Pesce v. City of Des Moines

Citation439 F.Supp.3d 1101
Decision Date14 February 2020
Docket NumberCase No. 4:18-cv-00199-SMR-CFB
Parties Cynthia PESCE and Bela Animal Legal Defense and Rescue, Plaintiffs, v. CITY OF DES MOINES, IOWA, and James Butler, Defendants.
CourtUnited States District Courts. 8th Circuit. United States State District Court of Southern District of Iowa

Jaysen Christopher McCleary, Attorney at Law, Jaysen McCleary, Des Moines, IA, for Plaintiffs.

Michelle Mackel-Wiederanders, Des Moines City Attorney, Des Moines, IA, for Defendants.

ORDER ON MOTION FOR SUMMARY JUDGMENT

STEPHANIE M. ROSE, JUDGE

Before the Court is a Motion for Summary Judgment filed by Defendants City of Des Moines, Iowa (the "City"), and James Butler. [ECF No. 34]. Plaintiffs Bela Animal Legal Defense and Rescue ("Bela") and Cynthia Pesce failed to timely resist the motion. See [ECF No. 43]. The Court thus considers the motion to be unresisted. No party requested oral argument on the motion, and the Court finds the issues can be resolved without it. See LR 7(c). For the reasons stated herein, Defendants' motion is GRANTED.

I. PRELIMINARY MATTERS

Before the Court discusses Defendants' motion, it must first address a procedural abnormality in this case, along with its possible ramifications. Under Rule 12 of the Federal Rules of Civil Procedure, a defendant must typically serve an answer within twenty-one days after being served with a summons and complaint. Fed. R. Civ. P. 12(a). When a party files a pre-answer motion to dismiss under Rule 12, the time to serve an answer is extended until fourteen days after the court denies the motion. Fed. R. Civ. P. 12(a)(4)(A). Here, Defendants filed pre-answer motions to dismiss, which the Court granted in part and denied in part on December 10, 2018. [ECF No. 16]. At that point, Defendants were required to file an answer responding to the remaining claims in the case by no later than December 26, 2018.1 But Defendants never did so, Plaintiffs never sought an entry of default or a default judgment, and the parties proceeded with discovery, seemingly having overlooked Defendants' omission.

Which brings the Court to Defendants' Motion for Summary Judgment, where—on a strict reading of the Federal RulesDefendants' failure to file an answer has potentially significant consequences. First, they are deemed to have admitted all the facts in the complaint (in this case, Plaintiffs' Amended Petition). See Fed. R. Civ. P. 8(b)(6) ("An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied."). Second, parties are required to raise affirmative defenses in their answer. Fed. R. Civ. P. 8(c)(1). In support of summary judgment, Defendants rely on two affirmative defenses—qualified immunity and res judicata. "Generally, failure to plead an affirmative defense results in a waiver of the defense." First Union Nat'l Bank v. Pictet Overseas Tr. Corp., Ltd. , 477 F.3d 616, 622 (8th Cir. 2007).

But courts do not strictly adhere to these rules when no party has been prejudiced and the purposes of the Federal Rules' pleading requirements are otherwise satisfied. "[T]he primary role of pleadings in the federal system ... is to provide notice ...." Pepper v. Village of Oak Park , 430 F.3d 805, 812 (7th Cir. 2005) ; see also id. ("The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits." (quoting parenthetically Conley v. Gibson , 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) ). Thus, federal courts have applied Rule 8 in a way to "avoid unfair surprise by the party who failed to file a responsive pleading." Trotter v. Jack Anderson Enters., Inc. , 818 F.2d 431, 436 (5th Cir. 1987). Consistent with this, courts have declined to apply Rule 8(b)(6) when a non-pleading defendant files a motion for summary judgment, reasoning that the motion provides "plain notice" to the plaintiff of the matters that are to be litigated. Id. (declining to reverse a grant of summary judgment where the district court did not apply Rule 8(b)(6), finding that the defendant's motion for summary judgment gave the plaintiff notice of the issues to be litigated and thus "had no effect on the rights of" the plaintiff); see also Sanchez v. BNSF Ry. Co. , 976 F. Supp. 2d 1265, 1267–68 (D.N.M. 2013) (declining to apply Rule 8(b)(6) where the defendant filed a motion for summary judgment without first answering the complaint, reasoning that the defendant's omissions did not prejudice the plaintiff and the motion for summary judgment provided notice to the plaintiff of the issues to be litigated); cf. Pepper , 430 F.3d at 812 (declining to apply Rule 8(b)(6) to a defendant who filed a motion for summary judgment (rather than an answer) to the plaintiff's amended complaint, reasoning that the plaintiff's claims were without merit and that remanding to require the defendant to file an answer would have been "a waste of time").

