Amended Complaint

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7^th Circuit Court of Appeals

Case Name: Alnoraindus Burton v. Partha Ghosh, et al.,

Case No.: 19-1360

Officials: WOOD, Chief Judge, and HAMILTON and SCUDDER, Circuit Judges.

Focus: Amended Complaint

Almost seven years into this lawsuit, after discovery had closed and with a summary judgment deadline looming, defendants raised the affirmative defense of res judicata for the first time, in an unexpected motion to dismiss an amended complaint. When plaintiff responded that the defense had been waived or forfeited, defendants argued that our opinion in Massey v. Helman, 196 F.3d 727 (7^th Cir. 1999), requires a district court to allow any and all new affirmative defenses whenever a plaintiff amends a complaint in any way. The district court agreed and granted defendants’ motion to dismiss.

We reverse and remand. The standard for amending pleadings under Federal Rules of Civil Procedure 8(c) and 15 continues to govern the raising of new affirmative defenses even when an amended complaint is filed. Massey held that a defendant is entitled to add a new affirmative defense prompted by an amended complaint that changes the scope of the case in a relevant way. Massey does not, however, require a district court to allow any and all new defenses in response to any amendment to a complaint, without regard for the substance of the amendment and its relationship to the new defenses. Rather, a district court must exercise its sound discretion under Rules 8 and 15 in deciding whether to allow the late addition of a new affirmative defense. In this case, the late amendment to the complaint was minor and did not authorize a new res judicata defense that had been waived or forfeited years earlier.

Reversed and remanded

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.