United States District Court, E.D. Louisiana
ORDER & REASONS
this Court is Plaintiff's motion to strike, R. Doc. 37.
Having spoken with the parties and considered the applicable
law, the Court issues this Order & Reasons.
case arises from injuries Plaintiff John Scott, Jr.
(“Scott”) allegedly sustained while delivering a
package to Defendant Weeks Marine, Inc.
(“Weeks”). R. Doc. 1-1 at 2. Plaintiff brought
this action in state court in the 32nd Judicial
District Court in Terrebonne Parrish and Defendant removed to
this Court on the basis of diversity. R. Doc. 1 at 1.
Plaintiff is a citizen of Louisiana and Defendant is a
citizen of New Jersey. Id. at 2. Defendant asserts
that the amount in controversy exceeds $75, 000. Id.
alleges that he sustained severe personal injuries as a
result of Defendant's employees' negligence. R. Doc.
1-1 at 4. Plaintiff was employed by UPS as a delivery driver.
Id. at 2. Plaintiff asserts he was delivering a
package of a 500 pound piece of industrial furniture when
Defendant's employee negligently operated a forklift,
causing the package to fall on Plaintiff's
hand. Id. at 3-4. Plaintiff experienced
immediate and severe pain and continues to have pain and
swelling in his hand. Id. at 3. He has undergone
significant physical therapy and is currently treating with a
hand specialist. Id. Plaintiff claims as a result of
the alleged accident he suffered severe physical pain and
disability, mental anguish, medical expenses, disfigurement,
lost wages, and lost earning potential. Id.
Plaintiff therefore seeks damages for those injuries in
addition to exemplary damages and attorney's fees.
Id. at 4.
timely answers and denies all allegations in Plaintiff's
complaint. R. Doc. 6 at 1-2. Defendant also asserts Plaintiff
failed to state a cause of action upon which relief can be
granted. Id. at 2. Defendant avers that any injuries
were caused by Plaintiff's own negligence. Id.
moves to strike Defendant's affirmative defense,
intentional action. R. Doc. 37. In the Proposed Pretrial
Order Defendant mentions the potential intentional act of
Justin Self to injure Plaintiff John Scott. R. Doc. 34 at 8.
Plaintiff alleges that this is the first time Defendant has
raised this affirmative defense. R. Doc. 37.
LAW & ANALYSIS
“responding to a pleading, a party must affirmatively
state any avoidance or affirmative defense.” Fed. R.
Civ. Pro. 8(c)(1). “Failure to timely plead an
affirmative defense may result in waiver and the exclusion of
the defense from the case.” LSREF2 Baron, L.L.C. v.
Tauch, 751 F.3d 394, 399 (5th Cir. 2014). When sitting
in diversity, the district court uses the substantive law of
the state to determine whether a particular defense is
affirmative. Id. The Louisiana Code of Civil
Procedure contains an illustrative list of affirmative
defenses: “The answer shall set forth affirmatively
negligence, or fault of the plaintiff and others, duress,
error or mistake, estoppel, extinguishment of the obligation
in any manner, failure of consideration, fraud, illegality,
injury by fellow servant, and any other matter constituting
an affirmative defense.” La. Code Civ. Proc. art. 1005;
see also LSREF2 Baron, 751 F.3d at 399. The Fifth
Circuit states that whether a defense is affirmative requires
“a fact-specific inquiry, dependent on the
circumstances of the case.” LSREF2 Baron, 751
F.3d at 399. “An affirmative defense ‘raises a
new matter, which assuming the allegations in the petition
are true, constitutes a defense to the action.'”
Id. (quoting Bienvenu v. Allstate Ins. Co.,
819 So.2d 1077, 1080 (La. Ct. App. 2002).
an intentional act defense falls into the category of
“fault of others” and is an affirmative defense
under Louisiana Code of Civil Procedure art. 1005. Defendant
had sufficient time to raise such a defense prior to the
pretrial order and it is now untimely. Therefore, Defendant
is not permitted to raise the intentional action affirmative
defense at this time. However, the Court recognizes that it
may have some relevance on whether or not Plaintiff can prove
Defendant's negligence based on a respondeat superior
theory. To this extent, the intent of the employee may be
relevant and admissible.
IT IS ORDERED that Plaintiffs motion to