United States District Court, E.D. Michigan, Southern Division
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
D. BORMAN, UNITED STATES DISTRICT JUDGE
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).
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.)
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:
(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
(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.)
opposed the amendment and Defendant Marrocco thereafter filed
the instant motion for leave to file the same. (ECF No. 13.)
STANDARD OF REVIEW
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).
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 ...