Franklin-Mason v. Johnson

District of Columbia, dcd-1:2003-cv-00945

MOTION for Leave to File Lodged Amended Answer as a Supplemental Pleading under Rule 15(d) by B.J. PENN

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-00945 JEB) RAY MABUS) Secretary of the Navy,)) Defendant.)) MOTION FOR LEAVE TO FILE LODGED AMENDED ANSWER AS A SUPPLEMENTAL PLEADING UNDER RULE 15(d) In responding to a pleading, a party "must affirmatively state any avoidance or affirmative defense," Fed. R. Civ. P. 8(c), or risk waving it. The defense that the plaintiff is barred by the doctrine of collateral estoppel from recovering on all or a part of the complaint has been held to be an affirmative defense. A defendant may assert such a defense by a supplemental pleading under Fed. R. Civ. P. 15(d) when the judgment giving rise to the defense occurred after the date the of defendant's answer. Ratner v. v. Paramount Pictures, Inc., 6 F.R.D. 618 (D.C.N.Y. 1942). The instant case is one of two cases that plaintiff has filed against the Navy. The other case, in which plaintiff alleged that the Navy had breached the settlement agreement entered in 96cv02505, was transferred to the Court of Federal Claims. On March 30, 2016, that Court entered judgment against plaintiff, finding that the Navy had not materially breached the settlement agreement and had acted in good faith in its dealings with plaintiff. Franklin-Mason v. United States, 126 F3d.Cl. 149 (2016). Under the doctrine of collateral estoppel, this decision precludes plaintiff from arguing here that the Navy breached the terms of the settlement agreement or that the Navy did not act in good faith in carrying out its obligations under the settlement agreement. Under Fed. R. Civ. P. 15(d), the Court may permit the filing of a supplemental pleading "setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." The Court should freely give leave to file an amended complaint "when justice so requires." Id. at 15(a)(2). Plaintiff's counsel does not consent to this motion. Attached is a draft order reflecting the requested relief. Respectfully submitted, CHANNING D. PHILLIPS, D.C. Bar #415793 United States Attorney for the District of Columbia DANIEL F. VAN HORN, D.C. Bar #924092 Chief, Civil Division 2 BY: /s/ Fred E. Haynes FRED E. HAYNES, D.C. Bar #165654 Assistant United States Attorney 555 Fourth Street, N.W., Room E-4110 Washington, D.C. 20530 202.514.7201 fred.haynes@usdoj.gov 3 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ROXANN J. FRANKLIN-MASON,)) Plaintiff,)) v.) Civil Action No. 03-00945 JEB) RAY MABUS) Secretary of the Navy,)) Defendant.)) ORDER UPON CONSIDERATION of the motion by defendant for leave to file the lodged amended answer as a supplemental pleading, and the response thereto, it is this __ day of ________, 2016, ORDERED that the motion is granted; and it is further ORDERED that the Clerk is directed to file the lodged amended answer. UNITED STATES DISTRICT JUDGE