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Larsen v. Maynard, Inc.

United States District Court, W.D. Arkansas, Fayetteville Division

July 19, 2019

SUSAN LARSEN PLAINTIFF
v.
MAYNARD, INC. DEFENDANT

          OPINION AND ORDER

          Timothy L. Brooks, Judge

         Currently pending before the Court are several motions in limine (Docs. 38, 40, 42, & 44) filed by Plaintiff Susan Larsen. Defendant Maynard, Inc. has filed responses in opposition (Docs. 48, 49, & 50) to all but one motion (on which it agrees with Plaintiff). In addition, the parties have filed a Joint Motion concerning Plaintiffs Deposition Testimony (Doc. 47). During its final pre-trial conference, the Court heard oral argument on these motions and made preliminary rulings from the bench. This Order memorializes those rulings. To the extent anything written here conflicts with the Court's pronouncements from the bench, this Opinion and Order controls.

         1. Plaintiffs Motion to Exclude After-Acquired Evidence (Doc. 38)

         Plaintiff first seeks to exclude Maynard from introducing evidence of alleged workplace misconduct that was discovered by Maynard following Plaintiffs termination. During the final pre-trial conference, the parties identified for the Court three instances of conduct that were discovered subsequent to Plaintiffs termination that Maynard hoped to use to show that it would have terminated her regardless of any other reasons. As such, Maynard was attempting to use such after-acquired evidence to limit Plaintiffs possible recovery.

         For the reasons stated during the pre-trial conference, the Court GRANTS Plaintiffs Motion to Exclude After-Acquired Evidence. On the basis of its own prior decisions and after considering relevant case law, the Court concludes that the after-acquired evidence defense is an affirmative defense that must be specifically included in a party's pleading pursuant to Federal Rule of Civil Procedure 8(c). See, e.g., E.E.O.C. v. Old Dominion Freight Line, Inc., 2015 WL 11117158, at *3 (W.D. Ark. Jan. 5, 2015); Sellers v. Mineta, 358 F.3d 1058, 1060 (8th Cir. 2004) (assuming without deciding that after-acquired evidence defense is affirmative one). The law also provides that failure to plead a particular affirmative defense results in waiver of that defense. See, e.g., Dollar v. Smithway Motor Xpress, Inc., 710 F.3d 798, 807-08 (8th Cir. 2013). While this rule is not absolute, and while courts have, for instance, found the defense to not be waived where it was preserved in a final pre-trial order or tried by the implied consent of all parties, the Court finds no support for reviving the otherwise waived defense here.

         The Court's previous decision in Old Dominion is instructive. There, the facts supporting the after-acquired evidence defense came to light during the course of discovery. Nevertheless, Old Dominion never moved to amend its pleadings to add the defense. This Court ultimately held that the defense was waived. The grounds for finding the defense waived in this case are even stronger than in Old Dominion. For, the facts lending support to the after-acquired evidence doctrine here were not simply discovered during the course of discovery. Rather, Maynard knew of these events as early as one year prior to the filing of its Answer when it learned about them during the course of the EEOC investigation into the events in question. As such, the Court finds that Maynard had ample time to assert this defense before filing its answer. It also had at least two opportunities to do so after it answered, including during the Court's preliminary case management hearing (where the issues for trial were discussed) and a later discovery dispute conference. Nevertheless, it did not do so, waiting until responding to the present motion to argue that it should be permitted to advance the defense. The Court is not persuaded and finds that Maynard's stated position during these proceedings coupled with its early knowledge of the events supporting such a defense are more than sufficient to conclude that it waived the defense and should not be entitled to rely on it at trial to limit the scope of any damages that Plaintiff might otherwise recover.[1] Plaintiffs Motion to Exclude After-Acquired Evidence (Doc. 38) is GRANTED.

         2. Plaintiffs Motion to Exclude Failure to Mitigate Evidence (Doc. 40)

         Plaintiff next seeks to exclude Maynard from introducing evidence that she failed to mitigate her damages following her termination from Maynard. After hearing oral argument during the final pre-trial conference, the Court took this motion under advisement. For the reasons that follow, it now GRANTS Plaintiffs motion.

         As the Seventh Circuit explained in Hutchison v. Amateur Electronic Supply, Inc. in a leading employment discrimination case:

Once a plaintiff has established the amount of damages she claims resulted from her employer's conduct, the burden of going forward shifts to the defendant to show that the plaintiff failed to mitigate damages or that damages were in fact less than the plaintiff asserts. To establish the affirmative defense of a plaintiffs failure to mitigate damages, the defendant must show that: (1) the plaintiff failed to exercise reasonable diligence to mitigate her damages, and (2) there was a reasonable likelihood that the plaintiff might have found comparable work by exercising reasonable diligence.

42 F.3d 1037, 1044 (7th Cir. 1994) (cleaned up).

         Thus, while evidence of plaintiffs failure to mitigate her damages might otherwise be relevant, it is not relevant here because Maynard failed to raise this defense in the pleadings. Just like after-acquired evidence, the defense of failure to mitigate damages is an affirmative defense that is considered waived if not pleaded. See, e.g., Dollar, 710 F.3d at 807-08 ("the failure to plead [failure to mitigate] results in waiver."). However, the Eighth Circuit has also indicated, as noted above, that the general proscription on relying on affirmative defenses at trial that were not pleaded is not absolute, and the defense's. inclusion in a final pre-trial order may revive or preserve the issue for trial. Id. Here, however, there is no such pre-trial order that could serve to revive the defense.

         Moreover, for the same reasons described above, the Court finds that Maynard failed at any point during the earlier stages of this litigation to put Plaintiff on specific notice that it would be relying on this defense. While it appears that Plaintiffs post-Maynard employment was the subject of certain pre-trial discovery, there has been no showing that Plaintiff was explicitly (or implicitly) made aware at any point that Maynard would assert this affirmative defense or argue that Plaintiff failed to exercise reasonable diligence in the pursuit of such post-termination employment. Therefore, the Court GRANTS Plaintiffs Motion (Doc. 40). Thus, any evidence relevant only to Plaintiffs alleged failure to mitigate damages is excluded from trial. Moreover, because this evidence is excluded, the Court will NOT be instructing the jury as to the consequences of a failure to mitigate. Sayre, 850 F.2d at 354 ("As with other affirmative defenses, failure to plead mitigation of damages as an affirmative defense results in a waiver of that defense and its exclusion from the case.").

         3. Plaintiffs Motion to Exclude the Introduction of New Witnesses Not ...


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