Watkins v. Housing Authority of the City of Hugo, The

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

RONESHA WATKINS, individually )

and as parent and next friend of S.S. and )

A.B., minors, )

)

Plaintiffs, )

)

v. ) Case No. CIV-23-178-RAW-GLJ

)

HOUSING AUTHORITY OF THE )

CITY OF HUGO, WADE AWTRY, )

GRASIELA STARLIN, HOUSING )

AUTHORITY OF THE CITY OF HUGO )

BOARD OF COMMISSIONERS, and )

CHRIS CANNON, )

)

Defendants. )

ORDER

This matter is before the Court on Plaintiffs’ Objection and Motion to Strike

Documents 60 and 61 and Brief in Support [Docket No. 62]. The Court referred this case

to the undersigned Magistrate Judge for all pretrial and discovery matters, including

dispositive motions,1 in accordance with 28 U.S.C. § 636(b) and Fed. R. Civ. P. 72 [Docket

No. 32]. Upon consideration of the motion, the Court finds Plaintiffs’ Objection and

Motion to Strike Documents 60 and 61 and Brief in Support [Docket No. 62] should be

DENIED.

1 Because this motion is non-dispositive of parties or claims, the undersigned Magistrate Judge

issues an Order pursuant to 28 U.S.C. § 636(b)(1)(A).

I. Background and Procedural History

Plaintiff Ronesha Watkins, on behalf of herself and two minor children, filed this

action on May 31, 2023, against the Housing Authority of the city of Hugo, Oklahoma, and

the Housing Authority of the City of Hugo Board of Commissioners, as well as individual

Defendants Wade Awtry, Grasiela Starlin, and Chris Cannon [Docket Nos. 1-2]. She filed

an Amended Complaint on the same day at the direction of the Court [Docket No. 6].

Plaintiffs allege the following seven causes of action: (I) violation of the Fair Housing Act

on the basis of sex, in violation of 42 U.S.C. § 3604(a)-(b); (II) disability discrimination in

violation of the Fair Housing Amendments Act, 42 U.S.C. § 3604(f)(1)(a), (2)(a), & (3)(b);

(III) violation of the Americans with Disabilities Act, 42 U.S.C. § 12131, et. seq.;

(IV) violation of the Rehabilitation Act of 1973, § 504; (V) breach of contract;

(VI) unconstitutional deprivation of property without due process, in violation of U.S.

Const. Amends. V & XIV, OK Const. Art. 2 § 7, and 42 U.S.C. § 1983; and (VII) violation

of the Violence Against Women Act, 42 U.S.C. § 12491, et. seq.

The parties filed a Joint Status Report (“JSR”) on December 8, 2023 [Docket No.

30]. Following several extensions of time, the Third Amended Scheduling Order in this

case set a discovery deadline of November 26, 2024, as well as a dispositive motion

deadline of January 6, 2025 [Docket No. 55]. On January 6, 2025, Defendant Hugo

Housing Authority (“HHA”)2 filed a motion for summary judgment (Docket No. 59), and

individual Defendants Chris Cannon, Wade Awtry, and Grasiela Starlin filed a joint motion

2 Defendant Housing Authority of the City of Hugo Board of Commissioners did not file a

dispositive motion.

for summary judgment (Docket No. 60). On January 7, Cannon, Awtry, and Starlin filed

an Amended Motion for Summary Judgment (Docket No. 61). Both Docket Nos. 60 and

61 indicated that the individual Defendants were joining the summary judgment motion

filed by HHA, but that their motion(s) focused on raising a qualified immunity defense that

applied solely to the individual defendants. See Docket No. 60, p. 4 & 61, p. 4. Plaintiffs

responded to HHA’s summary judgment motion but filed the present Motion to Strike as

to the motion and amended motion filed by the individual Defendants, asserting the

individual Defendants improperly filed a separate motion for summary judgment when

they joined HHA’s motion, violating Loc. Civ. R. 56.1(a) permitting only one summary

judgment motion filed by each party. Furthermore, Plaintiffs contend the motion should

be stricken because Defendants did not assert qualified immunity as a defense until these

summary judgment motions were filed.

II. Analysis

A. Filing of Multiple Motions for Summary Judgment.

“Generally[,] motions, briefs, and memoranda may not be attacked by a motion to

strike.” Ysais v. New Mexico Jud. Standard Comm’n, 616 F. Supp. 2d 1176, 1184 (D.N.M.

