Delayed Ambush Via Late Amendment Cannot Be Allowed, Court Says

Amendments 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 addressed how a trial court should exercise its discretion under the Federal Rules of Civil Procedures when faced with parties’ late amendments. ABA Litigation Section leaders concur with the holding in Burton and note its important practical guidance as to the need for due diligence to avoid "too little, too late" amendments.

Late Amendment Does Not Automatically Lead to Late Assertion of Affirmative Defenses

Burton v. Ghosh involved two lawsuits by a state inmate against his prison’s healthcare providers for delayed treatments resulting in permanent knee damage. After the first lawsuit was dismissed with prejudice, the plaintiff filed the second with identical claims. The lawsuit was docketed under a new action assigned to a different judge. 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 for dismissal based on res judicata, arguing preclusion by the first lawsuit that was dismissed with prejudice.

The court granted the defendant’s motion. The court rejected the plaintiff’s arguments that the defendants waived or forfeited the res judicata defense, which, reasoned the court, became available after the plaintiff opened the door with his late amendment. The court believed that it was required to allow the new defense under the Seventh Circuit’s opinion in Massey v. Helman, which found an affirmative 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.