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Court Refuses to Grant City Leave to Amend Answer to Assert Immunity as an Affirmative Defense

In the case of Durig v. Youngstown, 2023-Ohio-4446, an appellate court affirmed a lower court’s order denying the city leave to amend its answer to plaintiff’s complaint to assert immunity as an affirmative defense.   The city moved to amend its answer 2 years and 9 months after filing its initial answer, after discovery had been completed, the dispositive deadline had passed, and the trial date was scheduled.

In this case, the appellee-estate argued that the city-appellant’s motion for leave to amend the complaint was rightfully denied because an affirmative defense, if not asserted in the initial responsive pleading, is waived.   Moreover, the request for leave was filed after the appellee had already spent the time, resources, and money proceeding with the litigation as though the defense had been waived and thus the appellee would suffer undue delay and prejudice if such leave was granted. In response, the city argued that Civ. R. 15(A) provides that leave shall be freely given when justice so requires, that appellee’s had notice of the defense by virtue of the inclusion of the defense of failure to state a claim in the initial answer, and that political subdivision immunity is a desirable public policy of Ohio and the city, on behalf of taxpayers, should be given the opportunity to make its immunity argument.   The appellate court agreed with the estate.

In support of its decision in favor of the appellee-estate, the appellate court reasoned that there is case law supporting both positions, and given the 2 year and 9 month time lapse between the initial answer and the motion for leave, it could not find that the trial court’s attitude was unreasonable, arbitrary, or unconscionable, as required under the abuse of discretion standard.

The dissenting opinion would have reversed the trial court’s order, as the dissenting judge did not believe an amendment was necessary in the first instance given that the city had included failure to state a claim in its initial answer. Additionally, the dissent took issue with reliance upon the delay in between filing the initial answer and seeking leave given that the delay was largely the result of outside forces, including the initial judge’s recusal and the Covid-19 pandemic.

To read this case, click here.

Authors: Matthew John Markling and the McGown & Markling Team.

Note: This blog entry does not constitute – nor does it contain – legal advice. Legal jurisprudence is like the always-changing Midwestern weather. As a result, this single blog entry cannot substitute for consultation with a McGown & Markling attorney. If legal advice is needed with respect to a specific factual situation, please feel free to contact a McGown & Markling attorney.

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