2019 WL 3776957

United States District Court, N.D. Illinois, Eastern Division.
Milton LeBlanc, Plaintiff,
v.
Mr. Bult’s, Inc., Defendant.
No. 15 C 6019
|
08/12/2019

Judge Ronald A. Guzmàn

MEMORANDUM OPINION AND ORDER
*1 For the reasons stated below, Plaintiff’s motion for partial summary judgment [188] is denied, Defendant’s cross-motion for summary judgment [237] is granted, and Defendant’s motion to bar the testimony of Dr. Piva [238] is denied. Further, Plaintiff’s motion to dismiss for lack of subject-matter jurisdiction [271] is denied. All other pending motions are denied as moot. Civil case terminated.

STATEMENT

I. Plaintiff’s Motion to Dismiss for Lack of Subject-Matter Jurisdiction
Plaintiff’s motion to dismiss the case for lack of subject-matter jurisdiction is denied. According to Plaintiff, the Court has lost subject-matter jurisdiction based on several perceived improprieties in this case, including purported violations of his due process rights, fraud, violations of federal and state statutes, abuse of the Court’s discretion, concealment of a material fact (it is unspecified by whom), the appearance of bias and prejudice, violations of judicial canons, and the commission of alleged predicate acts under the Racketeer Influenced and Corrupt Organizations Act. (Pl.’s Mot., Dkt. # 271, at 1.) Because Plaintiff cites no valid case law in support of these assertions, the motion is denied. The Court has subject-matter jurisdiction pursuant to diversity jurisdiction under 28 U.S.C. § 1332.

II. Cross-Motions for Summary Judgment

A. Procedural History
The procedural history of this four-year-old case is lengthy; the Court provides a summary of the history only for the period after it was assigned the case earlier this year. When the case was reassigned to this Court on March 26, 2019, Plaintiff’s motion for summary judgment, which was filed on March 7, 2019, was pending. (Dkt. ## 188, 200.) On March 28, 2019, Defendant filed a motion to strike Plaintiff’s motion for partial summary judgment and statement of facts. After reviewing the parties’ briefs, the Court denied Defendant’s motion to strike and set a briefing schedule on Plaintiff’s motion for summary judgment. (Dkt. # 221.) Defendant then moved to file a cross-motion for summary judgment and amend the briefing schedule accordingly, which the Court allowed on May 30, 2019. (Dkt. ## 224, 226.) After Plaintiff filed numerous documents and motions unrelated to summary judgment, he sought, on June 24, 2019, an extension of the date on which he needed to respond to the cross-motion for summary judgment – to July 30, 2019. (Dkt. # 256.) The Court granted Plaintiff’s request that same day, giving him until July 30, 2019 to respond to Defendant’s cross-motion for summary judgment and file a reply in support of his partial motion for summary judgment. (Dkt. # 259.) The Court noted in its order that “[g]iven the lengthy extension, any additional requests to extend the deadline will be disfavored.” (Id.) Plaintiff did not file any papers on July 30, 2019 regarding either party’s motion for summary judgment, and instead, on July 31, 2019, filed the above-mentioned motion to dismiss for lack of subject-matter jurisdiction.

*2 Given Plaintiff’s failure to meet the generous deadline provided for his summary-judgment response and reply, and his apparent decision to instead spend his time preparing the motion to dismiss for lack of subject-matter jurisdiction, the Court will address the summary-judgment motions without the benefit of Plaintiff’s response. Therefore, to the extent they are supported by the record, the Court deems Defendant’s statements of fact to be admitted.

B. Facts
This case arose from purported injuries Plaintiff suffered in Virginia on July 12, 2013 when the vehicle he was riding in was struck from behind by a tractor-trailer owned by Defendant. (Am. Answer, Dkt. # 35, ¶¶ 11-14.) Plaintiff admits that there was minimal damage to the rear of the vehicle in which he was riding and that “this was a relatively low impact collision.” (Pl.’s Mot. Exclude Testimony Regarding Property Damage Vehicles, Dkt. # 42, at 2.) Defendant admits liability for negligence. (Id. ¶ 14.) Plaintiff was involved in another unrelated car accident in May 2013, during which he sustained injuries to his back and neck. (Pl.’s Dep., Dkt. # 236-1, at 10-11.)

