Rivera v. Harris County

UNITED STATES DISTRICT COURT September 01, 2022

SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk

HOUSTON DIVISION

JERRY LUMAN, et al., §

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Plaintiffs, §

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v. § CIVIL ACTION H- 19-4920

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CHRISTOPHER DIAZ, et al., §

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Defendants. §

MEMORANDUM OPINION AND ORDER

Pending before the court are (1) the parties’ briefing on the court’s order to show cause

why it should not grant judgment in favor of the plaintiffs due to defendant Christopher Diaz’s

failure to file an answer (Dkt. 204 (show-cause order), Dkt. 208 (Diaz response), Dkt. 209

(plaintiffs’ response)); and (2) a motion for leave to file an answer filed by Diaz (Dkt. 207). After

considering the briefing on the order to show cause, the motion to file an answer, and the applicable

law, the court is of the opinion that the court should GRANT IN PART AND DENY IN PART

Diaz’s motion to file an answer, which remedies the issue addressed by the show cause order.

I. BACKGROUND

The plaintiffs filed their complaint against Diaz,1 Ana Diaz, Harris County, and Jacinto

City on December 18, 2019. Dkt. 1. They filed an amended complaint on December 19, 2019.

Dkt. 3. Harris County filed a motion to dismiss on January 28, 2020, and the plaintiffs filed a

second amended complaint on February 18, 2020. Dkts. 7, 9. Diaz’s counsel filed a notice of

appearance on February 19, 2020, and Diaz moved for an extension of time to respond to the

1 The memorandum opinion and order relates to defendant Christopher Diaz, who is married to

former defendant Ana Diaz. When the court uses the name “Diaz” in this order, it is referring to

Christopher Diaz, not Ana Diaz.

second amended complaint on the next day. Dkts. 11, 13. The court granted the motion for an

extension on March 2, 2020. Dkt. 23. Harris County filed a renewed motion to dismiss on March

3, 2020. Dkt. 24. Jacinto City and Ana Diaz filed a joint answer on March 6, 2020; they preserved

their failure-to-state-a-claim defense in the answer. Dkt. 26. After moving to extend the time to

respond again, Diaz filed a motion to dismiss on March 12, 2020. Dkts. 27, 29. Ana Diaz and

Jacinto City filed a motion to dismiss on March 31, 2020. Dkt. 35. Both Diazes asserted qualified

immunity in their motions to dismiss. Dkts. 29, 35.

On April 16, 2020, the court granted Harris County’s motion to dismiss. Dkt. 41. On May

18, 2020, the court granted Ana Diaz’s and Jacinto City’s motion to dismiss but also granted the

plaintiffs’ request for leave to amend their complaint. Dkt. 53. The plaintiffs then filed a third

amended complaint on June 7, 2020. Dkt. 55.

Ana Diaz and Jacinto City filed a motion to dismiss the third amended complaint on June

22, 2020. Dkt. 59. On August 18, 2020, the court granted the motion to dismiss with regard to

Jacinto City and otherwise denied the motion. Dkt. 70. Ana Diaz timely filed an answer to the

third amended complaint on September 3, 2020. Dkt. 75. On January 25, 2022, Ana Diaz filed a

motion for summary judgment. Dkt. 99. On June 10, 2022, the court granted Ana Diaz’s motion

for summary judgment. Dkt. 195.

Meanwhile, on July 9, 2020, the court granted in part and denied in part Christopher Diaz’s

motion to dismiss, noting that the claims asserted against him in both the second and third amended

complaints were substantially similar and that the court thus considered the motion to dismiss the

second amended complaint as if it were directed at the third amended complaint. Dkt. 63 & n.1.

In this order, the court dismissed a portion of the claims asserted by some of the plaintiffs but

otherwise denied the motion to dismiss. Dkt. 63. Diaz did not file an answer after the court denied,

in part, his motion to dismiss, and the plaintiffs did not file any motions relating to the lack of an

answer. Discovery proceeded, and over a year and a half later, on February 15, 2022, Diaz filed

thirteen separate motions for summary judgment (one for each plaintiff). Dkts. 104–16. The

plaintiffs also filed a motion for partial summary judgment, seeking partial judgment in their favor

on their claims against Diaz. Dkt. 117. Diaz asserted qualified immunity in each of his thirteen

motions for summary judgment. Dkts. 104–16. He did not, however, assert a defense of failure

to use a reasonable diligence to mitigate claimed damages in any of the motions he filed.

