Pompa v. Otis Elevator Company

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF ILLINOIS

PEORIA DIVISION

MELODY POMPA, )

)

Plaintiff, )

)

v. ) Case No. 1:25-cv-01319-MMM-RLH

)

OTIS ELEVATOR COMPANY, )

)

Defendant. )

ORDER & OPINION

This is a negligence case that began in Illinois state court. After removing it to

this Court, Defendant Otis Elevator Company (“Otis”) filed an answer, asserting

twenty-three affirmative defenses. Plaintiff Melody Pompa (“Pompa”) has moved to

strike the lion’s share of those defenses under Federal Rule of Civil Procedure 12(f).

Although Otis did not respond to that motion before the deadline, it has requested an

extension of time to do so. For the reasons explained below, Pompa’s Motion to Strike

(doc. 4) is GRANTED in part and DENIED in part. Otis’s Motion for an Extension of

Time (doc. 5) is DENIED.

BACKGROUND

The Court recounts only the facts necessary to resolve the motion. Pompa, who

worked at the OSF Cancer Institute, alleges that she was injured on the job when an

elevator door closed prematurely, striking her left arm and shoulder. (Doc. 1-1 at 10).

After the incident, she filed a three-page complaint, claiming that Otis was negligent

for failing to service the elevator and for wrongfully deactivating its sensors. (Doc. 1-

1 at 9–10). In its answer, Otis asserted twenty-three affirmative defenses, (doc. 3 at

1–8), and Pompa has moved to strike twenty-one of them, (doc. 4 at 2).

LEGAL STANDARD

In diversity cases, the “manner and details of pleading are governed by the

Federal Rules of Civil Procedure”—including those that apply to affirmative defenses.

5 Wright & Miller’s Federal Practice & Procedure § 1204 (4th ed. 2025); see also

Renalds v. S.R.G. Rest. Grp., 119 F. Supp. 2d. 800, 802 (N.D. Ill. 2000). An affirmative

defense “limits or excuses a defendant’s liability even if the plaintiff establishes a

prima facie case.” Tober v. Graco Child.’s Prods., Inc., 431 F.3d 572, 579 n.9 (7th Cir.

2005). To assert such a defense, a party must include a “short and plain statement”

of the defense that is “concise and direct.” Fed. R. Civ. P. 8(b), (d). In addition, the

party must provide enough facts to ensure adverse parties have “notice of the specific

defense or defenses” asserted. EBC Asset Inv., Inc. v. Sullivan Auctioneers, LLC, No.

13-1378, 2014 WL 903955, at *5 (C.D. Ill. Mar. 7, 2014). Thus, “boilerplate defenses”

or “mere placeholders without any apparent factual basis” are insufficient. Dorsey v.

Ghosh, No. 13-cv-05747, 2015 WL 3524911, at *4 (N.D. Ill. June 3, 2015).

Federal Rule of Civil Procedure 12(f) allows courts to police these requirements

by striking “an insufficient defense or any redundant, immaterial, impertinent, or

scandalous matter” from the pleadings. Although motions to strike are generally

disfavored because they tend to consume judicial resources, they may expedite the

case by removing unnecessary clutter. See Heller Fin., Inc. v. Midwhey Powder Co.,

883 F.2d 1286, 1294 (7th Cir. 1989).1

DISCUSSION

The affirmative defenses that Pompa asks this Court to strike fall into three

broad categories: (1) those that are improper as a matter of law, (2) those that are

insufficiently pled because they lack a factual basis, and (3) those that are adequately

pled. The court addresses each category in turn.

I. Otis’s first and fifteenth affirmative defenses, as well as its reservation

of rights to amend, are improper as a matter of law.

A. First Affirmative Defense

Otis first asserts that Pompa’s complaint “fails to state a claim against Otis

upon which relief can be granted and should be dismissed pursuant to Fed. R. Civ. P.

