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Mauro v. County of Macomb

United States District Court, E.D. Michigan, Southern Division

October 27, 2016

SIMONE MAURO, Plaintiffs,
v.
COUNTY OF MACOMB, ET AL., Defendants.

          OPINION AND ORDER GRANTING DEFENDANT ANTHONY MARROCCO IN HIS INDIVIDUAL CAPACITY'S MOTION SEEKING LEAVE TO FILE SECOND AMENDED STATEMENT OF SPECIAL AND/OR AFFIRMATIVE DEFENSES

          PAUL D. BORMAN, UNITED STATES DISTRICT JUDGE

         Now before the Court is Defendant Anthony Marrocco in his individual capacity's Motion for Leave to File a Second Amended Statement of Special and/or Affirmative Defenses. (ECF No. 13.) Plaintiff filed an “objection” to the request but Defendant Marrocco did not file a reply. (ECF No. 14.) The Court has determined there is no need for oral argument and will decide the matter based on the parties' briefs. E.D. Mich. LR 7.1(f).

         This action was removed to this Court by Defendants on April 28, 2016. (ECF No. 1.) Plaintiff asserts that Defendant County of Macomb and Defendant Anthony Marrocco, in his individual and official capacity as Macomb County's Public Works Commissioner, violated a number of his constitutionally protected rights, including inter alia rights protected under the Equal Protection Clause and the First Amendment, pursuant to 42 U.S.C. § 1983. (ECF No. 1, Ex. A, Compl.) Plaintiff also alleges claims of false imprisonment and intentional infliction of emotional distress pursuant to Michigan law. (Id.) Plaintiff's claims all appear to arise from allegations that Defendant Marrocco misused his position and influence as a Public Works Commissioner in relation to an ongoing investment dispute with Plaintiff which ultimately resulted in Plaintiff being jailed for contempt in a state civil action. (See Compl. ¶¶ 46-47, 55.)

         Defendant Marrocco, in his individual capacity, filed an Answer to the Complaint on May 18, 2016. (ECF No. 4.) Thereafter, on May 31, 2016, he filed an Amended Answer. (ECF No. 7.) Then in July 2016, Defendant Marrocco sought concurrence with Plaintiff's counsel to file a second amended answer to add three new affirmative defenses:[1]

(66) Plaintiff's claims against Defendant Marrocco are barred by the application of governmental immunity provided by state law.
(67) Defendant Marrocco is absolutely immune from state tort claims.
(68) Plaintiff's claim under federal law is barred by the application of qualified immunity or other immunity provided by federal law.

(Def.'s Br., Ex. 1, Proposed Second Am. Statement of Special and/or Affirmative Defenses.)

         Plaintiff opposed the amendment and Defendant Marrocco thereafter filed the instant motion for leave to file the same. (ECF No. 13.)

         I. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 15(a) states that leave to amend is “freely” granted “when justice so requires.” Fed.R.Civ.P. 15(a). Generally “a failure to plead an affirmative defense, like statute of limitations, results in the waiver of that defense and its exclusion from the case.” Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994). However, there are exceptions to this “broad rule, ” significantly that an answer may be amended pursuant to Rule 15(a). Id. (citation omitted). “Simply put, Rule 15(a) allows a party to amend his pleading to assert an omitted affirmative defense.” Id. Yet, a court need not grant leave to amend when the proposed amendment would be futile, result in undue dely, or is brought in bad faith. See Murphy v. Grenier, 406 F. App'x 972, 977 (6th Cir. 2011).

         “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000) (citation omitted).

Of course, 12(b)(6) motions are made with reference to complaints and not affirmative defenses; but the same basic standard applies. The court must determine whether the defendants' allegations raise the merits of the defense above a speculative level, or put differently, whether, assuming the truth of the defendants' allegations regarding the defense, it nevertheless would fail.

Gore v. El Paso Energy Corp. Long Term Disability Plan, No. 3:02-1008, 2008 WL 361258, at * 6 (M.D. Tenn., Feb. 8, 2008) (citing State Mut. Life. Assur. Co. v. Deer Creek Park, 612 F.2d 259, 270 (6th Cir. 1974) and Campania Management Co. Inc. v. Rooks, Pitts & Poust, 290 F.3d 843, 850 (7th Cir. 2002) (holding that a proposed affirmative defense “is futile if it sets forth facts or legal theories that are ...


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