C. Summary Judgment Standard
Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When considering a motion for summary judgment, the Court must construe the evidence and make all reasonable inferences in favor of the non-moving party. Hutchison v. Fitzgerald Equip. Co., Inc., 910 F.3d 1016, 1021 (7th Cir. 2018). Summary judgment is appropriate when the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to the party’s case and on which that party will bear the burden of proof at trial.” Celotex v. Catrett, 477 U.S. 317, 322 (1986). “A genuine issue of material fact arises only if sufficient evidence favoring the nonmoving party exists to permit a jury to return a verdict for that party.” Brummett v. Sinclair Broadcast Grp., Inc., 414 F.3d 686, 692 (7th Cir. 2005).

D. Analysis
The parties agree that Virginia law applies to the instant case. In his motion, Plaintiff seeks judgment in his favor for “economic any-and-all quantifiable damages as proofs allow in accordance with any-and-all applicable Virginia statutes-leaving the issue of non-economic damages to be decided by jury adjudication.” He then asks for ninety days from the date of the Court’s determination on the matter “to permit the Plaintiff to submit a Memorandum In Support of a Request for Award,” as he is “still treating for injuries sustained relating to this accident.”

Defendant responds and argues in support of its cross-motion that Plaintiff not only fails to identify specifically what damages he has incurred, he also does not show that the July 13, 2013 accident at issue in this case caused the “economic and non-economic” damages he seeks. “Damages are not presumed in a negligence action.” Gilliam v. Immel, 795 S.E.2d 458, 463 (Va. 2017). As the Virginia Supreme Court has stated:
An admission of liability is only an admission of negligence and causation. Therefore, in the context of an automobile accident case, an admission of liability relieves the plaintiff of the burden of proving that the defendant was negligent and that defendant’s negligence was a proximate cause of the accident. An admission of liability, however, does not admit compensable damage.
*3 Id. It is Plaintiff’s burden to prove his damages by a preponderance of the evidence. Id. at 462. Given Plaintiff’s failure to respond to Defendant’s cross-motion, the only information the Court has from Plaintiff with regard to causation or damages is contained in his motion for summary judgment and supporting statement of facts. In the latter, Plaintiff indicates as follows:
14. Plaintiff has undergone one of the surgical procedures to address injuries sustained in motor vehicle accident occurring 12 July 2013.
15. Plaintiff has incurred economic and non-economic damages as a result of the motor vehicle accident occurring 12 July 2013.
16. Records given to the defendants indicate that Plaintiff sustained injuries.
17. Plaintiff traveled to Costa Rica to obtain evaluation for treatment of injuries in an effort [to] mitigate treatment costs to the Defendants.
18. Plaintiff requires surgery and treatment.
19. Plaintiff, through his former attorney[,] provided Defendants with documentation to support damages.
20. Plaintiff independently provided Defendants with additional bills incurred from and related to treatment.
21. Medical bills are generally admissible as damages whether or not they have been paid.
22. At social security disability hearing a Judge and vocationalist found Plaintiff disabled. Plaintiff received 100 % disability benefits and Medicare Part A and B.
23. In December of 2013 due to injuries sustained in the July 2013 motor vehicle accident, the Plaintiff was administratively terminated from his position as Operations[ ] Supervisor.
24. The Plaintiff is still treating for injuries sustained in the July 2013 motor vehicle accident.
(Pl.’s Stmt. Facts, Dkt. # 190, ¶¶ 14-24.) Each of these statements cites to Plaintiff’s affidavit as the relevant record support.