2009). “The exception to this principle is that a Court may choose to strike a filing that is

not allowed by local rule, such as a surreply filed without leave of court.” Id. (quotation

omitted). Plaintiffs assert the individual Defendants improperly filed three motions for

summary judgment. As an initial matter, though the amended motion [Docket No. 61] is

not timely and Defendants have made no request of the Court, it is clear the individual

Defendants intended for it to supersede the original motion [Docket No. 60]. Either the

Court will disallow the amended motion as untimely filed, or deny the original motion as

moot in light of the filing of the amended motion, but only one will remain at issue as

discussed below.

Pursuant to Loc. Civ. R. 56.1(a), “Absent leave of Court, each party may file only

one motion under Fed. R. Civ. P. 56.” Plaintiffs thus contend the Individual Defendants’

Motion and Amended Motion for Summary Judgment should be stricken because they

share common facts and legal arguments with HHA’s motion, and nothing prevent them

from asking for leave to file an overlength brief. The individual Defendants contend this

rule does not apply here, but to parties who file strings of motions, and that the procedure

here is common practice. Defendants contend that, either way, Plaintiffs will have to

respond to all contentions in HHA’s motion and does not perceive how Plaintiffs’ Response

will be different whether incorporated or not. Plaintiffs appear to argue that because the

individual Defendants stated they are participating in HHA’s motion, rather than making

reference to the motion and adopting the arguments, they are now required to respond to

multiple summary judgment motions from the same parties.

The Court chooses to resolve the motions on their merits, rather than striking the

individual Defendants’ amended motion on these grounds. See e.g., Lee v. Max Intern.,

LLC, 638 F.3d 1318, 1319 (10th Cir. 2011) (“Our justice system has a strong preference

for resolving cases on their merits whenever possible[.]”); Gripe v. City of Enid, Old., 312

F.3d 1184, 1187 (10th Cir. 2002) (noting the preference for determining a case on its

merits). The Court notes, however, that Defendants should carefully consider the

ramifications of multiple motions for summary judgment with multiple parties, and the

proper procedure for adopting and incorporating arguments by reference. Furthermore, the

Court notes that the Individual Defendants’ Amended Motion was filed out of time, without

leave of Court, and without an explanation for the differences between the original and

amended motion. Because the intervening motions practice has provided Plaintiffs with

sufficient notice, the Court declines to strike it. Counsel is cautioned, however, that future

failures may result in the amended motion being stricken and the late party being limited

to the facts and arguments contained in the timely motion. Here, the Court will strike the

original motion for summary judgment [Docket No. 60], as moot in light of the filing of

the amended motion [Docket No. 61].

B. Qualified Immunity Defense

Plaintiffs next contend the individual Defendants did not raise qualified immunity

as a defense until the motion for summary judgment was filed, and therefore they did not

receive sufficient notice of this affirmative defense. Defendants agree that they did not

identify qualified immunity as an affirmative defense in their Answer filed on October 28,

2023, but note that they did state, “Discovery has not begun. Defendants reserve the right

to add to or amend this Answer until the time of the Pretrial Conference.” Docket No. 28,

p. 10, ¶ 3. Additionally, the December 8, 2023 JSR states, “The individual Defendants

may be entitled to qualified immunity.” Docket No. 30, p. 2.

The liberal pleading rules established by the Federal Rules of Civil Procedure apply

to the pleading of affirmative defenses. Stapp v. Curry Co. Bd. of Comm., 672 Fed. Appx.

841, 846 (10th Cir. 2016). The Tenth Circuit instructs courts to avoid hyper-technicality

in pleading requirements and focus instead on enforcing the actual purpose of the rule. Id.

The purpose of Rule 8(c) Fed. R. Civ. P. is to give the opposing party notice of the defense

and an opportunity to respond. Ahmad v. Furlong, 435 F.3d 1196, 1201 (10th Cir. 2006).

The individual Defendants admittedly did not assert qualified immunity in their

Answer, but did place Plaintiffs on notice that additional affirmative defenses might be

raised. Plaintiffs contend they are prejudiced because depositions were conducted in the

summer of 2024 and discovery closed in November 2024, but the dispositive motion was

not filed until January 2025 and that was the first time they were placed on notice of the

affirmative defense. Clearly, “the best procedure is to plead an affirmative defense in an

answer or amended answer.” Ahmad, 435 F.3d at 1202. But this Circuit is clear that an

affirmative defense “is not necessarily waived if raised for the first time in a motion for

summary judgment.” Hart v. Oklahoma Dep't of Transportation, 2023 WL 2905580, at

*6 (W.D. Okla. Mar. 28, 2023) (citing Ahmad, 435 F.3d at 1202); see also Ahmad, 435

F.3d at 1201 (“Although failure to raise an affirmative defense under Rule 8(c) in a party's

first responsive pleading generally results in a waiver, where the matter is raised in the trial

court in a manner that does not result in unfair surprise technical failure to comply with

Rule 8(c) is not fatal.”) (quoting Giles v. General Elec. Co., 245 F.3d 474, 491 (5th Cir.