Here, Defendants did not file an answer. They did, however, file the instant Motion for Summary Judgment in which they argue they are entitled to judgment as a matter of law. Further, in support of their motion, Defendants filed a Statement of Undisputed Material Facts ("Statement of Facts"). [ECF No. 34-1]. Although the Statement of Facts may not address every factual allegation in the Amended Petition, it signals the factual basis on which Defendants claim they are entitled to a favorable judgment. Thus, Defendants have given Plaintiffs notice of the issues to be litigated and facts relevant to their case, and an answer was not necessary to effectuate the goals of the Federal Rules' pleading requirements.

Nor has Defendants' failure to file an answer prejudiced Plaintiffs. Not only have Plaintiffs received adequate notice of the issues and facts that stand to be litigated, but Plaintiffs had ample opportunity to contest those facts. Rule 56 allows a party resisting summary judgment to show a fact is genuinely disputed by citing materials in the record, including "admissions." Fed. R. Civ. P. 56(c)(1)(A). But despite two extensions of time to respond to Defendants' Motion for Summary Judgment and Statement of Facts, Plaintiffs failed to file a timely response.2 Accordingly, the motion is unresisted and Plaintiffs cannot argue they would be prejudiced by the Court deciding the motion on the merits.

Also, because Plaintiffs did not respond to Defendants' Statement of Facts, the Court may consider those facts undisputed for the purposes of Defendants' Motion for Summary Judgment, and it may grant summary judgment if Defendants' "motion and supporting materials—including the facts considered undisputed—show the movant is entitled to it." Fed. R. Civ. P. 56(e)(2), (e)(3). Plaintiffs effectively waived any objection to Defendants' Statement of Facts by not responding to it. Consequently, the Court can and will consider those facts undisputed for the purposes of Defendants' Motion for Summary Judgment.

Nevertheless, Defendants' Statement of Facts only provides Plaintiffs with notice as to the facts set out therein. Although Defendants have thereby signaled some facts they deem important to the case, it does not follow that Defendants have given notice that they deny all other facts in the Amended Petition. Accordingly, although the Court deems undisputed the assertions in Defendants' Statement of Facts, it also deems admitted under Rule 8(b)(6) any facts asserted in the Amended Petition. Where, if at all, these admitted and undisputed facts conflict, the Court finds the Statement of Facts controls for the purposes of this motion only. See Fed. R. Civ. P. 56(e)(2).

As for Defendants' affirmative defenses, the United States Court of Appeals for the Eighth Circuit has "eschewed a literal interpretation of [ Rule 8(c) ] that places form over substance, and instead [has] held that [w]hen an affirmative defense "is raised in the trial court in a manner that does not result in unfair surprise, ... technical failure to comply with Rule 8(c) is not fatal." " First Union Nat'l Bank , 477 F.3d at 622 (third alteration in original) (citations omitted). The Eighth Circuit has approved the allowance of affirmative defenses first raised at various stages of litigation. See, e.g. , Sanders v. Dep't of the Army , 981 F.2d 990, 991 (8th Cir. 1992) (per curiam) (finding no abuse of discretion when the district court allowed an affirmative defense to be raised for the first time in a motion to dismiss); Stoebner v. Parry, Murray, Ward & Moxley , 91 F.3d 1091, 1093–94 (8th Cir. 1996) (per curiam) (favorably citing a decision of the United States Court of Appeals for the Ninth Circuit that allowed an affirmative defense to be raised for the first time in a summary judgment motion where there was no prejudice).

Here, Defendants have not prejudiced Plaintiffs by asserting their affirmative defenses for the first time in the instant motion, nor have Plaintiffs been unfairly surprised. As a threshold matter, the City joined in a motion to dismiss that asserted a res judicata defense as to Counts II and III of the Amended Petition. See [ECF Nos. 4; 5]. This should have at least signaled to Plaintiffs that their previous litigation with the City over the subject matter of this case might preclude other claims in this action. More importantly, however, Defendants filed their Motion for Summary Judgment on September 30, 2019, nearly six months before trial. See Grant v. Preferred Research, Inc. , 885 F.2d 795, 797–98 (11th Cir. 1989) (finding the trial court did not err by allowing the defendant to raise an affirmative defense for the first time in a motion for summary judgment, where the motion was filed one month before trial and the plaintiff failed to assert prejudice from the lateness of the filing). Plaintiffs were also given two extensions of time—and nearly two months in total—to respond to Defenda...

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