# Rivera v. Harris County

> District Court, S.D. Texas · September 1, 2022

URL: https://www.frixlaw.com/law-library/cases/10675751

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** September 1, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10675751

## How later opinions describe it (automated extraction)

- 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

## Opinion text

UNITED STATES DISTRICT COURT September 01, 2022
SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

JERRY LUMAN, et al., §
§
Plaintiffs, §
§
v. § CIVIL ACTION H- 19-4920
§
CHRISTOPHER DIAZ, et al., §
§
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

10

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10675751. Public record. Not legal advice.