a thirteenth,
standing; and a fourteenth, asserting that the plaintiff
obtained the property from the federal government “by
committing fraudulent acts” and that “any
equitable relief should be denied under the doctrine of
unclean hands.” Dkt. No. 19-1 at 7. The plaintiff does
not oppose the amendment to the extent the defendants wish to
assert lack of standing, but objects to the proposed
fourteenth affirmative defense of fraud. Dkt. No. 20.
of the Federal Rules of Civil Procedure requires a defendant
to plead affirmative defenses in its initial answer to a
complaint. See Fed.R.Civ.P. 8(c). But Rule 15, which
governs amendments of pleadings, gives the district court
discretion to allow a defendant to amend an answer to assert
an affirmative defense it did not raise initially.
Williams v. Lampe, 399 F.3d 867, 871 (7th Cir.
2005); Jackson v. Rockford Hous. Auth., 213 F.3d
389, 392-93 (7th Cir. 2000). Courts should liberally grant
leave to amend under Rule 15. Fed.R.Civ.P. 15(a); Dubicz
v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir.
2004). The decision to grant or deny a motion to amend lies
within the court's sound discretion, but leave to amend
is “inappropriate where there is undue delay, bad
faith, dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of
allowance of the amendment, or futility of the
amendment.” Villa v. City of Chi., 924 F.2d
629, 632 (7th Cir.1991).
plaintiff doesn't allege undue prejudice for either of
the proposed amendments and doesn't oppose the request to
add the affirmative defense of standing. Regarding the
proposed affirmative defense of fraud, however, the plaintiff
urges the court to deny the request to amend for two reasons.
First, it argues that Rule 9(b) requires a party to plea
fraud with particularity-even when raising it as an
affirmative defense-and that the proposed amendment does not
provide the required particularity. Dkt. No. 20 at 2. Second,
the plaintiff notes that while the proposed defense asserts
that equitable relief should be denied, the plaintiff has not
pled claims for equitable relief. Id. For this
reason, the plaintiff argues that it is “superfluous
and unnecessary” for the defendant to add a fraud
defense. Id. at 2-3.
court agrees that the proposed amendment does not plead the
fraud defense with the particularity required by Rule 9(b).
The court will deny the motion to the extent that it seeks to
add this defense but will allow the defendants the
opportunity to plead more specifically.
early March, the court extended the discovery and dispositive
motions deadlines, requiring the parties to complete all
discovery by June 3, 2019 and to file dispositive motions (if
they choose to do so) by July 8, 2019. Dkt. No. 22. The
defendants have filed an unopposed motion asking the court to
again extend these deadlines. The court will grant that
request, given its delay in ruling on the motion to amend.
court GRANTS the defendants' motion to
amend the answer to include a thirteenth affirmative defense
asserting lack of standing. Dkt. No. 19.
court DENIES WITHOUT PREJUDICE the
defendants' motion to amend the answer to include a
fourteenth affirmative defense based on fraud. Dkt. No. 19.
The court ORDERS the defendants to file an
amended answer by the end of the day on June 26, 2019.
court GRANTS the defendants' unopposed
motion to further amend scheduling order. Dkt. No. 23.
court ORDERS that the parties shall complete
all discovery by July 18, 2019.
court ORDERS that any party wishing to file
a dispositive motion must do so by August 22,
court ORDERS that if the parties elect not
to file a dispositive motion, they must file a joint ...