Even assuming the truth of these statements, they fail to (1) establish that Plaintiff’s injuries and resulting medical bills and the loss of his job were caused by the July 12, 2013 accident; or (2) create a genuine issue of material fact as to these issues. Plaintiff has not pointed to nor can the Court locate any evidence that supports Plaintiff’s assertion that he was terminated “due to injuries sustained in the July 2013 motor vehicle accident.” Accordingly, summary judgment is granted in Defendant’s favor as to damages sought for this alleged injury.

The only piece of record evidence that appears to even peripherally address causation with respect to the alleged physical injuries is a document entitled “Consultation Report,” which was drafted by the Costa Rican doctor, Alfio P. Piva, whom Plaintiff saw once in April 2016.1Dr. Piva was deposed telephonically on October 29, 2016.2 Plaintiff, representing himself at that time, briefly questioned Dr. Piva, followed by defense counsel’s questioning of the doctor.

*4 As an initial matter, Defendant moves to bar the testimony by Dr. Piva because Plaintiff failed to disclose him as an expert witness. Plaintiff disclosed the doctor solely as a treating physician who would be “testifying as a ‘fact witness.’ ” (Def.’s Mot. Bar, Ex. B, Pl.’s Rule 26 Disclosure Stmt., Dkt. # 238-2, at 2.) According to Plaintiff’s disclosure, the scope of Dr. Piva’s testimony was restricted to his observations about “Plaintiff[’]s condition, such as (but not limited to): alleged injuries, evaluation and treatment protocols for such.” (Id.) Plaintiff’s disclosure expressly states that Dr. Piva was not retained to provide expert testimony and that a written report was therefore not required. (Id.) If Dr. Piva was not hired to opine as to the cause of Plaintiff’s injury but was able to come to a conclusion as to causation in the course of his treatment, then a report may not be required. See Guarantee Tr. Life Ins. Co. v. Am. Med. & Life Ins. Co., 291 F.R.D. 234, 237 (N.D. Ill. 2013) (“A physician sought only for treatment is not ‘retained for the purposes of litigation,’ and even if the treating physician will offer an opinion on causation, the physician may not be retained within the meaning of Rule 26 as long as she was not retained expressly to review materials and form such an opinion.”). If that is the case, then no Rule 26 violation occurred.

The circumstances, however, indicate that Plaintiff retained Dr. Piva specifically for this litigation. While Plaintiff refers to Dr. Piva as a “treating physician,” Plaintiff saw him only once, three years after the accident. Dr. Piva did not treat Plaintiff over an ongoing period of time, but examined Plaintiff on one occasion, assessed his injuries, and set forth a proposed treatment plan. Dr. Piva’s observations are outlined in his “Consultation Report,”3 which includes the following passage that Defendant construes as an opinion on causation and seeks to bar:
Film studies, reports and diagnoses of injuries sustained in May 2013 indicate whiplash, concussion and soft tissue injuries. These injuries do not correspond with the diagnosis of injuries sustained in the motor vehicle accident that occurred in July 2013 which are presented in this report.
(Def.’s Mot. Bar, Piva Report, Dkt. # 238-3.) Because the circumstances indicate that Dr. Piva was retained, at least in part, for the purposes of litigation, and any opinion on causation was not wholly based on his percipient observation, but rather through his review of reports and films from the May 2013 accident, both his opinion on causation and the facts underlying that opinion ought to have been disclosed in a detailed Rule 26(a) expert report.4 Vill. of Bondville v. Windstream Corp., No. 13 C 2078, 2015 WL 13608437, at *4 (C.D. Ill. Apr. 13, 2015) (“Forming an opinion based on a review of documents and invoices after the fact is the province of a retained expert witness under Rule 26(a)(2)(B).”). Because the proper disclosures were not made, Dr. Piva’s opinion on causation, as construed by Defendant, is subject to automatic exclusion, unless the failure to disclose was either substantially justified or harmless. See Fed. R. Civ. P. 37(c)(1).