12(b)(6).” (Doc. 3 at 2). But the failure to state a claim “is not technically an

affirmative defense, and the proper vehicle to establish a failure to state a claim

defense is to raise a Rule 12(b)(6) motion.” Raquet v. Allstate Corp., 348 F. Supp. 3d

775, 786 (N.D. Ill. 2018). If Otis wants to challenge the complaint for failure to state

a claim, then a Rule 12(b) motion—not an affirmative defense—would be the

appropriate way of doing so. Accordingly, the Court strikes this affirmative defense.

B. Fifteenth Affirmative Defense

Otis’s fifteenth affirmative defense asserts that Pompa’s injury “could have

happened despite all due care,” and, similarly, that Otis “could not have prevented

1 Notably, the Seventh Circuit has yet to address whether the Twombly-Iqbal standard applies to

affirmative defenses, but courts in the circuit have generally held that they do. See People by Madigan

v. CMK Invs., Inc., No. 14-c-2783, 2015 WL 4038896, at *1 (N.D. Ill. June 30, 2015.

the incident alleged from occurring despite all due care.” (Doc. 3 at 5). Pompa

challenges it on the ground that she “must now conduct discovery to understand what

[Otis] is talking about.” (Doc. 4 at 10).

The problem with this affirmative defense, however, is not its lack of

specificity. The problem is that it’s not an affirmative defense at all. Indeed, an

affirmative defense is “a defendant’s assertion of fact and arguments that, if true, will

defeat the plaintiff’s claim,” even if “the plaintiff establishes a prima facie case.” Bell

v. Taylor, 827 F.3d 699, 704–05 (7th Cir. 2016) (cleaned up). And a prima facie case

of negligence in Illinois, as in most states, requires plaintiffs to prove a legal duty

owed to them, a breach of that duty, and an injury proximately caused by that breach.

Simpkins v. CSX Transp., Inc., 965 N.E.2d 1092, 1096 (Ill. 2012) (explaining the

elements of negligence). Here, Otis claims in essence that it acted with due care—in

other words, that Pompa cannot prove the second element of her prima facie case.

That is “simply a denial of [Pompa’s] allegations,” and is therefore not properly pled

as an affirmative defense. Bell, 827 F.3d at 705. Accordingly, the Court strikes this

affirmative defense.

C. Reservation of Rights to Amend

At the end of its answer, Otis includes a “Reservation of Rights” to amend its

existing affirmative defenses or to add more of them. (Doc. 3 at 8). “It is unnecessary

to expressly reserve that right in a pleading,” however, because “the district court has

the discretion” to determine whether a defendant is entitled to amend its answer.

Fed. Deposit Ins. Corp. v. Giannoulias, No. 12-c-1665, 2014 WL 3376892, at *9 (N.D.

Ill. July 10, 2014) (emphasis added) (quoting Wallace v. City of Chicago, F. Supp. 2d

942, 946 (N.D. Ill. 2004)) (striking identical language from the defendant’s answer

because it was a “legal nullity”). As Pompa correctly observes, this affirmative defense

is improper. Accordingly, the Court strikes it.

II. The majority of Otis’s affirmative defenses lack a factual basis and are

thus inadequate under the Federal Rules of Civil Procedure.

The majority of Otis’s affirmative defenses lack concrete facts and thus fail to

provide notice of the grounds upon which they rest. The purpose of notice pleading,

however, is to “appris[e] opposing counsel and [the] Court of the predicate for the

claimed defense.” State Farm Mut. Auto Ins. Co. v. Riley, 119 F.R.D. 276, 279 (N.D.

Ill. 2001). For that reason, “it is unacceptable for a party’s attorney simply to mouth

[affirmative defenses] in a formula-like fashion” without explaining how the defense

applies to the case at hand. Id.

Two cases illustrate the point. In Reis Robotics USA, Inc. v. Concept Indus.,

Inc., the court struck from the defendant’s answer an affirmative defense that said,

in full, “[Plaintiff’s] claims are barred or limited by laches, waiver, estoppel, unclean

hands, or similar legal or equitable doctrines.” 462 F. Supp. 2d 897, 907 (N.D. Ill.

