Preview:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

MICHAEL H. BOSTRON and MAURICE R. duBOIS Plaintiffs vs. KENNETH S. APFEL, et al. Defendants

*

* * CIVIL NO. H-97-3154 * *

*

*

*

o0o

*

*

*

MEMORANDUM AND ORDER

In its twenty-four page Memorandum and Order of March 17, 2000, the Court granted defendants' motion for partial summary judgment in part and denied it in part. Plaintiff Bostron has

now filed a Motion to Reconsider Portions of the Court's March 17 Order. Since there is no merit to plaintiff's motion to

reconsider, there is no need for defendants to respond to it. For the reasons stated herein, the pending motion to reconsider will be denied. In its ruling of March 17, the Court concluded that the evidence relied upon by defendants in support of their motion for partial summary judgment should not be excluded on the ground that defendants had failed to comply with discovery requests of plaintiff Bostron. Plaintiff now argues that the

Court wrongly concluded that Bostron was offered the opportunity to depose designees of the SSA but did not avail himself of this

opportunity

which

would

have

provided

him

with

relevant Plaintiff

information pertaining to particular VANs at issue.

contends that the Court should reconsider its decision because the record here establishes that plaintiff Bostron was not provided with the relevant and necessary discovery which he requested on the VANs at issue in defendants' motion. must disagree. Each side has accused the other of not providing discovery which was timely requested. But the reasons why the parties The Court

have had difficulty in obtaining relevant information is obvious and was noted by the Court in its March 17 Memorandum and Order. As therein indicated, discovery problems have arisen because of the very large number of positions claimed by plaintiff to be at issue and because of the lengthy period of time during which he allegedly sought promotions to these positions. time during pretrial proceedings, neither From time to nor his

Bostron

counsel were even sure of the number of promotional positions to which he previously applied and which formed the basis of his claims. As the Court noted in its March 17 ruling, it is the

established practice of the SSA to retain documents like the BQLs and like applications for positions for a period of only two years after the position has been filled, after which the documents are routinely destroyed. As a result of this

practice, the SSA has destroyed many of the VAN Packages sought by Bostron in discovery. The Court is satisfied that counsel for plaintiff Bostron did not comply with the three-step discovery procedure

2

established in correspondence between counsel. Plaintiff relies on his October 8, 1999 letter and contends that counsel for defendants did not comply with the request contained in that letter. However, at that time the agreed three-step discovery

procedure as outlined in Mr. Loucks' letter of March 15, 1999 was still in effect, and Bostron's attorney never requested, pursuant to that procedure, the scheduling of depositions of designees who would provide information pertaining to VANs which were identified after September of 1999. at the time too late for the taking In any event, it was of any additional

depositions.

Pursuant to the Second Revised Scheduling Order, Although

the cut-off date for discovery was April 19, 1999.

defendants thereafter supplemented prior disclosures as required by Rule 26(e), counsel for plaintiffs never subsequently

requested that the Court extend the date for the completion of discovery to permit the taking of further depositions required by the new information. Even if counsel for plaintiff had after

October, 1999 requested the names of designees to be deposed, it is questionable whether additional depositions would have been permitted because discovery had been closed some six months earlier, and motions for summary judgment had been filed and ruled on. Plaintiff Bostron further argues that the Court should not grant defendants leave to amend their answer and assert an affirmative defense of laches. This request will be denied.

At pages 21 to 28 of their memorandum in opposition to defendants' motion for partial summary judgment, counsel for

3

plaintiffs discussed at some length defendants' argument that the doctrine of laches should apply in this case. In only a

single paragraph appearing at the bottom of page 21 and the top of page 22 did counsel claim that defendants were barred from

relying on the doctrine of laches because they had not raised this affirmative defense in responsive pleadings. All of the

rest of the discussion at pages 22 to 28 related to plaintiffs' contention that application of the doctrine of laches in this case was inappropriate. its prior ruling The Court did not therefore discuss in contention that Rule 8(c),

plaintiffs'

F.R.Civ.P., requires that the affirmative defense of laches must be alleged in a defendant's answer. Pursuant to Local Rule 106.2.d, defendants will be permitted to amend their pleadings by asserting the defense of laches in the Pretrial Order. As noted hereinafter, there is ample

authority recognizing that a defendant's failure to assert this defense pursuant to Rule 8(c) at an early stage of the

proceedings does not necessarily constitute a waiver of that defense. Rule 8(c) requires that be any set matter forth constituting in a an

affirmative

defense

should

defendant's

responsive pleading.

Failure to follow this rule may result in

a waiver of such affirmative defense and its exclusion from the case. See Westfarm Assocs. Ltd. Partnership v. Int'l Fabricare However, the

Institute, 846 F.Supp. 439, 440 (D.Md. 1993).