In its motion to bar, Defendant does not address the issues of harmlessness or substantial justification, stating only that the opinion must be excluded; as already noted, Plaintiff has not filed a response to the motion to bar. Therefore, the Court has no input from the parties on the issue. The Court has reviewed the lengthy docket, including reading relevant transcripts, and it appears that Defendant chose not to hire an expert. (7/26/16 Hr’g Tr., Dkt. # 37, at 13-14 (“The Court: Is that right, that you’re not going to utilize an expert? [Defense Counsel]: Yes. Yes. Yes.”). Because Defendant confirmed it was not hiring an expert even after Plaintiff had disclosed Dr. Piva, and Defendant had the opportunity to depose Dr. Piva, the Court finds that Plaintiff’s failure to issue a Rule 26(a) expert report by Dr. Piva was harmless. Accordingly, the motion to bar Dr. Piva’s testimony is denied.

*5 But even taking into account Dr. Piva’s purported opinion on causation, the Court finds that Plaintiff has failed to create a genuine issue of material fact whether Plaintiff’s physical injuries were caused by the July 12, 2013 accident. As noted above, the entirety of Dr. Piva’s opinion on causation is essentially that the injuries demonstrated by the film studies, reports, and diagnoses from the May 2013 accident and the July 2013 accident5 “indicate incongruent injuries and diagnoses” and that the May 2013 films and reports “do not correspond with the diagnosis of injuries…that occurred in July 2013….” (Def.’s Mot. Bar, Piva Report, Dkt. # 238-3.) These statements do not indicate causation with respect to the July 2013 accident, only that the injuries reflected in the May 2013 films and reports are different from those reflected in the July 2013 films and reports. During Dr. Piva’s deposition, Plaintiff did not question Dr. Piva about causation, focusing only on Dr. Piva’s diagnoses and treatment plan. Dr. Piva’s brief statements regarding the differences in the films and reports are insufficient to allow Plaintiff to survive summary judgment on the issue of causation regarding his alleged injuries. As noted by another court:
To…take the question of causation to the jury, non-movant’s evidence must indicate a reasonable scientific probability that the stated cause produced the stated result….When evidence raises a mere conjecture, surmise and speculation as to [causation], it is insufficient to present a question of causation to the jury.
Smith v. Gen. Motors Corp., 376 F. Supp. 2d 664, 677 (W.D. Va. 2005) (citations and quotation marks omitted). Dr. Piva’s brief and conclusory statements do not meet this standard.

Conclusion
For the reasons stated above, Defendant’s cross-motion for summary judgment is granted and Plaintiff’s motion for partial summary judgment is denied.

Date: August 12, 2019 ____________________________

Ronald A. Guzmàn

United States District Judge
All Citations
Slip Copy, 2019 WL 3776957

Footnotes

1
While Defendant contends that Dr. Riva also issued a Supplemental Report, it appears that this is simply the last page of his “Consultation Report.” During Plaintiff’s questioning of Dr. Piva at his deposition, Plaintiff asked Dr. Piva, “What is at the end of the fourth page of your consultation report?” (Def.’s Mot. Bar, Piva Dep., Dkt. # 238-4, at 11.) Dr. Piva responded that it “should be [his] signature, time, date, title, and contact information, and the name of the hospital too.” (Id.) These pieces of information are located at the bottom of the document that Defendant identifies as a separate Supplemental Report. While Defendant appears to believe that there are two reports – a three-page “Consultation Report” and a one-page Supplemental Report – it appears, based on Dr. Piva’s testimony, that there is only one report, with a section of the Consultation Report entitled “Supplemental Surgical Report.” Therefore, the Court construes Dr. Piva’s report as being contained in only one document, the “Consultation Report,” for purposes of this ruling.