2006). The court explained that this language was insufficient to put the plaintiff on

notice of the basis for the defense. See id. Similarly, in Dorsey v. Ghosh, the court

struck an affirmative defense which stated that the plaintiff’s claim “violates the

applicable two-year statute of limitations as applied to the alleged acts of this

defendant.” 2015 WL 3524911, at *5. The court reasoned that the defendant

“plead[ed] no facts that would raise” the defense beyond “a speculative level.” Id.

As those cases demonstrate, Rule 8 requires defendants to inform adverse

parties of both the factual and legal grounds for their affirmative defenses. With that

in mind, the Court now turns to Otis’s affirmative defenses that fail to do so.

a. Second, Third, Fourth, and Seventh Affirmative Defenses

Otis’s second, third, fourth, and seventh affirmative defenses largely follow the

same formula. They state as follows:

• Second Affirmative Defense. If Plaintiff suffered any of the injuries,

losses, and damages alleged in Plaintiff's Complaint, then said injuries,

losses, and damages were a direct and proximate result of a responsible,

efficient, superseding, intervening cause.

• Third Affirmative Defense. If Plaintiff sustained any of the injuries,

losses, and damages alleged in Plaintiffs Complaint, then said injuries,

losses, and damages were caused solely by the acts or omissions of

persons other than Otis and over whose conduct Otis had no control,

right to control, responsibility, or reason to anticipate.

• Fourth Affirmative Defense. If Plaintiff suffered any of the injuries,

losses and damages alleged in Plaintiffs Complaint, then said injuries,

losses and damages were a direct and proximate result of Plaintiffs own

negligence or contributory conduct. Plaintiff’s claims are accordingly

barred in whole or in part and Otis is entitled to have the conduct of the

parties to this litigation apportioned as required by applicable law.

• Seventh Affirmative Defense. Otis affirmatively states the incident

was caused by events and circumstances beyond its knowledge, beyond

the scope of prudent human foresight, and beyond Otis’ ability to

prevent or control, and therefore Otis could not have been negligent.

(Doc. 3 at 3–4).

Pompa argues that these defenses are improper because they lack a factual

basis. The Court agrees. Otis does not say what other causes may have contributed

to Pompa’s alleged injury; whose conduct—if not Otis’s—may have caused it; how

Pompa was contributorily negligent; or why the incident was beyond Otis’s power to

control or prevent. Nowhere does Otis articulate facts unique to Pompa or to the

circumstances of this case. In short, these are “boilerplate defenses” that act as “mere

placeholders without any apparent factual basis” and so fall short of Rule 8’s pleading

requirements. Dorsey, 2015 WL 3524911, at *4. Accordingly, the Court strikes Otis’s

second, third, fourth, and seventh affirmative defenses.

b. Fifth and Sixth Affirmative Defenses

Otis’s fifth and sixth affirmative defenses claim, respectively, that Pompa’s

lawsuit is barred by (1) “the legal doctrine of assumption of risk, both express and

implied,” and (2) “the doctrines of waiver, laches, and/or estoppel.” (Doc. 3 at 3).

Again, Pompa takes issue with the lack of factual allegations that would connect

those legal doctrines to this case. And again, the Court agrees. Otis fails to clarify

how Pompa assumed the risk of injury or what facts would give rise to those equitable

defenses. See Raquet, 348 F. Supp. 3d at 786 (striking the defendant’s waiver and

estoppel defenses because the defendant did not indicate “which facts support each of

the separate defenses”); see also Reis Robotics USA, Inc., 462 F. Supp. 2d at 907

(striking an identical affirmative defense for the same reason). Accordingly, the Court

strikes Otis’s fifth and sixth affirmative defenses.

c. Tenth Affirmative Defense

Otis next raises a failure to mitigate defense, asserting that Pompa “may have

failed to obtain appropriate and timely medical attention, and/or failed to follow or

adequately follow a prescribed course of medical treatment.” (Doc. 3 at 4). Pompa

argues that this affirmative defense runs afoul of Illinois pleading rules because

Illinois is a “fact-pleadings jurisdiction.” (Doc. 4 at 8).

