United States District Court, M.D. Tennessee, Nashville Division
RONALD G. DRIVER, Plaintiff,
PRO AG MANAGEMENT, INC., d/b/a PRODUCERS AG INS - LEXINGTON and ARMTECH INSURANCE SERVICES, INC. Defendants.
Crenshaw Chief Judge.
WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE.
this Court entered an Order (Doc. No. 51) granting Ronald G.
Driver's Motion to Compel Arbitration (Doc. No. 42) and
Pro Ag Management, Inc.'s (“Pro Ag”) Motion
to Stay Pending Completion of Arbitration (Doc. No. 39),
Driver filed a Motion to Dismiss With Prejudice (Doc. No.
52). The basis for that Motion is that he has settled with
response, ARMtech Insurance Services, Inc.
(“ARMtech”) “admits that [Driver] has
entered into separate written settlement agreements with each
Defendant thereby fully and finally resolving all claims
asserted in Driver's Complaint.” (Doc. No. 56 at
1). ARMtech insists, however, that its “assertion of
comparative fault against its Co-Defendant for negligence
constitutes a still pending claim in this lawsuit.”
use of the term “assertion of comparative fault”
is telling. In its Answer, ARMtech alleges, as an affirmative
defense, the following:
4. The sole proximate cause or proximate contributing cause
of Plaintiff's losses or damages, if any, was the
Plaintiff's own negligent or intentional acts or
omissions, which are pled as a complete bar to recovery or in
diminution thereof. Alternatively, the sole proximate cause
or proximate contributing cause of Plaintiff's losses or
damages, if any, was Pro Ag's negligent or intentional
acts or omissions, which are pled as a complete bar to
recovery or in diminution thereof.
(Doc. No. 25 at 9, ¶ 4).
Rule 13(g) of the Federal Rules of Civil Procedure,
“[a] pleading may state as a crossclaim any claim by
one party against a coparty if the claim arises out of the
transaction or occurrence that is the subject matter of the
original action or of a counterclaim [and] may include a
claim that the coparty is or may be liable to the
cross-claimant for all or part of a claim asserted in the
action against the cross-claimant.” Fed.R.Civ.P. 13(g).
An affirmative defense, however, is not a “claim”
for relief. Philadelphia Indem. Ins. Co. v. Chicago Title
Ins. Co., 771 F.3d 391, 401 (7th Cir. 2014); Mintzer
v. Lester, 51 Fed.Appx. 929, 930 (5th Cir. 2002);
Bruegge v. Metro. Prop. & Cas. Ins. Co., No.
13-CV-1256-JPG-DGW, 2014 WL 2582749, at *1 (S.D. Ill. June 9,
2014); Dougan v. Armitage Plumbing, LLC, No.
6:11-CV-1409-ORL-22, 2011 WL 5983352, at *1 (M.D. Fla. Nov.
14, 2011), report and recommendation adopted, No.
6:11-CV-1409-ORL-22, 2011 WL 5983344 (M.D. Fla. Nov. 29,
2011) J & J Sports Prods., Inc. v.
Mendoza-Govan, No. C 10-05123 WHA, 2011 WL 1544886, at
*7 (N.D. Cal. Apr. 25, 2011); Ash Grove Cement Co. v. MMR
Constructors, Inc., No. 4:10-CV-04069, 2011 WL 3811445,
at *2 (W.D. Ark. Aug. 29, 2011). Instead, it is “a
defense to a claim for relief, and, therefore, it does not
provide an avenue for an award of damages.”
Militello v. Allstate Prop. & Cas. Ins. Co., No.
1:14-CV-0240, 2016 WL 3254144, at *3 (M.D. Pa. June 14, 2016)
(collecting cases); see also, Akiachak Native
Cmty. v. United States Dep't of Interior, 827 F.3d
100, 107 (D.C. Cir. 2016) (“Under Federal Rule of Civil
Procedure 8(c), however, affirmative defenses made
‘[i]n respon[se] to a pleading' are not themselves
claims for relief.”); Philadelphia Indem., 771
F.3d at 401 (citing Illinois law) (“A counterclaim
differs from an answer or affirmative defense. A counterclaim
is used when seeking affirmative relief, while an answer or
affirmative defense seeks to defeat a plaintiff's
is correct that, under Rule 15(a)(2) of the Federal Rules of
Civil Procedure, a party may amend its pleadings and leave to
do so should “be freely given when justice so
requires.” Foman v. Davis, 371 U.S. 178, 182
(1962). This neglects to consider, however, that ARMtech has
made no such request. It also neglects to consider that
“after the deadline for amendments in the scheduling
order has passed, Rule 15(a)'s instruction for leave to
be ‘freely given' must be read in conjunction with
Rule 16's requirement that amendment of a scheduling
order must only be made upon a showing of good cause and
leave of the court.” Andretti v. Borla Performance
Indus., Inc., 426 F.3d 824, 835 (6th Cir. 2005) (citing
Leary v. Daeschner, 349 F.3d 888 (6th Cir. 2003)).
Here, the Case Management Order (Doc. No. 36) set a May 1,
2017 deadline for amending pleadings, and none were filed.
stands, the only “claims for relief” before the
Court were those presented by Driver in his Complaint and, by
all accounts, those claims have been resolved. Accordingly,
the Motion to Dismiss With Prejudice (Doc. No. 52) is hereby
GRANTED, and the Clerk of the Court shall