2004 | Cited 0 times | D. Maine | January 15, 2004


The defendants, Youth Promise and Mary Trescott, move for leave toamend their answer to add four affirmative defenses. Defendants' Motionto Amend Their Answer, etc. ("Motion") (Docket No. 9) at

1. The plaintiffs oppose the motion, pointing out that it was filed 20days after the deadline imposed by the court's scheduling order (DocketNo. 5) for amendment of the pleadings and contending that two of theproposed defenses would be futile amendments. Plaintiff's Opposition toDefendants' Motion to Amend Their Answer ("Opposition") (Docket No. 11)at 1-3. I grant the motion, although that action should not beinterpreted in any way as an endorsement of defense counsel'sinexplicable failure to perform an adequate analysis of her client's casein a timely fashion.

Defense counsel's proffered explanation for the delay in adding theproposed affirmative defenses is that "discovery and research undertakenin preparation for the Plaintiff's deposition and summary judgmentrevealed that the . . . additional defenses are available andappropriate." Motion at 2. Counsel arePage 2expected to make such determinations before filing an answer andcertainly within the two months thereafter that were allowed by thescheduling order. Rule 15(a) of the Federal Rules of Civil Procedure doesrequired that leave to amend a pleading should be freely given "whenjustice so requires." See also Foman v. Davis, 371 U.S. 178, 182 (1962).Proposed amendments need not be allowed where they would be futile.Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 59 (1st Cir. 1990).Undue delay may also result in denial of a motion to amend. Larocca v.Borden, Inc., 276 F.3d 22, 32 (1st Cir. 2002).

The plaintiff contends that two of the proposed defenses, numbers 22and 25, "are fruitless and irrelevant" and leave to add them shouldaccordingly be denied. Opposition at 3. The proposed Twenty-SecondDefense provides: "Plaintiff's claims are barred, in whole or in part, bythe workers' compensation exclusivity provision." Motion at 1. Theplaintiff asserts that he "is not claiming any physical or psychologicalinjury . . . and he does not allege any injury that would be covered bythe Workers' Compensation Act." Opposition at 3. The defendants respondthat the proposed defense "is a merited [sic] bar to some of Plaintiff sclaims (i.e. tort claims) because Plaintiff has not limited his requesteddamages to economic damages" and because the plaintiff stated indiscovery that he seeks damages for humiliation and punitive damages and"would not confirm or stipulate that his claims otherwise subject to theworkers' compensation exclusivity bar would be limited to economicdamages." Defendants' Reply Brief in Support of Their Motion to AmendTheir Answer, etc. ("Reply") (Docket No. 11) at 2. The defendants citeCole v. Chandler, 752 A.2d 1189 (Me. 2000), in support of theirposition, id., which reveals that they apparently rely on 39-A M.R.S.A.§ 104 in asserting this defense. In that case, the Law Court heldthat "mental injuries constitute personal injuries within the meaning ofthe exclusivity provision of the Workers' Compensation Act and thus anindependent claim is barred." 752 A.2d at 1196. Claims for damagesarising out of economic injuries, however, are not precluded. Id. Thecomplaint does seek "compensatoryPage 3damages for pain and suffering, psychological upset [and] interferencewith the enjoyment of life, Complaint (included in Docket No. 1) at 14,so there is a theoretical basis for the proposed affirmative defense, asthis action arises out of an employment relationship. I will not find theproposed amendment futile based on representations to the contrarycontained in the plaintiff's memorandum of law submitted in opposition tothe motion for leave to amend

The proposed Twenty-Fifth Defense provides: "Plaintiff's claims arebarred, in whole or in part, because Defendants acted at all times withreasonable grounds to believe that their acts were not in violation ofthe law." Motion at 2. The defendants characterizes this as an assertionof "ignorance of the law as a defense to liability," which is "fruitlessand should be denied." Opposition at 3. The plaintiff responds that theproposed defense is based on 29 C.F.R. § 790.221 and asserts adefense to any claim for liquidated damages under the Equal Pay Act.Reply at 2. The complaint does assert a claim under the Fair LaborStandards Act, specifically 29 U.S.C. § 206, Complaint ¶¶ 45-50,and the regulation applies by its terms to such claims.29 U.S.C. § 790.22(a). The regulation provides that a court maydecline to award liquidated damages under the Act if the employer showsthat the act or omission giving rise to the action was in good faith andthat he had reasonable grounds for believing that the act or omission wasnot in violation of the Act. 29 U.S.C. § 790.22(b). This proposeddefense is not futile on its face.

The plaintiff does not attempt to show that he would be prejudiced inany way by the proposed amendments. There is no showing that he was notaware of the operative facts giving rise to the defenses. See McSorleyv. Town of Richmond, 2002 WL 31106427 (D. Me. Sept. 20, 2002), at *3.While I do so reluctantly under the circumstances, I grant the motion forleave to amend See Johnson v. SpencerPage 4Press of Maine, Inc., 211 F.R.D. 27, 28 (D. Me. 2002); Allendale Mut.Ins. Co. v. Rutherford, 178 F.R.D. 1, 3 (D. Me. 1998).

1. Counsel for the defendants' citation of this regulation as"26 C.F.R. § 790.22," Reply at 2, caused the court unnecessary time andeffort in locating the correct regulation.

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