2
All participants are designated in the deposition transcript as appearing “via telephone.” (Def.’s Mot. Bar, Piva Dep., Dkt. # 238-4, at 2.) Dr. Piva was in Costa Rica, Plaintiff and the court reporter appear to have been in Virginia, and Defendant’s then-counsel, Stevan Krkljes, was in Illinois. Due to technical issues with the telephone line stemming from a “volcano explosion” in Costa Rica, the second part of the deposition is disjointed and difficult to follow. (Id. at 16.) Dr. Piva also noted that his “mother language isn’t English” so “when it comes to pretty technical [or]…some other issues[,] I might have problems.” (Id. at 42.)

3
It appears from the Plaintiff’s reference to the term “percipient witness” in his Rule 26(a) disclosure that he may have intended Dr. Piva to be designated as a non-retained expert. See Guarantee Tr. Life Ins. Co. v. Am. Med. & Life Ins. Co., 291 F.R.D. 234, 237 (N.D. Ill. 2013) (stating that “a former employee may be a non-retained expert for the purposes of Rule 26(a)(2) if he is a percipient witness and is testifying based upon his personal knowledge of the facts or data at issue in the litigation.”). “Non-‘retained’ experts’ summary disclosures must contain merely ‘(i) the subject matter on which the witness is expected to present evidence under Federal Rule of Evidence 702, 703, or 705; and (ii) a summary of the facts and opinions to which the witness is expected to testify.’ ” Id. at 236 (citation omitted).

4
Guarantee Tr. Life Ins., 291 F.R.D. at 236 (“ ‘Retained’ expert witness disclosures under Rule 26(a)(2)(B) must be highly detailed to be sufficient.”)

5
It appears from Dr. Piva’s testimony that the radiological films he reviewed with respect to the July 2013 accident were taken in October 2013. (Def.’s Mot. Bar, Ex. D, Piva Dep., Dkt. # 238-4, at 26.)

2019 WL 3842003

United States District Court, E.D. Louisiana.
CIARA WILLIAMS
v.
UNITED STATES FIRE INSURANCE CO., ET AL.
CIVIL ACTION NO. 18-14000
|
08/15/2019

Janis van Meerveld, United States Magistrate Judge

SECTION: “M”(1)

ORDER AND REASONS
*1 Before the Court is the Motion for Leave to File Supplemental and Amending Answer. (Rec. Doc. 16). For the following reasons, the Motion is GRANTED in part and DENIED in part; within seven days, Defendants shall file their Amended Answer into the record without their proposed Tenth Defense.

Background
This case arises out of a motor vehicle collision that allegedly occurred on June 8, 2017. On that date, plaintiff Ciara Williams alleges that she was traveling with guest passengers in a 2017 Ford 350 and headed Westbound on Interstate 10. She says a commercial 18-wheeler owned by Cowan Systems, Inc. (“Cowan”), and driven by its employee Lorenzo Lockett, forcefully switched lanes and came into Williams’ lane of travel with full impact, violently slamming into the side of her vehicle. She says the impact caused her to be tossed about her vehicle, resulting in severe injuries to the soft tissue of her spine, her nervous system, and her psyche. She alleges she has suffered physical pain and suffering and mental and emotional anguish. She alleges she has incurred medical expenses; that she has lost past, present, and future wages; and that her earning capacity has been diminished. She alleges that she has been handicapped in her normal activities.

Williams filed a Petition for Damages on June 7, 2018, in Louisiana state court against Cowan, Lockett, and Great American Insurance Company. She later amended her petition to substitute United States Fire Insurance Company (“USFIC”) for Great American Insurance Company. In August 2018, Cowan, Locke, and USFIC (together, “Defendants”) filed an answer and denied all of Williams’ allegations except to admit that she was operating a 2017 Ford 350 at the time of the incident and that Lockett was operating a vehicle on behalf of Cowan at the time of the incident. Defendants also asserted defenses, including that Williams’ injuries were not caused by the incident (Fourth Defense); that Williams’ injuries were a result of her contributory negligence (Sixth Defense); and that the alleged accident and injuries were the result of the negligence of Williams or third parties (Seventh Defense). Defendants served Williams with discovery requests, and they say that the medical records and bills they received in response indicated that the amount in controversy is in excess of $75,000. Defendants removed the action to this court on December 19, 2018.

