DeBORAH K. CHASANOW, District Judge.
Presently pending and ready for resolution in this civil rights case is a motion for leave to file an amended answer filed by Defendants Gregg L. Hershberger, et al. ("Defendants"). (ECF No. 114). The issues have been fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the following reasons, the motion will be granted.
The following facts are drawn from Plaintiff David Brightwell's ("Mr. Brightwell" or "Plaintiff") second amended complaint. (ECF No. 80).
Plaintiff, initially proceeding pro se, commenced this action by filing a complaint on November 15, 2011. (ECF No. 1). Plaintiff filed a motion for leave to file his first amended complaint to name additional Defendants (ECF No. 6), and the amended complaint was filed on January 23, 2012. (ECF No. 10). On February 26, 2013, the undersigned granted in part and denied in part Defendants' motion to dismiss and directed Plaintiff's newly appointed counsel to file a second amended complaint. (ECF Nos. 69; 70). Plaintiff, through appointed counsel, filed his second amended complaint on July 15, 2013. (ECF No. 80). The second amended complaint includes additional details about the alleged incidents, most notably allegations about the 2009 incidents. Plaintiff's second amended complaint includes seven counts: violation of constitutional rights; conspiracy to violate constitutional rights; violation of constitutional rights by failure to supervise and train; state tort claims for battery, intentional infliction of emotional distress, and negligence; and violation of the Maryland Declaration of Rights. (ECF No. 80 ¶¶ 51-93). On September 24, 2013, Defendants filed an answer to the second amended complaint. (ECF No. 89).
After several joint motions for extension of time (ECF Nos. 91; 94; 97; 99; 102), Defendants filed the pending motion for leave to file an amended answer on March 31, 2015, approximately four weeks before discovery was then scheduled to end. (ECF No. 114). On April 3, 2015, Defendants, following a court order to comply with Local Rule 103.6 (ECF No. 117), filed a redline version of their amended answer (ECF No. 119). Plaintiff filed an opposition on April 17, 2015 (ECF No. 120), and Defendants replied (ECF No. 124). The parties filed two subsequent consent motions for extension of time (ECF Nos. 131; 134), and discovery closed on August 31, 2015 (ECF No. 135).
The Federal Rules of Civil Procedure provide that a party may amend a pleading as a matter of course within 21 days of serving it. Fed.R.Civ.P. 15(a)(1). Once the right to amend as a matter of course expires, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed.R.Civ.P. 15(a)(2). Leave is not difficult to obtain: the court will freely give it "when justice so requires." Id. Denial of leave to amend should occur "only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4
Defendants' proposed amended answer seeks to add, in relevant part, six affirmative defenses.
Plaintiff argues that Defendants' amended answer "will inject into this case a host of new legal theories based on facts [he] believed were undisputed and about which [he] will have no opportunity to conduct adequate discovery." (ECF No. 120, at 2). Plaintiff contends that, even though the motion was filed approximately four weeks prior to the scheduled close of discovery, he will be unable to fully conduct discovery because the motion was filed after the deadline for written discovery. Plaintiff notes that Defendants have not provided a reason to "justify" their delay and "do not and cannot allege that they seek to assert the affirmative defenses as a result of newly discovered evidence." (Id. at 14).
Defendants counter that the amended answer is not prejudicial because it only adds affirmative defenses; it does not plead new facts or add counterclaims. (ECF No. 124, at 2). The affirmative defenses "do not allege any new facts or pertain to matters for which Plaintiff has not already considered." (ECF No. 114-1, at 4). Defendants assert that, at the time of filing, Plaintiff had nearly four weeks to continue discovery and could still send written discovery requests. Further, the discovery deadline had, at the time of filing and subsequently, been extended many times. Finally, Defendants argue that Plaintiff is not prejudiced by the amended answer because, in addition to filing the motion before the close of discovery, Defendants filed the motion well in advance of the dispositive motion deadline and before a trial date was scheduled. (ECF No. 124, at 7-8).