When the court was in the process of considering all of the arguments presented by the

parties in the motions for summary judgment relating to the claims against Diaz, it realized that

Diaz did not have an answer on file. It consequently issued an order to show cause why it should

not grant judgment in favor of the plaintiffs due to the failure to file an answer, and it permitted

both parties to file briefs addressing this question. Dkt. 204. The parties filed briefs as requested,

and Diaz also filed a motion to file an answer. Dkts. 207, 208, 209. The court ordered the plaintiffs

to file an expedited response to Diaz’s motion to file an answer, and the plaintiffs filed a response,

though it was filed later than the court had requested.2 See Dkts. 210; 211. The plaintiffs also

expressed their opposition to any request to file an answer in their briefing on the order to show

cause. See Dkt. 209.

The motion to file an answer is now ripe for disposition, and the court also has all of the

information needed with regard to its order to show cause. The court will first set forth the legal

standard for allowing a party to file an answer after the deadline, and then it will consider all of

the parties’ arguments.

2 The court ordered the plaintiffs to file their response by close of business on August 31, 2022.

Dkt. 210. They filed the response at 7:42 p.m. without explanation for it being filed after the close

of business.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(a)(1), generally a “defendant must serve an

answer . . . within 21 days after being served with the summons and complaint.” Fed. R. Civ. P.

12(a)(1). However, if the party files a motion under Rule 12, the time period is altered such that

if the court denies the motion or postpones it until trial, “the responsive pleading must be served

within 14 days after notice of the court’s action.” Fed. R. Civ. P. 12(a)(4)(A). Or, if the court

grants a motion for a more definite statement, “the responsive pleading must be served within 14

days after the more definite statement is served.” Fed. R. Civ. P. 12(a)(4)(B). Under Federal Rule

of Civil Procedure 8(b)(6), “[a]n allegation—other than one relating to the amount of damages—

is admitted if a responsive pleading is required and the allegation is not denied.” Fed. R. Civ. P.

8(b)(6).

Under Federal Rule of Civil Procedure 6(b)(1), a court has discretion to extend a deadline

“for good cause” pursuant to a motion after the deadline has passed “if the party failed to act

because of excusable neglect.” Fed. R. Civ. P. 6(b)(1). The court “enjoys broad discretion to grant

or deny an extension, and the excusable neglect standard is intended and has proven to be quite

elastic in its application.” Salts v. Epps, 676 F.3d 468, 474 (5th Cir. 2012) (quotations omitted).

In determining whether a party’s failure to act is due to excusable neglect, the court considers four

factors: (1) the possibility of prejudice to the other parties; (2) the length of the applicant’s delay

and its impact on the proceedings; (3) the reason for the delay and whether it was within the control

of the movant; and (4) whether the movant has acted in good faith. Id.; see also L.A. Pub. Ins.

Adjusters, Inc. v. Nelson, 17 F.4th 521, 525 (5th Cir. 2021) (considering these factors and relying

on Pioneer Inv. Servs. Co. v. Brunswick Assocs. LP, 507 U.S. 380, 395, 113 S. Ct. 1489 (1993)).

III. ANALYSIS

A. Order to Show Cause Arguments

In his brief responding to the order to show cause, Diaz concedes that he was required to

file an answer under Federal Rule of Civil Procedure 12(a)(4) within fourteen days of the date the

court denied, in part, the motion to dismiss. Dkt. 208. He argues that the failure to do so “was a

mistake on the part of his counsel and not Constable Diaz,” that there was “no contumacious

conduct or intentional disregard for the requirements of Rule 12(a)(4),” and that “counsel simply

failed to comply with the procedural requirement.” Id. He additionally argues that the plaintiffs

were not prejudiced by his failure to file an answer because he invoked his qualified immunity in

his motion to dismiss and his motions for summary judgment. Id. He points out that the plaintiffs

responded to the motions for summary judgment that specifically addressed the qualified immunity

defense “as if they had already been pled in an Answer” and did not assert that the motions should

be denied because of the lack of an answer. Id. He additionally notes that entering default because

of the failure to file an answer is to be used only in extreme situations, and the facts here do not

qualify for this sanction. Id. (relying on Flaska v. Little River Marine Constr. Co., 389 F.2d 885,

887 (5th Cir. 1968)).