2001) (quotation omitted).

“To determine whether a Defendant may constructively amend their answer to

include an immunity defense, the Tenth Circuit has held that courts should apply the same

standards used to determine whether a defendant may amend their answer.” Lakey v. City

of Wilson, 2024 WL 2221675, at *7 (E.D. Okla. May 16, 2024) (citing Ahmad, 435 F.3d at

1202). Under this standard, a court may deny a constructive amendment of a pleading

when permitting amendment would cause the opposing party to suffer prejudice, or the

amendment is an attempt to make a pleading a “moving target” or “to salvage a lost cause

by untimely suggestion of new theories.” Sky Harbor Air Serv., Inc. v. Reams, 491 Fed.

Appx. 875, 884 (10th Cir. 2012) (quotation omitted). Additionally, “a motion to amend

may also be denied on grounds such as undue delay, bad faith or dilatory motive . . ., or

repeated failure to cure deficiencies by amendments previously allowed.” Ahmad, 435

F.3d at 1202 (quotations omitted).

In applying the above analysis, the Court finds Plaintiffs were on notice with the

filing of the JSR—submitted less than two months following the filing of the Answer and

11 months prior to the ultimate discovery deadline in this case—that the individual

Defendants intended to assert qualified immunity. Creative Consumer Concepts, Inc. v.

Kreisler, 563 F.3d 1070, 1076 (10th Cir. 2009) (“Rule 8(c)’s ultimate purpose is ‘simply

to guarantee that the opposing party has notice of any additional issue that may be raised

at trial so that he or she is prepared to properly litigate it. When a plaintiff has notice that

an affirmative defense will be raised at trial, the defendant's failure to comply with Rule

8(c) does not cause the plaintiff any prejudice. And, when the failure to raise an affirmative

defense does not prejudice the plaintiff, it is not error for the trial court to hear evidence on

the issue.’”) (quoting Hassan v. U.S. Postal Service, 842 F.2d 260, 263 (11th Cir. 1988)).

Furthermore, the Court finds no undue delay, bad faith, or dilatory motive.

Accordingly, while it is true that Defendants Awtry, Starlin, and Cannon did not

explicitly plead qualified immunity in their Answer [Docket No. 28] and it would have

been preferable for them to do so properly, Plaintiffs were not prejudiced, and Defendants

did not omit the defense for the purpose of delay or out of bad faith. Therefore, Defendants

Awtry, Starlin, and Cannon may “constructively amend” their answer by raising qualified

immunity in their Amended Motion for Summary Judgment. “Plaintiff’s arguments that

she could not conduct discovery on the defense and that she had no notice of the defense

until January 202[5] when Defendant[s filed their Motion for Summary Judgment] ring

hollow.” Thornton v. Kendall, 2022 WL 22895988, at *2 (W.D. Okla. Mar. 24, 2022).

While Plaintiffs filed the present motion rather than responding substantively to the

individual Defendants’ summary judgment motion regarding qualified immunity, the Court

will afford Plaintiffs the opportunity to now respond. See, e.g., Miles v. Am. Red Cross,

2017 WL 4349013, at *2 (N.D. Okla. Sept. 29, 2017) (“District courts in this circuit have

allowed amendment at the summary judgment stage and declined to find prejudice where

the plaintiff has challenged the newly raised defenses on the merits.”).

Conclusion

Accordingly, Plaintiffs’ Objection and Motion to Strike Documents 60 and 61 and

Brief in Support [Docket No. 62] is hereby DENIED. The Individual Defendants’ Motion

for Summary Judgment and Brief in Support on Qualified Immunity [Docket No. 60] is

DENIED AS MOOT. Plaintiffs are directed to file a Response to the Individual

Defendants’ Amended Motion for Summary Judgment and Brief in Support on Qualified

Immunity [Docket No. 61] within fourteen days of the date of this order, or by March 5,

2025. Any Reply Brief will be due fourteen days following the date of the Response, or

by March 19, 2025.

IT IS SO ORDERED THIS 19th day of February, 2025.

____________________________________

HON. GERALD L. JACKSON

UNITED STATES MAGISTRATE JUDGE