United States District Court, N.D. Alabama, Jasper Division
MEMORANDUM OF OPINION
SCOTT COOGLER UNITED STATES DISTRICT JUDGE.
the Court is Defendant Kenneth B. Kilpatrick's
("Kilpatrick") motion for leave to amend answer,
filed February, 27, 2018. (Doc. 26.) Plaintiff Jeffrey
Johnson, Sr. ("Johnson" or "Plaintiff")
timely filed a response (doc. 28) to the Court's March 8,
2018 Order to show cause as to why the motion should not be
granted. For the reasons set forth below, Kilpatrick's
motion is due to be DENIED.
filed suit filed on February 22, 2017, claiming damages for
negligence and wantonness he sustained from of a collision
that occurred between his vehicle and Kilpatrick's
vehicle on a snowy day in February 25, 2015. (Doc. 1.) On May
4, 2017, Kilpatrick filed his answer in which he denied
liability for Plaintiff's injuries and raised twelve (12)
defenses, none of which would have placed
Johnson on notice that immunity would be asserted as defense.
(Doc. 7.) On June 13, 2017, the Court entered a Scheduling
Order setting the deadline for causes of action and parties
to be added by plaintiff as September 26, 2017, and providing
that "[n]o defenses or claims may be added by defendant
after [October 26, 2017]. (Doc. 12.) Neither party requested
an enlargement of time for the period of filing motions to
amend the pleadings in advance of the ordered deadlines. On
December 13, 2017, Kilpatrick filed a motion for summary
judgment-which he based primarily on immunity under
Alabama's Volunteer Service Act. Ala. Code §6-5-336
(1975). (Doc. 18.) On February 9, 2018
Plaintiff filed a motion for summary judgment of his own.
(Doc. 24.) Briefing for the summary judgment motions is
already well underway and trial is set for September 17,
courts are required to enter scheduling
orders which place limitations on "the time to join
other parties, amend the pleadings, complete discovery and
file motions." Fed. R. Civ. 16(b)(3)(A). The order is
controlling unless it is modified by a subsequent order.
"A schedule may be modified only for good cause and with
the judge's consent." Fed.R.Civ.P. 16(b)(4). The
"good cause standard precludes modification unless the
schedule cannot 'be met despite the diligence of the
parties seeking the extension.'" Sosa v.
Airprint Sys., Inc., 133 F.3d 1417, 1418 (11th Cir.
1998) (per curiam) (citing Fed.R.Civ.P. 16 advisory comm.
note). "If a party was not diligent, the [good cause]
inquiry should end" Id. (quoting Johnson v.
Mammoth Recreations, Inc. 975 F.2d 604, 609 (9th Cir.
1992)). As such, "[c]arelessness is not compatible with
a finding of diligence and offers no reason for a grant of
relief." Johnson, 975 F.2d at 609 (citations
omitted). The party seeking relief from the scheduling order
bears the burden of establishing good cause and diligence.
See, e.g., Race Tires Am., Inc. v. Hoosier Racing Tire
Corp., 614 F.3d 57, 84 (3rd Cir. 2010) ("Rule
16(b)(4) focuses on the moving party's burden to show due
is an affirmative defense that a defendant must plead and
prove under both Federal and Alabama law. See Gomez v.
Toledo, 446 U.S. 635, 639-40 (1980) (good faith and
qualified immunity must be pled by defendant); see also
Fed. R. Civ. P. 8 (c) ("In responding to a
pleading, a party must affirmatively state any avoidance or
affirmative defense"); see Lightfoot v. Floyd,
667 So.2d 56, 64 (Ala. 1995); Phillips v. Thomas,
555 So.2d 81, 86 (Ala. 1989); see also Rule 8, Ala.
R. Civ. P. (c). ("In pleading to a preceding pleading, a
party shall set forth affirmatively ... and any other matter
constituting an avoidance or affirmative defense.").
Consequently, "the failure to plead  immunity may
result in a waiver of the defense." Moore v.
