United States District Court, E.D. Tennessee, Chattanooga Division
MEMORANDUM AND ORDER
SUSAN K. LEE, Magistrate Judge.
Before the Court is Defendants' motion for leave to amend their answer [Doc. 49], as well as Defendants' proposed amended answer [Doc. 49]. Plaintiffs have filed a response in opposition to Defendants' motion [Doc. 56]. Defendants have not filed any reply, and this matter is now ripe. As set forth herein, Defendants' motion to amend [Doc. 49] will be GRANTED IN PART and DENIED IN PART.
This matter is a negligence action arising out of a motor vehicle accident involving two tractor-trailer trucks. According to the complaint, Plaintiff Seth Ross was the driver of one of the tractor-trailer trucks and Defendant Frank Kopocs was the driver of the other. Plaintiff Seth Ross and his wife, Plaintiff Eliza Ross, brought this action against Defendant Kopocs and his employer, Defendant Covenant Partners Transportation, Inc., alleging that Defendant Kopocs's negligence in operating his vehicle caused the collision of the two tractor-trailer trucks. Plaintiffs allege that Defendant Kopocs was negligent in improperly stopping his tractor-trailer truck on the shoulder of I-75 for a non-emergency reason; failing to warn traffic with appropriate hazard warning lights and other lights on his vehicle; failing to observe the vehicle operated by Plaintiff Seth Ross that was traveling behind him on the interstate before he pulled out from the shoulder onto the interstate; failing to yield the right of way to the vehicle being operated properly by Plaintiff Seth Ross on the interstate; and failing to exercise due care in operating the tractor-trailer truck. Plaintiffs also allege that Defendant Kopocs violated various Tennessee traffic laws, which Plaintiffs contend constitute negligence per se . Plaintiffs allege that Defendant Covenant Partners Transportation, Inc. is liable under the doctrine of respondeat superior as the employer of Defendant Kopocs. Plaintiff Seth Ross seeks to recover damages for his injuries, past and future medical bills, pain and suffering, and lost wages. Plaintiff Eliza Ross seeks to recover for loss of consortium.
In their motion, Defendants state that they are seeking to amend their answer "in order to remove reference to independent contractor and contractor contained in Paragraphs 4 and 11 in order to refer to an employer/employee relationship and to add the affirmative defenses referred to as paragraphs 19 and 20...." [Doc. 49 at Page ID # 178]. Defendants seek to include the affirmative defense of spoliation of evidence with regard to Plaintiff Seth Ross's driver log book and the commercial truck Plaintiff Seth Ross was driving at the time of the collision.
In their response, Plaintiffs state that they have no objection to Defendants' proposed amendments that would acknowledge the employer/employee relationship between Defendants, but Plaintiffs do object to the proposed amendments which would assert the affirmative defense of spoliation of evidence. Plaintiffs contend that Defendants should not be permitted to assert this defense because Plaintiffs did not refuse or fail to produce the log book and the tractor-trailer truck driven by Plaintiff; rather, these items could not be produced because the log book was located inside the tractor-trailer truck, which was removed to a location that was unknown to Plaintiffs until recently. Plaintiffs state that the location of the tractor-trailer truck has now been discovered, and the parties have made arrangements to inspect and examine it. Plaintiffs contend that under these circumstances, there can be no assertion that Plaintiffs have intentionally attempted to hide or destroy evidence in this case. Plaintiffs contend that Defendants were aware that Plaintiffs did not have the log books based upon Plaintiff Seth Ross's deposition. Plaintiffs further contend that Defendants' attempt to assert a spoliation of evidence defense against Plaintiff Seth Ross's employer is improper because his employer is not a party to the action. Plaintiffs' final argument is that spoliation of evidence is not an "affirmative defense" to be raised in an answer to the complaint.
Under the Federal Rules, a party's response to a pleading (including a defendant's answer to the complaint) is required to affirmatively state any avoidance or affirmative defense. Fed.R.Civ.P. 8(c). "Failure to plead an affirmative defense in the first responsive pleading to a complaint generally results in a waiver of that defense." Horton v. Potter, 369 F.3d 906, 911 (6th Cir. 2004) (citing Haskell v. Washington Twp., 864 F.2d 1266, 1273 (6th Cir. 1988)). However, the "failure to raise an affirmative defense by responsive pleading does not always result in waiver of the defense, " such as where the plaintiff has received notice of the affirmative defense by some other means or where amendment is permitted under Rule 15(a). Seals v. Gen. Motors Corp., 546 F.3d 766, 770 (6th Cir. 2008) (citing Fed.R.Civ.P. 15(a)). "Rule 15(a) allows a party to amend his pleading to assert an omitted affirmative defense." Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994).
A party may amend his pleading "only with the opposing party's written consent or the court's leave, " which should be "freely give[n]" "when justice so requires." Fed.R.Civ.P. 15(a); see also In re Polyurethane Foam Antitrust Litig., 998 F.Supp.2d 625, 641 (N.D. Ohio 2014). While leave to amend should be freely given, it is appropriate for courts to deny leave to amend "in instances of undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.'" Glazer v. Chase Home Finance LLC, 704 F.3d 453, 458 (6th Cir. 2013) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). When analyzing the futility of a proposed amendment, the court uses the same analysis for a motion to dismiss under Rule 12(b)(6), and matters outside the pleadings may not be considered. See Rose v. Hartford Underwriters Ins. Co., 203 F.3d 417, 420 (6th Cir. 2000); Fed.R.Civ.P. 12(d). "The determination of whether the circumstances of a case are such that justice would require the allowance of an amendment to an answer is left to the sound discretion of the district court...." Estes v. Kentucky Utilities Co., 636 F.2d 1131, 1133 (6th Cir. 1980).
As noted above, Plaintiffs make several arguments as to why Defendants should not be permitted to amend their answer to include spoliation of evidence as an affirmative defense: (1) that the facts do not support spoliation of evidence having occurred; (2) that spoliation of evidence is not an affirmative defense; and (3) that Defendants cannot assert a spoliation of evidence defense against Plaintiff Seth Ross's employer because his employer is not a party to the action. The Court will address Plaintiffs' arguments in turn.
A. Plaintiffs' Argument that the Facts Do Not Support Defendants' Claim of Spoliation of Evidence
Plaintiffs argue that Defendants should not be permitted to assert that Plaintiffs have intentionally attempted to hide or destroy evidence in this case, given the circumstances of the case, particularly the fact that the missing tractor-trailer truck has now been located and will be inspected by the parties. Plaintiffs appear to be arguing that Defendants' proposed amendment regarding spoliation of evidence is futile because there was no spoliation of evidence. Such factual assertions go outside of the pleadings and, as noted above, cannot be considered by the ...