Yet under Erie, the Federal Rules of Civil Procedure govern the pleadings

“regardless of the source of substantive law.” 5 Wright & Miller’s Federal Practice &

Procedure § 1204; see also, e.g., Hernas v. City of Hickory Hills, 507 F. Supp. 103 (N.D.

Ill. 1981) (declining to apply Illinois’s “strict pleading requirements,” even where

Illinois substantive law provided the rule of decision). Even so, Otis’s failure to

mitigate defense is insufficiently pled—even under the more lenient federal regime.

That is because Otis’s statements about what Pompa may or may not have done

following her injury amount to little more than speculation about “possible defenses

that” may arise in the future. EBC Asset Inv., Inc., 2014 WL 903955, at *5.

Accordingly, the Court strikes Otis’s tenth affirmative defense.

d. Eleventh and Thirteenth Affirmative Defenses

Otis’s eleventh and thirteenth affirmative defenses share a similar defect.2

They state as follows:

• Eleventh Affirmative Defense. Otis states that the negligence of

parties and non-parties must be apportioned and delineated, and that

Otis is only responsible for the percentage of negligence attributable to

it when taken and treated in comparison with the negligence of Plaintiff

and the negligence of third parties or entities not parties to this suit.

Otis reserves the right to amend this affirmative defense to include the

name of any other party as is learned throughout this litigation.

• Thirteenth Affirmative Defense. The subject equipment was

substantially altered, improperly maintained by entities other than

Otis, and/or improperly repaired by persons and/or entities other than

Otis and for whom Otis is not responsible, and the legal cause of the

2 Pompa does not challenge Otis’s twelfth affirmative defense. (See Doc. 4 at 9).

injuries and damages of which Plaintiff complains was the substantial

alteration, improper maintenance, and/or improper repair, such that

Otis is not liable to Plaintiff.

(Doc. 3 at 4–5). Otis’s eleventh and thirteenth affirmative defenses are substantively

indistinguishable from its second and third. That is, Otis in effect claims that other

parties are responsible for Pompa’s injury. But Otis fails to identify who else may

have caused the injury, or how they did so. That is insufficient provide notice of the

factual basis for the defense. See EBC Asset Inv., Inc., 2014 WL 903955, at *5.

Accordingly, the Court strikes Otis’s eleventh and thirteenth affirmative defenses.

e. Fourteenth Affirmative Defense

The next affirmative defense states that Otis’s agreement with the owner of

the building absolves it of liability:

Any duties or obligations Otis may have are specifically defined and

limited by the terms and conditions of its maintenance agreement with

the building owner, as well as those imposed by virtue of the applicable

statutes and codes promulgated and/or adopted by the Illinois

Legislature. Otis’ specific contractual duties do not inure to the benefit

of Plaintiff, and Plaintiff does not have any separate standing to enforce

those contractual duties.

(Doc. 3 at 4). Otis fails to specify which terms of its contract with the building owner

(or which Illinois statutes) limit its legal duties. That makes sense, given that Illinois

courts treat a person’s duty of care in negligence cases as a matter of common law; it

is not prescribed by statute. See Simpkins, 965 N.E.2d at 1097 (enumerating several

factors courts use to determine whether a duty of care existed). If Otis believes a

relevant statute (or contract term) defeats Pompa’s claim, it would be required to

identify which one. Asking Pompa to wade through the Illinois Compiled Statutes to

determine the nature of this defense is antithetical to Rule 8’s requirement of a “short

and plain” statement that is “simple, concise, and direct.” Accordingly, the Court

strikes Otis’s Fourteenth affirmative defense.

f. Seventeenth Affirmative Defense

While nearly a page in length, Otis’s seventeenth affirmative defense boils

down to the following: (1) Pompa paid too much for her hospital bills, (2) those bills

are inadmissible into evidence, and (3) Otis “reserves the right” to introduce evidence

of prevailing rates for similar treatment in the community. (See Doc. 3 at 7–8). Pompa

argues that this is not a true “affirmative defense,” and that evidentiary questions

are more appropriately raised in a motion in limine. (Doc. 4 at 12). The Court agrees.

Although Otis will be entitled to dispute the existence and amount of Pompa’s

damages, an affirmative defense is not the way to do so. See Bell, 827 F.3d at 705.

