United States District Court, D. Connecticut
RULING ON DEFENDANT'S MOTION TO AMEND
F. Martinez, United States Magistrate Judge
plaintiff, Elisabeth Presumey, brought this employment
discrimination action against the Board of Education for the
Town of Greenwich, Connecticut, alleging that it failed to
accommodate her disability in violation of the Americans with
Disabilities Act ("ADA"), 42 U.S.C. § 12101
et seq. and Connecticut Fair Employment Practices
Act ("CFEPA"), Conn. Gen. Stat. § 46a-51
et seq. After trial, a jury returned a verdict in
the plaintiff's favor. Pending before the court is the
defendant's motion for leave pursuant to Fed.R.Civ.P.
15(b) to amend its answer to assert the affirmative defenses
of failure to mitigate and set-off. (Doc. #100.) The motion
parties agreed that damages and fees would be decided by the
court if the jury found liability in favor of the plaintiff.
(Doc. #77, tr. at 140, 143.) Following that agreement, after
the jury returned a verdict in favor of the plaintiff, the
court scheduled an evidentiary hearing on damages for May 3,
2018.(Doc. #83.) In anticipation of the hearing,
the defendant filed the instant motion.
to mitigate damages is an affirmative defense and therefore
must be pleaded." Travellers Int'l, A.G. v.
Trans World Airlines, Inc., 41 F.3d 1570, 1580 (2d Cir.
1994). "The general rule in federal courts is that a
failure to plead an affirmative defense results in a
Rule of Civil Procedure 15 governs amendment of pleadings.
Rule 15 gives the court discretion to allow amendments
before, during, and after trial. Leave should be 'freely
given.'" United States v. City of New York,
847 F.Supp.2d 395, 428 (E.D.N.Y. 2012). Rule 15(b) is
"intended to promote the objective of deciding cases on
their merits rather than in terms of the relative pleading
skills of counsel . . . ." 6A C. Wright, et al.,
Federal Practice and Procedure § 1491 at 6 (3rd
The Second Circuit has stated that a court should allow leave
to amend a pleading unless the non-moving party can establish
prejudice or bad faith. AEP Energy Servs. Gas Holding Co.
v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010)
(quoting Block v. First Blood Assocs., 988 F.2d 344,
350 (2d Cir. 1993)). Motions to amend are ultimately within
the discretion of the district courts, Foman, 371
U.S. at 182, 83 S.Ct. 227, and they should be handled with a
"strong preference for resolving disputes on the
merits." Williams v. Citigroup Inc., 659 F.3d
208, 212-13 (2d Cir. 2011) (quoting New York v.
Green, 420 F.3d 99, 104 (2d Cir. 2005)) (internal
quotation marks omitted).
Summit Health, Inc. v. APS Healthcare Bethesda,
Inc., 993 F.Supp.2d 379, 403 (S.D.N.Y. 2014),
aff'd sub nom. APEX Employee Wellness
Servs., Inc. v. APS Healthcare Bethesda, Inc., No.
14-3191, 2018 WL 672419 (2d Cir. Feb. 1, 2018).
defendant argues that the court should grant its motion
because "permitting evidence of failure to mitigate and
set-off will aid the Court in its determination of the proper
damages to award plaintiff so as not to permit Plaintiff to
receive a double recovery . . . ." (Doc. #100 at 1.) The
plaintiff objects. (Doc. #102.) The plaintiff first asserts
that the motion should be denied because the defendant has
not "explain[ed] its delay in seeking to raise the
proposed affirmative defenses." (Doc. #102 at 1-2.)
Notwithstanding the delay, the plaintiff does not suggest
that she will suffer any prejudice whatsoever if the
amendment is permitted. To the contrary, the record reflects
that she anticipated these defenses - the defendant points
out that the plaintiff's damages analysis, which she
served on the defendant, recognized that certain sums were to
be deducted from any damages award. (Doc. #101, Ex. A.)
Under Fed.R.Civ.P. 15(b), a district court may consider
claims outside those raised in the pleadings so long as doing
so does not cause prejudice. . . . In opposing a Rule 15(b)
amendment, a party cannot normally show that it suffered
prejudice simply because of a change in its opponent's
legal theory. Instead, a party's failure to plead an
issue it later presented must have disadvantaged its opponent
in presenting its case.
DiMare Homestead, Inc. v. Alphas Co. of New York,
547 F. App'x 68, 70 (2d Cir. 2013)(quotation marks and
citations omitted.) "Mere delay, however, absent a
showing of bad faith or undue prejudice, does not provide a
basis for a district court to deny the right to amend."
State Teachers Retirement Board v. Fluor Corp., 654
F.2d 843, 856 (2d Cir. 1981). Therefore, this objection does
not warrant denial of the defendant's motion.
plaintiff next argues that the motion should be denied
because "the proposed affirmative defenses are
insufficient as a matter of law [in that] neither . . .
states any factual basis for the legal conclusion pled
therein." (Doc. #102 at 2.) The plaintiff goes on to
state that "[t]he requirement that sufficient facts be
pled to demonstrate a 'plausible' basis for the claim
is the standard for all pleadings." (Doc. #102 at 2.)
This argument is inapposite. "Although there has been
much discussion regarding the applicability of the
plausibility standard set forth in Bell Atlantic
Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft
v. Iqbal, 556 U.S. 662 (2009), to affirmative defenses,
. . . the majority of district courts . . . have determined
that the plausibility standard does not apply to affirmative
defenses. See Sibley v. Choice Hotels,
Int'l, Inc., 304 F.R.D. 125, 133 (E.D.N.Y. 2015)
(collecting cases)." White v. Fein, Such &
Crane, LLP, No. 15-CV-438V(SR), 2018 WL 955903, at *1
(W.D.N.Y. Feb. 20, 2018). See 273 Lee Ave. Tenants
Association by Sanchez v. Steinmetz, No. 16CV6942WFKCLP,
2017 WL 6383960, at *1 (E.D.N.Y. Nov. 16, 2017)("The far
majority of district courts in this Circuit have held that
the Twombly/Iqbal pleading standard does
not apply to affirmative defenses, " and require only
that a defendant "'affirmatively state' an
these reasons, the defendant's motion is granted. The
defendant shall electronically file the ...