United States District Court, D. Nebraska
EZEQUIEL OLIVARES ABARCA, ALFREDO ALESNA JR., DAVID CAGLE, STEPHEN L. DAVIS, FRANK EADS, and KENNETH J. SURMAN, individually and on behalf of all those similarly situated, Plaintiffs,
WERNER ENTERPRISES, INC., DRIVERS MANAGEMENT, LLC, and DOES 1-100, inclusive, Defendants. WILLIAM SMITH, on behalf of himself and others similarly situated, and on behalf of the general public, Plaintiff,
WERNER ENTERPRISES, INC., d/b/a C.L. WERNER, INC., a corporation, and DOES 1-100, inclusive, Defendants. BRIAN VESTER and JOEL MORALES, individually and on behalf of all others similarly situated, Plaintiffs,
WERNER ENTERPRISES, INC., and DRIVERS MANAGEMENT, LLC; Defendants.
MICHAEL D. NELSON, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Defendants' Motion for
Leave to Amend Answer (Filing No. 214 in the Lead Case).
Defendants request leave to file an Amended Answer to the
Fourth Amended Complaint in the Lead Case, No. 8:14cv319, to
add additional details to two of their previously pled
affirmative defenses, and to add an additional affirmative
defense of res judicata and collateral estoppel. The
Abarca and Smith Plaintiffs oppose the
motion. (Filing No. 216).
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).
Additionally, 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 v. Pictet
Overseas Trust Corp., 477 F.3d 616, 622 (8th Cir. 2007).
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)).
seek leave to amend their fifth affirmative defense of
“federal preemption” to add additional federal
and constitutional laws that they assert preempt
Plaintiffs' claims. Defendants also seek to amend their
ninth affirmative defense that Plaintiffs' claims are
unconstitutional and “barred in whole or in part”
by the Dormant Commerce Clause to add additional
constitutional provisions they allege bar Plaintiffs'
claims, including the Due Process and Full Faith & Credit
clauses. (Filing No. 214-1 at pp. 9-10). Finally, Defendants
seek leave to add an eighteenth affirmative defense of res
judicata and collateral estoppel based on any overlapping
claims and issues that were ruled on in Baouch v. Werner
Enterprises, Inc., No. 8:12cv408 (D. Neb. 2012). (Filing
No. 214-1 at p. 13).
argue that Defendants' motion should be denied because of
undue delay and dilatory motive, and because the proposed
amendments are futile. (Filing No. 216 at p. 2).
Specifically, Plaintiffs argue that Defendants have waived
their proposed res judicata affirmative defense by failing to
object for more than two years during the pendency of the
Baouch litigation. Plaintiffs also argue Defendants
unduly delayed by not asserting a “claim
splitting” defense when both this action and the
Baouch actions were being litigated and have
therefore acquiesced and waived such defense. (Filing No. 216
at pp. 4)(quoting Restatement (Second) Judgment § 26
cmt. a (1982)). Plaintiffs further argue Defendants did not
justify the undue delay in seeking to add details to their
constitutional and preemption defenses because
Plaintiffs' operative Complaint made it clear that they
alleged both Nebraska and California law applies to drivers.
(Filing No. 216 at p. 7). Plaintiffs additionally argue that
Defendants' res judicata defense, which is actually a
defense of judicial estoppel, is futile. (Filing No. 216 at
p. 3). Finally, Plaintiffs argue that, to the extent
Defendants assert that they have “always taken the
position” that Plaintiffs are barred by res judicata
based on the “boilerplate defenses” asserted in
the answer to the Fourth Amended Complaint, then Defendants
do not need to amend their answer again. (Filing No. 216 at
the Lead Case has been pending for quite some time,
“[g]iven the court's liberal viewpoint towards
leave to amend, ” the Court nevertheless finds
Defendants should be granted leave to amend their 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). Defendants' proposed amended answer adds more
details to two of their previously pled affirmative defenses,
and arguably their res judicata and collateral estoppel
defenses were previously encompassed in Defendants'
“boilerplate” defenses that Plaintiffs'
claims are barred in whole or in part by the “equitable
doctrines of waiver, estoppel, laches, and/or unclean
hands.” See, e.g., Infogroup, Inc. v. Database
LLC, 95 F.Supp.3d 1170, 1193 (D. Neb. 2015)(Gerrard,
J.)(citing Zotos v. Lindbergh Sch. Dist., 121 F.3d
356, 361 (8th Cir. 1997)(“[Affirmative defenses] need
not be articulated with any rigorous degree of specificity,
and may be sufficiently raised for purposes of Rule 8 by
their bare assertion.”). Further, at this time, the
Court cannot say as a matter of law that Defendants
definitely waived a claim splitting defense rendering such
defense futile; whether Defendants waived the defense and
whether such defense is successful on the merits is a
determination better left to be made on a motion for summary
judgment. More importantly, Defendants' motion is timely
under the parties' agreed progression order, which was
entered by the Court a little over one month before
Defendants' filed the instant motion. (Filing No. 211 in
the Lead Case). At this time, the parties have not conducted