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Litigation News

Litigation News | 2021

Delayed Ambush via Late Amendment Cannot Be Allowed, Court Says

Nhan Ho


  • Decision clarifies rules on amendments of pleadings.
Delayed Ambush via Late Amendment Cannot Be Allowed, Court Says
Iryna Veklich via Getty Images

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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.

On appeal, the Seventh Circuit found Massey distinguishable: 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.” Consequently, the district court had the discretion under Rules 8 and 15 to decide if the new affirmative defense could be asserted following the plaintiff’s amendment. Considering the circumstances of the case and the prejudice to plaintiff caused by the defendants’ untimely defense, the Seventh Circuit found that it would be an abuse of discretion to allow defendants to raise the defense on remand.

A Logical Outcome

Litigation Section leaders agree that the Seventh Circuit arrived at the correct decision in Burton. “The district court misread Massey,” opines Paula M. Bagger, cochair of the Section’s Commercial & Business Litigation Committee. “The reason the Ghosh defendants were late in asserting the affirmative defense is that nothing about the amendment to the complaint affected the applicability of the affirmative defense,” she explains. “Res judicata either was or was not a good defense from the beginning. That had not been the case in Massey.”

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

Any other outcome would create unnecessary complications, offers Michael S. LeBoff, cochair of the Section’s Professional Liability Litigation Committee. “It could potentially inject chaos into cases if defendants can assert any and all affirmative defenses on even the slightest amendment to a complaint,” he suggests. “It would potentially require courts to vacate trial dates and re-open discovery should defendants assert new substantive affirmative defenses late in a case after a non-substantive amendment,” he adds.

The Importance of Due Diligence

The defendants in Burton claimed that they had just learned about the first lawsuit a few days before asserting their res judicata defense. Nonetheless, Section leaders agree that the defendants had enough notice to raise this defense earlier. The court “relied on several places in the case record where the existence of the first lawsuit is disclosed,” notes Bagger. Besides the fact that the existence of the first lawsuit was a matter of public record, “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.

Burton highlights the importance of due diligence, according to 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,” she advises. In short, the outcome in Burton “emphasizes the importance to investigate the facts and potential defenses early in the case,” adds LeBoff.

Implications of Late Amendments

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 amending his complaint six years into the case, “because, as the court noted, he did not fundamentally alter claims,” says Rowe. However, “in future cases, plaintiffs need to recognize the possibilities that late amendments to the case may give their opponents an opportunity to assert new defenses, depending on the significance of the amendments to the complaint,” LeBoff opines.