The plaintiffs point out that the court may deem the facts alleged in the third amended

complaint relating to Diaz as true, and if the court were to do so, this would provide further support

for denying Diaz’s motions for summary judgment and granting the plaintiffs’ motion for partial

summary judgment. Dkt. 209. The plaintiffs assert that they have responded to Diaz’s motions as

if an answer is on file because they must respond to allegations within the motion, and they argue

that their “only real oversight was not pointing out the lack of an answer in any summary judgment

response.” Id. They argue that Diaz “cannot shift this burden on to the Plaintiffs,” and his

argument that the plaintiffs should have raised it does just that. Id. They request that the court

grant their motion for partial summary judgment and deny Diaz’s pending motions for summary

judgment since Diaz did not file an answer and because he tacitly admitted the plaintiffs’

allegations when he failed to provide reasons for the employment actions about which the plaintiffs

complain during his deposition. Id.

B. Motion to File an Answer Arguments

Diaz argues that the plaintiffs were on notice that he was asserting qualified immunity and

his argument that they could not demonstrate a prima facie case of First Amendment retaliation

when he filed his motion to dismiss on March 12, 2020. Dkt. 207. He concedes that he was

required to file an answer fourteen days after the court denied, in part, the motion to dismiss on

July 9, 2020, but he argues that this was simply a mistake by counsel after the motion to dismiss

was denied and counsel started litigating claims asserted by thirteen plaintiffs, which required

almost twenty depositions and extensive written discovery over the next eighteen months. Id.

Diaz asserts that he was not required “to raise the presumption of his immunity from Plaintiffs’

suit in an answer” and that raising it in his motion to dismiss and the motions for summary

judgment was sufficient to put the plaintiffs on notice. Id. Further, he notes that notwithstanding

the lack of an answer on file, the plaintiffs knew that he denied their factual allegations and claimed

immunity. Id. He points out that the parties conducted discovery on the very issues he now raises

in his motions for summary judgment. Id. He contends that the balance of the excusable neglect

factors thus weighs in favor of granting him an extension to file an answer. He further asserts that

there is good cause to allow him to file his answer now because the failure to timely file was “due

purely to the fault of [Diaz’s counsel] . . . [and] there was no conscious disregard of the Court’s

authority.” Id.

The plaintiffs argued in their show-cause brief that the court should not allow Diaz to file

his answer late, noting that the purpose of deeming the factual allegations as admitted under Rule

8(b)(6) is to avoid unfair surprise, and if the court permits Diaz to file an answer now, they would

be prejudiced because (1) they have relied on Diaz’s deposition testimony that he does not recall

reasons for certain employment actions; (2) they would be prejudiced by his “ever-changing

position”; (3) and if he had answered, they could have questioned him about what he states in his

answer during his deposition. Dkt. 209. In their late-filed response to the motion to file an answer,

they add that the court should not allow the answer because Diaz has not provided a reason for

failing to answer, the answer adds a completely new defense of failure to mitigate that was not

reflected in any other motion and Diaz “for the first time . . . asserts a counterclaim for costs and

attorney’s fees.” Dkt. 211.

The court finds that on balance there is good cause to allow Diaz to file his answer,

including his qualified immunity defense. It first addresses the length of delay and possibility of

prejudice. While certainly the substantial delay, which is apparent from the record, weighs

strongly against allowing the answer, here, notwithstanding the plaintiffs’ assertion in the show-

cause brief that the fact that they failed to raise the lack of an answer shifts the burden to them, it

is clear that they did not realize no answer was on file. There is no mention of a failure to respond

to their complaint in the responses to thirteen motions for summary judgment or even in their own

motion for summary judgment. Surely, if the plaintiffs believed that Diaz had admitted to all of

their claims by not filing an answer, this would have been one of the key arguments as to why

summary judgment should not be granted in Diaz’s favor and should be granted in the plaintiffs’

favor.

