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Hall v. Life Care Centers of America, Inc.

United States District Court, D. Kansas

July 11, 2018

PAMELA HALL, Plaintiff,
v.
LIFE CARE CENTERS OF AMERICA, INC., et al., Defendant.

          MEMORANDUM & ORDER ON MOTION FOR LEAVE TO AMEND ANSWER

          KENNETH G. GALE UNITED STATES MAGISTRATE JUDGE.

         Defendant Lifecare Centers of America (hereinafter “Defendant” or “Defendant LCCA”) has filed a motion seeking leave to amend its Answer to add the affirmative defenses of judicial estoppel and release/ ratification. (Doc. 91.) Having reviewed the parties' submissions, the Court GRANTS in part and DENIES in part Defendant's motion (Doc. 91).

         BACKGROUND

         Plaintiff Pamela Hall filed her Complaint on October 25, 2016, alleging violations of the Family Medical and Leave Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act by Defendant LCCA and Defendant Yosick. (Doc. 1.) She alleges she was subject to employment discrimination and retaliation in violation of the Family Medical and Leave Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act. (Doc. 1.) She contends she was forced to terminate her employment, while Defendants contend she did so voluntarily. Defendant LCCA filed its Answer on December 30, 2016. (Doc. 9.)

         The deadline for parties to move to amend their pleadings expired on May 15, 2017. (Doc. 19.) Defendant received responses to its First Interrogatories from Plaintiff in June 2017, approximately three weeks after the deadline to amend had passed. One of the Interrogatories asked for information regarding Plaintiff's involvement in lawsuits, including bankruptcies. (Doc. 91-1, at 5-6.) Plaintiff listed a bankruptcy filed in the Topeka division of the United States Bankruptcy Court for the District of Kansas, referring Defendant to relevant documents available on PACER. (Id., at 6.)

         Plaintiff's deposition was not scheduled until nine months later, on March 2, 2018. Defendant contends that it did not review the bankruptcy filings until it began preparation for Plaintiff's deposition. At that time, “Defendants discovered Plaintiff had failed - to date - to disclose the existence of this lawsuit as an asset in her pending bankruptcy. Nor had she (and still has not) moved to add this lawsuit as an asset in her bankruptcy schedules.” (Doc. 91, at 2.) Defendant contends that on March 7, 2018, “only eight days after discovering Plaintiff's failure to disclose, ” it notified Plaintiff of Defendants' “intent to assert a judicial estoppel defense.” (Id., at 2-3.) Defendant also contends that Plaintiff's March 2018 deposition testimony regarding her request for vacation pay as part of her severance provide the basis for Defendant's ratification defense.

         The Pretrial Conference in this case was scheduled for March 15, 2018. The parties submitted a draft Pretrial Order in preparation. (Doc. 86-1.) The Court was unable to enter a final Pretrial Order at that time because of “[n]umerous disputes concerning the pleadings in this matter, ” including various objections raised by Plaintiff to certain affirmative defenses, including defenses “not explicitly raised” in Defendants' Answers. (See Doc. 86, at 1-2.) Defendant was ordered to file a motion with this Court addressing certain issues relating to these disputed defenses. (Id.)

         Approximately two weeks later - and approximately a month after Plaintiff's deposition - Defendant LCCA filed the present motion seeking leave to amend its Answer to add the affirmative defenses of judicial estoppel and release and ratification. (Doc. 91.) Defendant contends the requested relief is “warranted because the factual basis for asserting the . . . defenses arose only recently and Plaintiff would not be unduly prejudiced by their inclusion at this stage of litigation.” (Doc. 91, at 1.) Defendant also argues that “standing is a non-waivable matter of subject-matter jurisdiction, not an affirmative defense.” (Id.) Finally, Defendant argues that the affirmative defense of after-acquired evidence was asserted in its initial Answer (Id., at 2.) Because the deadline for parties to amend their pleadings expired more than a year ago, Defendant brings the present motion as a motion to amend pursuant to Fed.R.Civ.P. 15(a) as well as a motion to modify the Scheduling Order pursuant to Fed.R.Civ.P. 16(b)(4).

         ANALYSIS

         I. Estoppel and Release/Ratification.

         A. Rule 16 Analysis.

         Rule 16(b)(4) mandates that “[a] schedule may be modified only for good cause and with the judge's consent.”

To establish ‘good cause' the moving party must show that the scheduling order's deadline could not have been met with diligence. Parker v. Central Kansas Medical Center, 178 F.Supp.2d 1205, 1210 (D.Kan.2001); Denmon v. Runyon, 151 F.R.D. 404, 407 (D.Kan.1993). ‘This rule gives trial courts ‘wide latitude in entering scheduling orders,' and modifications to such orders are reviewed for abuse of discretion.' In re Daviscourt, 353 B.R. 674, (B.A.P. 10th Cir.2006) (citing Burks v. Okla. Publ'g Co., 81 F.3d 975, 978-79 (10th Cir.1996)).

Grieg v. Botros, No. 08-1181-EFM-KGG, 2010 WL 3270102, at *3 (D.Kan. Aug. 12, 2010). It is well-established in this District that motions to modify a scheduling order focus “on the diligence of the party seeking to modify the scheduling order.” Id. (citing Leviton Mfg. Co., Inc. v. Nicor, Inc., 245 F.R.D. 524, 528 (D.N.M.2007) (internal citations omitted)).

         Defendant argues that it

only recently discovered the facts necessary to support estoppel and release/ratification defenses. Because the deadline to amend pleadings passed well before the parties first exchanged discovery responses, and certainly before depositions took place, Life Care could not have raised the defenses ...

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