A scheduling order was issued and trial is set to begin on July 27, 2020. The deadline to complete discovery is March 27, 2020. The deadline to amend pleadings was July 8, 2019. On that date, the Defendants filed the present Motion for Leave to File Supplemental and Amending Answer. They report that they recently took the discovery deposition of Williams and determined that the facts of the incident at issue are similar to numerous other trucking incidents occurring in 2017. They note that the attorneys representing the remaining 12 occupants of the Ford 350 van in related lawsuits have withdrawn from their representation of the passengers. They seek to amend their Seventh Defense to add that the negligence of Williams and/or third parties are the sole and proximate cause of the accident by intentionally causing the collision, purposefully sideswiping the Cowan trailer, and an improper lane change. They also seek to add a Tenth Defense to allege the “affirmative defense of fraud,” alleging that the accident was caused by the intentional acts of Williams. In support of this defense, they allege that the accident “fits a pattern of more than 64 other known accidents that occurred on I-10 or I-510/I-610 in the New Orleans East area….” The similarities are alleged to be as follows: the driver of the passenger van claimed the tractor-trailer was changing lanes; there was an impact to the rear end of the eighteen-wheeler; the collision involved side contact closer to the rear of the trailer and across the front end into the back panel of the passenger van; the driver of the passenger van did not lose control; a third vehicle is involved either appearing on the scene immediately thereafter or flagging down the truck driver; the trucking incident occurred along the I-10 corridor in New Orleans East; and “[r]elationships and contacts between the driver and occupants of the instant accident and other similar accidents.”

*2 Williams opposes the motion. She primarily argues that the motion should be denied1 because the fraud defense fails to meet the pleading standard of Federal Rules of Civil Procedure 8 and 9. Essentially, she argues that the Court should deny leave to file the amended answer because the proposed pleadings would be futile. She argues that there is nothing suspicious about a sideswipe accident with an 18-wheeler because this is a common accident on an Interstate where there are no intersections. She cites local news articles reporting that street lights along I-10 near Morrison Road were completely or partially off and that this was contributing to accidents. She submits that defendants have failed to allege with particularity the who, what, when, where, and how of the alleged fraud. She points out that defendants refer only vaguely to her relationships with other similar accidents. She argues that even if she is Facebook friends with some of the people involved in the “64 accidents” generically referenced by the defendants, this alone should not give rise to the inference of fraud. In attempting to explain her relationship to the other passengers in the Ford 350 van, Williams explains that on the day of the accident as a kind gesture she offered to transport the other passengers in the van to a casino. She set three locations for pickup. She says she did not obtain any payment except for gas money. Williams argues that defendants’ allegations harm her reputation. She insists the pleading is nothing more than a fishing expedition. She points out that Judge Vance in Thomas v. Chambers, held that a fraud claim against alleged car accident victims was not legally cognizable because defendants could not allege justifiable reliance on the alleged fraudulent misrepresentations. Civ. A. No. 18-4373, Order and Reasons, ECF # 20 (E.D. La. Feb. 7, 2019). Williams also complains that defendants improperly invoke the withdrawal of the attorney for the other passengers from representation as support for their amended answer. Williams represents that the other attorney withdrew due to health issues.

Law and Analysis

1. Standard for Pleading Amendments
Pursuant to Federal Rule of Civil Procedure 15(a)(2), when the time period for amending a pleading as a matter of course has passed, a party may amend its pleadings by consent of the parties or by leave of court. “The court should freely give leave when justice so requires.” Fed. R. Civ. Proc. 15(a)(2). Thus, the United States Court of Appeals for the Fifth Circuit instructs that the “district court must possess a ‘substantial reason’ to deny a request for leave to amend.” Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004). Nonetheless, “that generous standard is tempered by the necessary power of a district court to manage a case.” Yumilicious Franchise, L.L.C. v. Barrie, 819 F.3d 170, 177 (5th Cir. 2016) (quoting Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 566 (5th Cir. 2003)). The court may consider numerous factors when deciding whether to grant a motion for leave to amend, including “undue delay, bad faith or dilatory motive on the part of the movant, repeated failures to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, and futility of the amendment.” Schiller, 342 F.3d at 566.