Accordingly, the Court strikes Otis’s Seventeenth affirmative defense.

g. Twentieth Affirmative Defense

In its twentieth affirmative Defense, Otis invokes the product misuse doctrine:

“Plaintiff’s complaint is barred by the legal doctrine of produce misuse as the same is

applied under Illinois law to the facts and circumstances set forth in Plaintiff’s

complaint.” (Doc. 3 at 7). It is unclear whether that doctrine applies to this case, as

Pompa’s sole cause of action is for ordinary negligence—not products liability. See

Williams v. Brown Mfg. Co., 261 N.E.2d 305, 309 (Ill. 1970) (stating that the doctrine

of product misuse bars recovery when a person uses a product “for a purpose neither

intended nor foreseeable”). In any event, this affirmative defense is a bare legal

conclusion not permitted by Rule 8. See Dorsey, 2015 WL 3524911, at *4; see also

Sarkis’ Cafe, Inc. v. Sarks in the Park, LLC, 55 F. Supp. 3d 1034, 1040 (N.D. Ill. 2014)

(stating that “[t]hreadbare recitals of the elements” and “conclusory statements” are

insufficient under Rule 8). Accordingly, the Court strikes Otis’s twentieth affirmative

defense.

h. Twenty-First, Twenty-Second, and Twenty-Third Affirmative

Defenses

Otis’s final three affirmative defenses share the same defect. In them, Otis

“pleads the limitations and provisions set forth in” various Illinois statutes, including

735 ILCS 5/13-213 (products liability statute of repose), 5/13-214 (four-year statute

of limitations for actions based on construction of real property); 5/2-604.1 (barring

punitive damages for negligence); and 5/2-1115.0.5 (same). (Doc. 3 at 7–8).

As above, it is unclear whether or to what extent these various statutes apply

to this case. Pompa asserts that she has not “requested punitive damages at this

point.” (Doc. 4 at 14). The problem with these affirmative defenses is that Otis cites

a variety of statutes without explaining how they apply to this case, making them

conclusory and insufficient to provide notice of the grounds for the defense. See

Sarkis’ Cafe, Inc., 55 F. Supp. 3d at 1040 (N.D. Ill. 2014) (striking affirmative defenses

that were pled in “broad terms” and without “any factual support”). Accordingly, the

Court strikes Otis’s twenty-first, twenty-second, and twenty-third affirmative

defenses.

III. Otis’s remaining affirmative defenses are adequately pled.

Pompa also asks the Court to strike Otis’s eighth, ninth, sixteenth, and

nineteenth affirmative defenses. The Court declines to do so. Those defenses are

adequately pled, and Pompa’s request would require the Court to resolve complex

questions of Illinois negligence law that are more appropriately addressed at a later

stage.

a. Eighth Affirmative Defense

In its eighth affirmative defense, Otis says that it lacked knowledge of the

allegedly defective condition of the elevator:

Otis states that its knowledge of any alleged danger was in no way

superior to that of Plaintiff’s own knowledge, and therefore no duty to

warn arose. Specifically, Otis had no prior notice, either actual or

constructive, of the conditions alleged to have been defective, and

therefore cannot be held liable as a matter of law.

(Doc. 3 at 4). Pompa argues that this affirmative defense fails to specify which

allegedly defective “condition” Otis lacked notice of. But, from the circumstances of

the case and the tenor of Pompa’s complaint, the “condition” in question is clearly the

elevator. And unlike Otis’s affirmative defenses that speculate about what Pompa did

or did not do, this paragraph speaks directly to Otis’s knowledge—or lack thereof—

about the defective elevator. That is sufficient at this stage of the proceedings. See,

e.g., Dorsey, 2015 WL 3524911, at *5 (declining to strike a failure to exhaust defense

because the parties and the court could easily infer the grounds for the defense).

