Come on -- you know that is the first thing on your mind this morning.
Luckily, Judge Scola provides the answer:
In order to raise the two new defenses, then, Commonwealth must demonstrate “good cause” for leave to amend under Rule 16(b), which requires a showing of diligence. See Sosa, 133 F.3d at 1418. As to the mitigation affirmative defense, Commonwealth contends that leave to amend should be allowed because the defense was not available until June 4, 2012, when Regions declined Commonwealth’s April 17, 2012 offer to defend and provide coverage under a reservation of rights. This Court disagrees. Commonwealth’s duty to defend and indemnify Regions in the state court suit goes to the heart of this litigation. Under such circumstances, a failure to mitigate defense should have been reasonably obvious to Commonwealth the minute that Regions declined its offer, if not before that time. Indeed, it might have been a reasonably anticipatory defense even as early as April, when Commonwealth tendered the offer. Yet, Commonwealth waited an additional three-and-a-half months after Regions refused the offer before requesting leave to amend. Such conduct does not evince diligence.The idea that a defense is a pure "legal defense" also doesn't wash:
As to the contract illegality affirmative defense, Commonwealth merely argues that it should be allowed to amend because it is “a pure legal defense.” Mot. at 6. But to admit as much dooms Commonwealth’s request. Commonwealth does not even attempt to explain why it did not knowabout, or assert, this defense from the get-go. As “a purely legal defense,” Commonwealth could be expected to assert it at the time it originally answered Regions’s Complaint in April, not some five months later. So the Court finds that here, too, Commonwealth has failed to show the diligence required by Rule 16(b).Oh well -- hope you didn't really need these defenses to defend the case.