Fourth Circuit has held that absent unfair surprise or prejudice to the plaintiff, a defendant's affirmative defense is not

4

deemed to have been waived where pretrial dispositive motion.

it

is

first

raised

in

a

Peterson v. Airline Pilots Ass'n,

759 F.2d 1161, 1164 (4th Cir. 1985) (holding that waiver is not automatic, but requires a showing of prejudice or unfair

surprise); see also American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 96 (4th Cir. 1996); Polsby v. Chase, 970 F.2d 1360, 1364 (4th Cir. 1992). This view is in

accord with decisions of the vast majority of circuits. See, e.g., Blaney v. United States, 34 F.3d 509, 512 (7th Cir. 1994). Courts have specifically held that an affirmative defense is not waived by the failure to plead it in the answer when the issue was included in the pretrial order. Expertise, Inc. v. Aetna

Finance Co., 810 F.2d 968, 973 (10th Cir. 1987). On the record here, this Court is satisfied that defendants' failure to plead the affirmative defense of laches in its answer does not constitute a waiver of that defense. In this case,

plaintiff has failed to demonstrate either unfair surprise or prejudice, and defendants were therefore entitled to raise the defense for the first time in their pretrial motion for partial summary judgment. See Peterson, 759 F.2d at 1164.

The defense of laches requires a defendant to demonstrate that a plaintiff's delay in bringing suit was "inexcusable or inadequately excused ..., plus prejudice." Gliddens v.

Isbrandtsen Co., 355 F.2d 125, 128 (4th Cir. 1966).

Throughout

the lengthy pretrial proceedings in this case, defendants have contended that plaintiff's delay in bringing this discrimination action was unreasonable. While never formally couched as a

5

laches defense, defendants have consistently presented arguments in various pleadings and motions which certainly placed

plaintiff Bostron on notice of defendants' position that he had unreasonably delayed in seeking redress for the multitude of Accordingly, it

discriminatory acts alleged to have occurred.

was hardly a surprise to plaintiff when defendants raised their laches defense. Moreover, plaintiff Bostron has not here shown that

defendants' failure to raise the defense of laches in their answer has caused him any prejudice. his motion for reconsideration defense of Plaintiff has contended in in order to counter would a

that

properly

pleaded

laches,

plaintiff

have

developed in discovery evidence on various issues.

According to

plaintiff, he has not been given the opportunity to investigate these issues in response to a well-pled laches defense, and there would "be very real prejudice" if defendants were allowed at this stage of the case to proceed with their laches defense. This argument is meritless. As noted in this Court's March 17 ruling, "the defendant has the burden of ultimately plus proving inexcusable inasmuch as or inadequate is an

excused

delay,

prejudice,

laches

affirmative defense."

Gliddens, 355 F.2d at 128.

None of the

areas which plaintiff alleges would have been investigated had defendants included a laches defense in their answer concern the question whether plaintiff's delay was inexcusable or

inadequately excused. defendants' knowledge

Rather, the areas listed focus upon of discrimination and their acts in

6

investigating such discrimination. These factors are completely irrelevant to the question whether plaintiff's delay was

inexcusable or inadequately excused. Plaintiff has also complained that evidence pertaining to defendants' laches defense is not available because documents were allowed to be destroyed. Defendants have a similar

complaint but place the blame for such destruction on Bostron. According to defendants, the destruction in question has

adversely affected their ability to prepare a defense to the twelve VANs challenged in their laches argument. Bostron has

asserted that it was not until 1995 that he became aware of the SSA's systemic discrimination and that he therefore did not inexcusably delay the initiation of EEO counseling. Had Bostron

sought counseling earlier, the documents now sought by both sides would be available. The Court has previously rejected

Bostron's contention that the SSA has followed an unlawful document destruction practice. Had defendants known before 1995

of the positions now at issue, records would undoubtedly have been retained so that defenses to Bostron's claims could be prepared. In sum, the question presented is whether plaintiff Bostron himself would be prejudiced or surprised by the inclusion of the laches issue at this late date in the proceedings. satisfied that he would not. The Court is

He has himself chosen to assert

claims based on openings at the SSA over a period of thirteen years. As the Court indicated in its ruling of March 17, it

will be for the trier of fact to determine whether, under the

7

circumstances of this case, it was unreasonable for Bostron to have delayed the initiation of EEO counseling insofar as the twelve VANs in question are concerned. For all these reasons, plaintiffs' motion to reconsider will be denied. Accordingly, it is this _____ day of April, 2000 by

the United States District Court for the District of Maryland,

ORDERED that plaintiff Bostron's Motion of to Reconsider Portions of the Court's March 17 Order is hereby denied.

Senior United States District Judge

8



Download Boston and duBois v Apfel.pdf

Maryland Law