Accordingly, the Court finds this defense adequately pled.

b. Ninth Affirmative Defense

In its ninth affirmative defense, Otis says that it cannot be liable because it

was “not the premises owner or the agent of the premises owner, and the elevator and

premises were not under the exclusive control of Otis.” (Doc. 3 at 4). In response,

Pompa argues that this case is “pled upon ordinary negligence under Illinois law for

failure to service and inspect an elevator that failed to operate property [sic]” and

that “Plaintiff has not sued under an agency theory.” (Doc. 4 at 8).

Pompa may be correct when she says that notice of the defect is immaterial to

whether Otis was negligent because this is not a premises liability case. See, e.g.,

Greenhill v. REIT Mgmt. & Rsch., LLC, 156 N.E.3d 1, 14–15 (Ill. App. Ct. 2019)

(noting that the plaintiff “arguably is not required to prove that [the defendant] had

notice” of a defective elevator because defendant was not the landowner). Then again,

Otis’s level of control over the instrumentality of the harm—the elevator—may be

relevant to the scope of its liability. See, e.g., Harris Trust & Sav. Bank v. Otis

Elevator Co., 696 N.E.2d 697, 704 (Ill. App. Ct. 1998) (holding, under similar facts,

that plaintiff’s negligence theory required it to prove that the elevator “was within

the defendant’s exclusive control”). In any case, Pompa’s arguments implicate

complex questions of Illinois negligence law that need not be resolved at this stage,

nor is Otis’s ninth affirmative defense “insufficient on the face of the pleadings.”

Heller Fin., Inc., 883 F.2d at 1294. Accordingly, the Court finds this defense

adequately pled.

c. Sixteenth Affirmative Defense

Next, Otis states that it is “entitled to a presumption” that the elevator was

“safe for public use” because it was “inspected by the State of Illinois” who “confirmed

that the subject equipment identified in the operative complaint complied with all

applicable government codes, statutes, regulations, or standards.” (Doc. 3 at 5–6). In

moving to strike this defense, Pompa maintains that (1) it is inconsistent with earlier

portions of Otis’s answer disclaiming knowledge of whether an inspection occurred,

and (2) she is “unaware of any legal principle” that creates a presumption the elevator

was safe. (Doc. 4 at 11.)

Rule 8, however, explicitly allows a party to “state as many separate claims or

defenses as it has, regardless of consistency.” Fed. R. Civ. P. 8(d)(3). And the question

whether routine inspections of the elevator are relevant to Otis’s exercise of due care

is, again, a question of Illinois negligence law that need not be resolved at this stage

of the proceedings. Accordingly, the Court finds this defense adequately pled.

d. Nineteenth Affirmative Defense

Otis’s next affirmative defense argues that Pompa’s complaint should be

dismissed because “Plaintiff has failed to join parties.”3 (Doc. 3 at 7.) In response,

Pompa observes that Otis has not identified which parties should be joined, and that

this is not a proper affirmative defense. (Doc. 4 at 12).

True, the failure to join a necessary party may be raised by a Rule 12(b)(7)

motion. See Fed. R. Civ. P. 12(b)(7) (explaining that a party may assert, by motion,

3 Pompa does not challenge Otis’s eighteenth affirmative defense. (See Doc. 4 at 12).

“failure to join a party under Rule 19”). Yet courts in this circuit have held that it

may also be raised in an answer. E.g., Coastal Funding, LLC v. Title Assurance Co.

R.R.G., No. 16-C-2392, 2017 WL 11885399, at *3 (N.D. Ill. Aug. 10, 2017) (citing

Escobedo v. Oswego Junction Enterprises LLC, No. 17-C-682, 2017 WL 3430643, at

*5 (N.D. Ill. July 24, 2017)). That said, a party “who asserts the defense of failure to

join assumes the burden of proving that the absent party is necessary for a just

adjudication of the claims.” Thiel v. Libertyville Police Dept., No. 94-C-2505, 1994 WL

673069, at *1 (N.D. Ill. Nov. 28, 1994). Thus, Otis may challenge the complaint for

failure to join a party, but it will bear the burden of proving who that party is and

why the case cannot proceed in their absence. Accordingly, the Court finds Otis’s

nineteenth affirmative defense adequately pled.

