Friday, December 16, 2011

Another "Teachable Moment."



What happens when a crucial affirmative defense of your client is "not reflected in the docket"?

What happens when it is your responsibility to make sure the affirmative defense is "reflected in the docket" -- i.e., filed?

What happens when this all takes place before Judge Seitz?

You've just bought yourself a "teachable moment":
Defendant moves for reconsideration on the grounds that Plaintiff has known about Defendant's intent to assert the Motor Carrier exemption since May 25, 2011.  At that time, Defendant sent Plaintiff an email with attachments containing a Motion for Leave to Amend its Answer and Affirmative Defenses and a Proposed Am ended Answer and Affirmative Defenses. Defendant, however, never filed the Motion for Leave to Amend. In the Motion for Reconsideration, Defendant states that the Motion for Leave to Amend and the Proposed Amended Answer and Affirmative Defenses "are not reflected in this Court's docket.'' There is only one reason for that - Defendant did not file them. In the Motion for Reconsideration, Defendant states that it has "discovered that its Motion for Leave to Amend and its proposed Amended Answer and Affirmative Defenses are not reflected in this Court's docket, and that there was never a ruling on the issue.'' See DE-75 (emphasis added). What Defendant fails to acknowledge is that it had a responsibility to monitor the docket in this matter and to be aware of the proceedings in this case. At the latest, Defendant should have discovered its failure to file the Motion to Amend when Defendant prepared its motion for summary judgment in August 201 1. If Defendant discovered its failure then, it did nothing to correct it. Defendant's recent discovery of its failure to file a motion, that was to be filed in May, is inexcusable and Defendant has not offered any reason why it failed to discover this sooner.
 She wound up letting them amend their answer and assert the affirmative defense anyway.

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