The plaintiffs argue in their show-cause brief that they did assert that Diaz admitted their

claims, and the court agrees that this general argument was part of their summary judgment

briefing. However, this argument was premised on Diaz’s failure to provide adequate responses

during his deposition; the lack of an answer was never discussed. Diaz argued in his thirteen

motions that the case should be dismissed on qualified immunity grounds, and the plaintiffs argued

in their thirteen responses that Diaz’s motions should be denied because clearly established law

precluded the conduct that the plaintiffs allege, and Diaz did not have adequate responses for his

actions during his deposition. The plaintiffs knew Diaz asserted qualified immunity and denied

their claims, at least generally, throughout discovery. The proposed answer is akin to a general

denial and contains no surprise reasons for Diaz’s actions that the plaintiffs would have needed to

explore during discovery.

The court next addresses the reason for the delay and whether Diaz acted in good faith.

Diaz contends it was a genuine mistake on the part of his counsel and should not be held against

Diaz. The plaintiffs argued in their show-cause brief that there is bad faith because Diaz did not

have adequate responses during his deposition. However, since Diaz did not realize his counsel

failed to file an answer, and indeed his counsel did not realize it, even if counsel’s failure to prepare

Diaz for his deposition or Diaz’s failure to provide answers during his deposition is “bad faith,” it

is not bad faith with regard to this issue. There is no indication that Diaz’s counsel failed to file

an answer and seeks to file one on this late date to somehow gain an unfair advantage or for some

other bad-faith reason. Rather, all roads point to a mistake on the part of counsel that had no real

prejudicial effect on the plaintiffs.

Because Diaz raised qualified immunity in his motion to dismiss and all of his motions for

summary judgment, and the plaintiffs never raised that Diaz failed to file an answer, the court finds

that allowing Diaz to file his generic answer and assert qualified immunity in the answer does not

unfairly prejudice the plaintiffs, even at this late date. The “technical failure to comply precisely

with Rule 8(c) is not fatal” so long as a “matter is raised in the trial court in a manner that does not

result in unfair surprise.” Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855–56 (5th Cir. 1983);

see Pasco ex rel. Paco v. Knoblauch, 566 F.3d 572, 577–78 (5th Cir. 2009) (finding that a 52-

month delay in filing a qualified immunity affirmative defense was not waived because there was

“substantial time” before trial for the plaintiff to respond to the defense). Here, the substance of

the answer and the qualified immunity defense cannot be said to be a surprise to any party involved

in this litigation. Additionally, while the plaintiffs assert that Diaz added a counterclaim for costs

and fees in the proposed answer, this request is actually contained in relatively standard prayer for

relief that should not have come as a surprise to any party. See Dkt. 207-1 (“Constable Diaz prays

he be released, discharged, and acquitted of all charges, allegations, and claims filed against him,

that judgment be rendered in Constable Diaz’s favor, either prior to or at the conclusion of a trial,

that Plaintiffs take nothing by reason of this suit, and that Constable Diaz recovers all costs of

court and attorney’s fees incurred in defending against the Plaintiffs’ claims, as well as other relief

to which Defendant is justly entitled in law and equity.”). He is simply asking the court to follow

the law with regard to fees and costs if the court rules in his favor.

However, there is one item in the proposed answer that would result in prejudice to the

plaintiffs since discovery has long-since passed and this case is ready to be set for trial. Diaz

attempts to assert a defense that the plaintiffs did not use reasonable diligence to mitigate claimed

damages. See Dkt. 207-1. While certainly the plaintiffs could have anticipated this defense, it was

not pled and, as far as the court is aware, was not asserted in any way prior to the motion to file an

answer. The plaintiffs therefore were unable to prepare for this defense during discovery, and it

would be prejudicial to allow the defendant to assert it now. Diaz has not met his burden of

demonstrating good cause to assert this defense this late in the litigation.

IV. CONCLUSION

In accordance with the analysis above, Diaz’s motion to file his proposed answer, contained

at docket entry 207, is GRANTED IN PART AND DENIED IN PART. Diaz may file the

proposed answer, but the defense asserted under “defenses” paragraph 3 is hereby STRICKEN.

Signed at Houston, Texas on September 1, 2022 f

Seniok United States District Judge

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