Because defendants sought leave to file their amended answer and counterclaim within the court ordered deadline for such amendments, Rule 15 applies here. The proposed amendment can only be denied for a substantial reason. Williams does not argue that defendants have unduly delayed filing the amendment or that she would suffer undue prejudice if the amendment was allowed. Indeed, trial is not until June 2020 and the parties have until the end of March 2020 to complete discovery. And Williams has been on notice since August 2018 of Defendants’ intent to argue that her injuries were not caused by the incident (Fourth Defense) and that Williams or third parties were responsible for the accident and injuries alleged (Sixth and Seventh Defenses). Further, Defendants have not repeatedly failed to cure deficiencies in their defenses. It is uncontested that these factors weigh in favor of allowing the amendment. Instead, Williams’ argument challenges the sufficiency of the defendants’ proposed defenses. Essentially, she argues that the motion should be denied as futile.

2. Futility
It is within the Court’s discretion to deny a motion to amend if it is futile. Stripling v. Jordan Prod. Co., 234 F.3d 863, 873 (5th Cir. 2013). In determining whether a new claim is futile, the court considers whether the amended complaint would survive a Rule 12(b)(6) motion to dismiss. Stripling v. Jordan Prod. Co., LLC, 234 F.3d 863, 872–73 (5th Cir. 2000). In the case of an affirmative defense, then, a motion for leave to amend is futile if the affirmative defense would not survive a motion to strike under Rule 12(f). The court notes that in some cases, courts have held that the issue of futility is better addressed not in consideration of the motion for leave to amend, but by a subsequent dispositive motion. E.g., Tripp v. Pickens, No. 17-CV-0542, 2018 WL 3059614, at *3 (W.D. La. June 20, 2018) (“The court’s ability to decide the viability of the claims at issue will benefit from full briefing within the context of a motion that is devoted to the substantive issues.”); Reyes v. Topgolf Int’l, Inc., No. 3:17-CV-0883-L-BH, 2018 WL 704734, at *4 (N.D. Tex. Feb. 5, 2018) (“The issue of futility, however, is better addressed ‘in the context of a Rule 12(b)(6) or Rule 56 motion, where the procedural safeguards are surer.’ ”).

*3 As to the pleading standard, Federal Rule of Civil Procedure 8(b) requires defenses be stated in “short and plain terms.” Affirmative defenses2 must be stated affirmatively. Fed. R. Civ. P. 8(c). The Fifth Circuit has held that “[a]n affirmative defense is subject to the same pleading requirements as is the complaint.” Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999). The defendant “must plead an affirmative defense with enough specificity or factual particularity to give the plaintiff ‘fair notice’ of the defense that is being advanced.” Id. In that same case, the court of appeals observed that “in some cases, merely pleading the name of the affirmative defense …may be sufficient.” Id.; see Am. Motorists Ins. Co. v. Napoli, 166 F.2d 24, 26 (5th Cir. 1948) (holding that under Rule 8, the affirmative defense contributory negligence is sufficiently plead if the defendant “simply states that complainant was guilty of contributory negligence”).