Morgan, 922 F.2d 1553, 1557 (11th Cir. 1991); See Ex
Parte Dixon Mills Volunteer Fire Dept., Inc., 181 So.3d
325, 330 (Ala. 2015) (immunity provided under the Volunteer
Service Act is an affirmative defense).
Eleventh Circuit has noted that " [the] Supreme Court
has held that the purpose of Rule 8(c) is to give the
opposing party notice of the affirmative defense and a chance
to rebut it." Grant v. Preferred Research,
Inc., 885 F.2d 795, 797 (11th Cir. 1989) (holding that a
plaintiff was not prejudiced by a defendant's failure to
raise the statute of limitations as an affirmative defense
when it raised the defense in a motion for summary judgment a
month before trial and plaintiff did not assert any prejudice
from the lateness of the pleading); See also Tounzen v.
S. United Fire Ins. Co., 701 So.2d 1148 (Ala. Civ. App.
1997) (trial court did not abuse discretion in refusing to
allow defendant to amend answer to include affirmative
defense). Alabama Rule of Civil Procedure "8(c) provides
that affirmative defenses 'shall' be raised in a
responsive pleading; generally, when a party has failed to
plead an affirmative defense, it is deemed to have been
waived by operation of Rule 8(c)." Id. (citing
Harrell v. Pet, Inc., Bakery Div., 664 So.2d 204
(Ala. Civ. App. 1994))).
motion to amend, Kilpatrick argues that "the undisputed
evidence adduced by the deposition testimony of Defendant,
Kenneth B. Kilpatrick, on October 24, 2017, and the affidavit
of Rick Moody of December 11, 2017, establishes that
Kilpatrick is immune from liability under The Alabama
Volunteer Services Act." (Doc. 26 at 2.)
Kilpatrick's motion relies on Fed.R.Civ.P. 15(b)(1), and
asserts that "amendments of pleadings may be allowed by
the Court[, which] should freely permit an amendment when
doing so will aid in the presenting the merits of the
case." (Id.) However, the Federal Rules of
Civil Procedure are clear that litigation deadlines fixed via
a scheduling order "may be modified only for good cause
and with the judge's consent." Fed.R.Civ.P.
16(b)(4). Additionally, Kilpatrick states only a portion of
Rule 15(b)(1) in his motion. The portion of the rule omitted
goes on to say, ". . . and the objecting party fails to
satisfy the court that the evidence would prejudice that
party's action or defense on the merits. The court may
grant a continuance to enable the objecting party to meet the
evidence." Fed.R.Civ.P. 15(b). As explained below,
Plaintiff has satisfied the Court that it would be severely
prejudiced should the motion to amend be granted.
argues that Kilpatrick has waived immunity by failing to
assert the affirmative defense in his initial pleading or
within a reasonable time thereafter. Plaintiff argues that
the immunity statute upon which Kilpatrick would rely
provides in relevant part,
In any suit against a nonprofit organization, nonprofit
corporation, or a hospital for civil damages based upon the
negligent act or omission of a volunteer, proof of such act
or omission shall be sufficient to establish the
responsibility of the organization therefor under the
doctrine of "respondeat superior, " notwithstanding
the immunity granted to the volunteer with respect to any act
or omission included under subsection (d).
Ala. Code §6-5-336(e).
asserts that it would be prejudiced if Kilpatrick were able
to amend his answer a full four months after the scheduled
deadline for amending pleadings for several reasons. First,
Plaintiff is "now barred from joining additional parties
and has lost the opportunity to join the Houston Volunteer
Fire Department [("the Department")] as the entity
responsible for the negligence of its volunteer
Kilpatrick." (Doc. 28 at 4.) Next, Plaintiff contends
that even if the Court, in the alternative, were to allow him
to amend his complaint, the statute of limitations has now
run on any negligence claim he might have been able to assert
against the Department. Finally, Plaintiff points out that
discovery is complete. Unaware of the immunity claim when
taking Kilpatrick's deposition, Plaintiff made no inquiry
into the facts relevant to the defense. Additionally, the
March 26, 2018 discovery cutoff has ...