ORDER AND REASONS

SUSIE MORGAN, District Judge.

Before the Court is Defendant/Counter-Plaintiff Signet Maritime Corporation's ("Signet") Motion in Limine to Exclude Any Evidence on Enforceability of Liquidated Damages Provisions.1 Plaintiff/Counter-Defendant LLOG Exploration Company, L.L.C. ("LLOG"), has filed a response to the motion.2 The Court has considered the arguments of counsel and the applicable law. For the reasons that follow, the Motion in Limine is GRANTED.

In the present motion in limine, Signet seeks to exclude "any evidence at trial regarding the enforceability or legality of the parties' contractual liquidated damages provision."3 Signet contends the alleged unenforceability of a liquidated damages provision is an affirmative defense, which must be affirmatively plead pursuant to Rule 8(c) of the Federal Rules of Civil Procedure.4 Signet notes that LLOG never raised the alleged unenforceability of the liquidated damages provision as an affirmative defense to Signet's claims, nor did LLOG ever object to those provisions "as supposedly penal in nature or otherwise unenforceable at all until it submitted the pretrial order."5 Because LLOG failed to plead this defense in its answer, Signet contends that LLOG should be precluded from offering any evidence or argument at trial that the liquidated damages provision is instead an unenforceable penalty provision.6

In response, LLOG "agrees that the enforceability of a liquidated damages provision is considered an affirmative defense in the Fifth Circuit."7 Thus, LLOG does not dispute that its failure to plead such a defense in its initial pleadings amounts to its waiving that defense.8 According to LLOG, the defense was only included in its pre-trial inserts to "preserve" the issue, not to suggest the defense would be argued at trial.9 In fact, LLOG states, in particular, that "it will not present evidence or argument that the provisions of the contract are legally unenforceable `penalty' provisions."10 Instead, LLOG maintains it only intends to argue that Signet's application of the provision is void under the facts, i.e., that the liquidated damages provision was not triggered under the facts of this case.11

Accordingly;

IT IS ORDERED that Signet's Motion in Limine to Exclude Any Evidence on Enforceability of Liquidated Damages Provisions is GRANTED. LLOG is not permitted to argue at trial that the liquidated damages provision is, as a matter of law, an unenforceable penalty provision.