Delayed Ambush via Late Amendment Not Allowed, Court Says

• Pages: 19-19
• Date: 01 October 2022
• Author: Nhan T. Ho
• Subject Matter: Derecho Civil

mendments to pleadings should be freely given but

might not be free. In Burton v. Ghosh, the U.S.

Court of Appeals for the Seventh Circuit rejected

the defendants’ new afrmative defense submit-

ted in response to a late-led, non-substantive

pleadings amendment by the plaintiff. ABA Litigation Section

leaders concur with the holding in Burton and note its impor-

tance as practical guidance on the need for due diligence to

avoid too little, too late afrmative defenses.

Burton v. Ghosh involved two lawsuits by an inmate

against his prison’s healthcare providers for delayed treat-

ments resulting in permanent knee damage. After the rst

lawsuit was dismissed with prejudice, the plaintiff led a

second with identical claims. After the close of discovery, the

plaintiff made minor amendments to his complaint to clarify

some factual allegations and emphasize the treatment delays.

In response, the defendants moved to dismiss based on res

judicata, arguing preclusion by the rst lawsuit, which was

dismissed with prejudice.

The court granted the defendants’ motion, rejecting the

plaintiff’s argument that the defendants had waived or for-

feited the res judicata defense. Rather, the court concluded

that the plaintiff opened the door to this defense when he

led his late pleading amendment. The court believed that

it was required to allow the new defense under Massey v.

Helman, which found an afrmative defense of failure to

exhaust administrative remedies not waived or forfeited

when asserted following an amendment that substantially

changed the case by adding a new party and recovery theory.

On appeal, the Seventh Circuit found Massey distinguish-

able and reversed. Unlike in Massey, “the amended complaint

[in Burton] did not change the theory or scope of the case in

a way relevant to the new defense.” Considering the circum-

stances of the case and the prejudice to the plaintiff caused

by the defendants’ untimely defense, the Seventh Circuit held

it would be an abuse of discretion to allow the defense.

Litigation Sec tion leaders believe the S eventh Circuit got

it right in Burton. “The rea son the Ghosh defendants were

late in asserti ng the afrmative defense is t hat nothing about

the amendment to the c omplaint affe cted the applicability of

the afrmative defense,” explains Paula M. Bagger, Bos ton,

MA, coch air of the Sec tion’s Commercial & Busine ss

Litigation Comm ittee. “Res judicata either was or was not

a good defense from the b eginning. That had not been t he

case in Masse y.”

Had the Seventh Circuit allowed the Burton defendants

to amend, “the late introduction of res judicata—especially

after discovery—would prejudice Burton to a large degree,”

observes Tiffany Rowe, cochair of the Section’s Professional

Liability Litigation Committee. “Rule 15 is not meant to

allow revisions to argument at any time; the opposing party

must be given adequate notice of a claim or afrmative

defense, and that did not happen here,” she states.

Any other outcome would create unnecessary complica-

tions, suggests Michael S. LeBoff, cochair of the Section’s

Professional Liability Litigation Committee. “It could poten-

tially inject chaos into cases if defendants can assert any and

all afrmative defenses on even the slightest amendment to a

complaint,” he suggests. “It would potentially require courts

to vacate trial dates and reopen discovery should defendants

assert new substantive afrmative defenses late in a case after

a non-substantive amendment,” he adds.

The Burton defendants claimed they had just learned

about the rst lawsuit a few days before asserting their res

judicata defense. But the court “relied on several places in

the case record where the existence of the rst lawsuit is

disclosed,” notes Bagger. “And defendants learned of the

previous case at several points, including during Burton’s

deposition testimony in 2015, which was three years before

the res judicata defense was raised,” agrees Rowe. “It is at

this point that it undoubtedly becomes the responsibility of

counsel to perform their due diligence to identify any prior,

related cases,” Rowe advises.

Plaintiffs should be cautious in amending to avoid the risk

of opening the door to new defenses. The Burton plaintiff

did not assume this risk in amending his complaint six years

into the case, “because, as the court noted, he did not funda-

mentally alter claims,” says Rowe. However, “in future cases,

plaintiffs need to recognize the possibilities that late amend-

ments to the case may give their opponents an opportunity

to assert new defenses, depending on the signicance of the

amendments to the complaint,” LeBoff opines.

RESOURCES

Joseph V. Schaeer, “Develop the Theory Up Front: Proposed

Amendment Fails to Defeat Summary Judgment,” Pretrial Prac. &

Discovery (Aug . 30, 2019).

Dimitri DeChurch-Silva, “Know Your Rules: Adding or Dropping

Parties under the Rule of Civil Procedure,” Pretrial Prac. &

Discovery (July 3 1, 2019).

Harris v. Secretary, U.S. Dep’t of Veterans Aairs, 126 F.3d 339 (D.C.

Cir. 1997).

Delayed Ambush via Late

Amendment Not Allowed, Court Says

By Nhan T. Ho, Litigation News Contributi ng Editor

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Published in Litigation News Volume 48, Number 1, Fall 2022 . © 2022 by the American B ar Association. Repr oduced with permis sion. All rights rese rved. This informa tion or any portion th ereof may not be cop ied or disseminated in any for m

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