United States District Court, D. Nebraska
MATT D. WATKINS, Plaintiff,
OTOE COUNTY, NEBRASKA, a political subdivision of the State of Nebraska, Defendant.
Gossett, III United States Magistrate Judge.
matter comes before the Court on Defendant's Motion for
Leave to File Amended Answer to Plaintiff's Complaint
(Filing No. 34). The Court will grant the motion.
filed the instant Complaint on October 13, 2015, alleging he
was terminated from his employment with Defendant on the
bases of disability and retaliation in violation of the
Americans with Disabilities Act (“ADA”) and the
Nebraska Fair Employment Practice Act (“NFEPA”).
(Filing No. 1). Count IV of the Complaint alleges
the tort of wrongful discharge in retaliation for filing a
workers' compensation claim. (Filing No. 1 at p.
6). Defendant filed its Answer on January 22, 2016.
(Filing No. 8). The Court entered an Initial
Progression Order on February 24, 2016, and discovery
commenced. (Filing No. 12). The Court entered a
Final Progression Order on May 26, 2016. (Filing No.
March 15, 2017, the parties notified the Court of a scheduled
mediation on April 26, 2017, and jointly requested an
extension of certain deadlines in the Final Progression
Order. (Filing No. 24). The Court granted the
parties' joint motion and cancelled the final pretrial
conference and trial pending the outcome of mediation.
(Filing No. 25). The parties advised the Court that
mediation was unsuccessful, and following a planning
conference held on May 8, 2017, the Court entered an Amended
Final Progression Order. (Filing No. 33). The
Amended Final Progression Order extended the deadlines for
written discovery and to amend pleadings to August 18, 2017.
The parties have a second mediation tentatively scheduled for
August 9, 2017.
filed the instant motion requesting leave to file an Amended
Answer, seeking to add new affirmative defenses that
Plaintiff's third and fourth claims are barred (1) for
failure to give timely and proper notice of a tort claim
under the Nebraska Political Subdivisions Tort Claims Act
(“NPSTCA”), and (2) for failing to commence this
action within the time period set forth in the
NPSTCA. (Filing No. 34). Plaintiff
opposes the motion on the grounds of prejudice and undue
delay because the factual basis for both of Defendant's
proposed affirmative defenses was readily ascertainable more
than a year ago when Plaintiff filed his original Complaint.
(Filing No. 36 at p. 4).
Federal Rule of Civil Procedure 15, the Court should
“freely give leave” to amend a pleading
“when justice so requires.” Fed.R.Civ.P. 15(a).
Nevertheless, a party does not have an absolute right to
amend and “denial of leave to amend may be justified by
undue delay, bad faith on the part of the moving party,
futility of the amendment or unfair prejudice to the opposing
party.” Amrine v. Brooks, 522 F.3d 823, 833
(8th Cir. 2008) (quotation and citation omitted). The court
has substantial discretion in ruling on a motion for leave to
amend under Rule 15(a)(2). Wintermute v. Kansas Bankers
Sur. Co., 630 F.3d 1063, 1067 (8th Cir. 2011).
Fed.R.Civ.P. 8(c) requires affirmative defenses to be pled in
a party's answer, and generally, failure to plead an
affirmative defense results in a waiver of that defense.
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715
(8th Cir. 2008) (quoting First Union Nat'l Bank,
477 F.3d at 622) (citations omitted). However, a court has
discretion to grant a defendant leave to amend an answer to
include an omitted Rule 8(c) defense. Zotos v. Lindbergh
Sch. Dist., 121 F.3d 356, 360 (8th Cir. 1997) (quoting
Sanders v. Dep 't of Army, 981 F.2d 990, 991
(8th Cir. 1992)).
Plaintiff's arguments regarding delay are well-taken,
“[g]iven the court's liberal viewpoint towards
leave to amend, ” the Court nevertheless finds
Defendant should be granted leave to amend its Answer.
Popp Telcom v. Am. Sharecom, Inc., 210 F.3d 928, 943
(8th Cir. 2000). “Mere delay is not a reason in and of
itself to deny leave to amend. There must be found some
prejudice which would result to others if leave were to be
granted.” Mercantile Trust Co. Nat. Ass 'n v.
Inland Marine Prod Corp., 542 F.2d 1010, 1012 (8th Cir.
1976). Defendant's motion is timely under the Amended
Final Progression Order, which was entered after a telephone
conference and by agreement of the parties. Moreover, trial has
not been rescheduled, which would alleviate any potential
concerns that Defendant's Amended Answer would prejudice
Plaintiff on the eve of trial. Defendant's proposed
affirmative defenses do not necessarily require additional
discovery, as both defenses pertain to the relatively simple
issue of whether Plaintiff gave timely and proper notice
under the NPSTCA and commenced this action within the
statutorily prescribed time frame. In consideration of the
above, the Court finds Defendant should be granted leave to
file its Amended Answer. Accordingly, IT IS ORDERED:
Defendant's Motion for Leave to File Amended Answer to
Plaintiffs Complaint (Filing No. 34) is granted.
Defendant shall file the Amended Answer on or before June 20,
 Neb. Rev. Stat. § 13-919.
Plaintiff did object to the
portion of the order setting a new deadline for Motions for
Summary Judgment; however the summary judgment deadline has