In the case of fraud, Federal Rule of Civil Procedure 9(b) requires that “[i]n alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake.” “This Circuit’s precedent interprets Rule 9(b) strictly, requiring the plaintiff to ‘specify the statements contended to be fraudulent, identify the speaker, state when and where the statements were made, and explain why the statements were fraudulent.’ ” Flaherty & Crumrine Preferred Income Fund, Inc. v. TXU Corp., 565 F.3d 200, 207 (5th Cir. 2009) (quoting Williams v. WMX Techs., Inc., 112 F.3d 175, 177 (5th Cir. 1997)). “Although scienter may be ‘averred generally,’ case law amply demonstrates that pleading scienter requires more than a simple allegation that a defendant had fraudulent intent. To plead scienter adequately, a plaintiff must set forth specific facts that support an inference of fraud.” Tuchman v. DSC Commc’ns Corp., 14 F.3d 1061, 1068 (5th Cir. 1994). This standard “ensures the complaint ‘provides defendants with fair notice of the plaintiffs’ claims, protects defendants from harm to their reputation and goodwill, reduces the number of strike suits, and prevents plaintiffs from filing baseless claims then attempting to discover unknown wrongs.’ ” U.S. ex rel. Grubbs v. Kanneganti, 565 F.3d 180, 190 (5th Cir. 2009) (quoting Melder v. Morris, 27 F.3d 1097, 1100 (5th Cir. 1994)).

In Defendants’ proposed amended Seventh Defense, they seek to add the following to the list of particular ways that the negligence of Williams or third parties allegedly caused the accident: “intentionally causing the subject incident/collision,” “purposefully sideswiping the Cowan trailer,” and “improper lane change.” These defenses do not assume that the allegations in Williams’ petition are true. They challenge the causation element of plaintiffs’ claim. They are more properly characterized as defenses, and not affirmative defenses. Even if characterized as affirmative defenses, like the affirmative defense of contributory negligence, Defendants’ proposed allegations provide Williams fair notice of how they intend to defend her claim for damages. Defendants’ proposed amendment to their Seventh Defenses meets the pleading standard and the amendment is not futile.

*4 Defendants describe their proposed Tenth Defense as the “affirmative defense of fraud.” Defendants assert that Williams intentionally caused the accident. They cite ways in which this accident is similar to other trucking accidents. They note that some of these other cases have been stayed pending a criminal investigation. But they provide no specific facts to support their theory that Williams intentionally caused the accident at issue in this case. When asserting an affirmative defense of fraud, the defendants’ allegations must meet the heightened pleading standard of Rule 9(b). Their generic recitation of similarities to other accidents without any specific facts concerning Williams does not support an inference of fraudulent intent. The proposed Tenth Defense fails to meet the pleading standard required to assert the affirmative defense of fraud. Accordingly, as to this proposed amendment, Defendants’ motion is futile.

Conclusion
For the foregoing reasons, the Motion for Leave to Amend is GRANTED in part and DENIED in part; Defendants shall be allowed to file their Amended Answer into the record with their proposed changes to the Seventh Defense, however, the Amended Answer may not include the proposed Tenth Defense. Within seven days, Defendants shall file their Amended Answer into the record without the Tenth Defense.
New Orleans, Louisiana, this 15th day of August, 2019. Janis van Meerveld

United States Magistrate Judge
All Citations
Slip Copy, 2019 WL 3842003

Footnotes

1
Williams seems to argue that the motion for leave to amend should be denied and that the amended answer should be “dismissed with prejudice.” The proposed amended answer cannot be dismissed with prejudice before it is in the record. Moreover, once it is entered into the record, the proper mechanism to challenge the sufficiency of the defenses would be by filing a motion to strike under Rule 12(f).

2
“An affirmative defense ‘raises a new matter, which assuming the allegations in the petition are true, constitutes a defense to the action.’ ” LSREF2 Baron, L.L.C. v. Tauch, 751 F.3d 394, 398 (5th Cir. 2014). (quoting Bienvenu v. Allstate Ins. Co., 2001-2248 (La. App. 4 Cir. 5/8/02), 819 So. 2d 1077, 1080) (internal citation omitted); Black’s Law Dictionary (11th ed. 2019) (defining “affirmative defense” as “defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s or prosecution’s claim, even if all the allegations in the complaint are true.”).