Much of Plaintiff's opposition to Defendants' amended answer focuses on the eighteen month delay between when Defendants filed their initial answer and their amended answer. Defendants' only justification for the delay is that, following the retirement of an attorney handling the case, current defense counsel "noticed that important colorable defenses had not been plead." (ECF No. 114-1, at 3). The undersigned, like Plaintiff, does not find this to be a compelling reason for delaying the inclusion of basic affirmative defenses by eighteen months. Delay, however, "cannot block an amendment which does not prejudice the opposing party." Frank M. McDermott, Ltd. v. Moretz, 898 F.2d 418, 421 (4
"Whether an amendment would be prejudicial is a factual determination. Courts look at the nature of the proposed amendment, the purpose of the amendment, and the time when the amendment was filed." Equal Rights Center v. Archstone Smith Trust, 603 F.Supp.2d 814, 818 (D.Md. 2009) (citing Laber, 438 F.3d at 427). The Fourth Circuit has explained that:
Laber, 438 F.3d at 427. The current case falls between the two extremes highlighted in Laber. At the time the amended answer was filed, extensive discovery had been completed, but there was still approximately four weeks of discovery remaining, and the parties filed multiple joint motions for extensions that ultimately extended discovery until August 31, 2015. Plaintiff asserts that additional discovery would be required to address Defendants' affirmative defenses, but the affirmative defenses he mistakenly uses to illustrate this point were included in Defendants' original answer. As such, Plaintiff has not specifically asserted, and it is not readily apparent, why additional discovery would be required in response to Defendants' additional affirmative defenses. At the very least, "[a]ny potential prejudice to plaintiff[] may be wholly cured with a small window of additional discovery." Baltimore County FOP Lodge 4 v. Baltimore County, 565 F.Supp.2d 672, 675 (D.Md. 2008); see also Hemphill v. ARAMARK, Inc., No. ELH-12-1584, 2013 WL 55665, at *2 (D.Md. Jan. 2, 2013) (granting a motion to amend even though it "would effectively require a brief extension of the discovery deadline"). Further, no trial date has been set, and Plaintiff has sufficient time to address the affirmative defenses in his forthcoming dispositive motion. Cf. Sherwin-Williams Co. v. Coach Works Auto Collision Repair Center, Inc., No. WMN-07-CV-2918, 2010 WL 889543, at *2 (D.Md. Mar. 4, 2010).
The cases Plaintiff cites to support his claims of prejudice, and other cases that reject amended pleadings, are distinguishable because the defendants in those cases attempted to add wholly new counterclaims that would have required "substantial new discovery" and "significantly changed the nature of the litigation." Lone Star Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922, 940 (4
Plaintiff also asserts that "Defendants' prolonged delay in raising the affirmative defense alleging failure to exhaust administrative remedies [is prejudicial because it] could expose [him] to a statute of limitations defense that the Defendants would not otherwise have." (ECF No. 120, at 10). Further, Plaintiff argues that "Defendants have waived this defense because they neglected to raise it promptly in response to any of [his] complaints." (Id. at 13). Defendants aver that they have not waived the defense. (ECF No. 124 at 7). Defendants also contend that Plaintiff is not prejudiced or surprised by the late assertion of the failure to exhaust defense because he was aware of the defense as early as 2011. (ECF Nos. 124, at 6; 124-1, at 4). There is "`ample authority' in the Fourth Circuit `for the proposition that absent unfair surprise or prejudice to the plaintiff, a defendant's affirmative defense is not waived.'" Chase v. Peay, 286 F.Supp.2d 523, 531 (D.Md. 2003) (citing Brinkley v. Harbour Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999)). Here, there is no indication that Plaintiff was surprised by the exhaustion requirement; in fact, it appears that he was well aware of it.
Blake v. Maynard, No. 8:09-cv-02367-AW, 2012 WL 5568940, at *4 (D.Md. Nov. 14, 2012). Accordingly, Plaintiff has not demonstrated prejudice sufficient to deny Defendants' motion for leave to amend their answer.
Plaintiff asserts that the proposed statute of limitations and failure to exhaust defenses are futile. (ECF No. 120, at 12-14). The standard for futility is the same as for a motion to dismiss under Rule 12(b)(6). See U.S. ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d 370, 376 (4
Plaintiff argues, in response to the statute of limitations defense, that his amended complaint that includes allegations of the 2009 incidents relates back to his initial complaint because they "arise out of the same pervasive practice of correctional officer misconduct at RCI." (ECF No. 120, at 12); see also Fed.R.Civ.P. 15(c)(1). Plaintiff may be correct in his assessment of the merits of his relation back argument, but "[d]etermining whether amendment would be futile does not involve an evaluation of the underlying merits of the case."
For the foregoing reasons, Defendants' motion for leave to file an amended answer will be granted. A separate order will follow.