IV. Prejudice

At the end of her motion to strike, Pompa argues that Rule 12(f) requires her

to show that she will suffer prejudice if Otis’s affirmative defenses are allowed to

stand. (Doc. 4 at 4). It is unclear, however, whether that requirement is commanded

by Rule 12’s text, or has instead developed as a matter of judicial practice. See

Anderson v. Bd. Of Educ. of City of Chicago, 169 F. Supp. 2d 864, 868 (N.D. Ill. 2001)

(explaining that motions to strike “are frequently denied when no prejudice could

result from the challenged” pleading). In any case, it is settled that “courts should

strike affirmative defenses that either fail to meet basic pleading requirements,” “add

unnecessary clutter to a case,” or amount to “bare legal conclusions.” Intercon

Solutions, Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1059 (N.D. Ill. 2013).

Because many of the affirmative defenses discussed above satisfy one or more of those

criteria, the Court finds that striking them is warranted.

V. Otis’s Motion for an Extension of Time

Also before the Court is Otis’s Motion for an Extension of Time to respond to

Pompa’s Motion to Strike. (Doc. 5). Because that request is untimely, and because

denying it would not create a substantial injustice, the Court will deny it.

Pompa filed her motion to strike on August 22, 2025, which meant that Otis

was required to respond by September 5, 2025. See Civil LR 7.1(B)(2) (explaining that

a party’s response to a motion “must be filed within 14 days”). Otis did not do so. One

week after the deadline had elapsed, however, Otis moved for an extension of time to

file its response. (Doc. 5). Otis explained that, although Pompa did not object to Otis’s

responding at a later date, its counsel “inadvertently failed to file a motion for

extension before the original” deadline. (Doc. 5 at 1).

The Civil Local Rules provide the standards that courts in this district use to

evaluate motions to extend time. And they set a high bar for parties to overcome when

they request to extend a deadline that has already passed. Those requests “will be

denied, unless the presiding judge determines that such denial would create a

substantial injustice.” Civil LR 6.1 (emphasis added). Otis asserts that a substantial

injustice would result from denying its motion because it would “prejudic[e] Otis’

ability to plead its affirmative defenses.” (Doc. 5 at 1). The Court disagrees.

Otis will not suffer prejudice because it will have ample opportunity to amend

its affirmative defenses to comply with the requirements outlined in this Order. That

is because Federal Rule of Civil Procedure 15(a)(2) sets a “lenient standard” that

parties must satisfy to amend their pleadings. Bopp Law Firm, PC v. true the Vote,

Inc., No. 2:23-cv-00120, 2024 WL 4554000, at *2 (S.D. Ind. Oct. 23, 2024). In practice,

a request to amend will be denied “only if there is undue prejudice, undue delay, bad

faith, or if the amendment will be futile.” Id.; see also Teton Homes Europe v. Forks

RV, 2010 WL 3980254, at *3 (N.D. Ind. Oct. 8, 2010) (allowing defendant to amend

complaint when the parties were “still conducting discovery and no dispositive

motions [had] been filed”). As even Pompa concedes, Otis “can seek leave to file an

Amended Answer if new affirmative defenses become apparent based upon any

discovery conducted,” so long as she is not prejudiced as a result.4 (Doc. 4 at 14). Thus,

if Otis learns new information—through discovery or otherwise—that it believes

supports a valid affirmative defense, Otis will be free to request the Court’s leave (or

Pompa’s consent) to amend its answer. See Fed. R. Civ. P. 15(a)(2).

CONCLUSION

IT IS THEREFORE ORDERED that Pompa’s Motion to Strike (doc. 4) is

GRANTED as to Otis’s first, second, third, fourth, fifth, sixth, seventh, tenth,

eleventh, thirteenth, fourteenth, fifteenth, seventeenth, twentieth, twenty-first,

twenty-second, and twenty-third affirmative defenses, as well as Otis’s reservation of

rights. Pompa’s Motion to Strike is DENIED, however, as to Otis’s eighth, ninth,

4 The Court notes that a request to amend Otis’s first or fifteenth affirmative defense, or its reservation

of rights, would likely be futile because, as discussed, those affirmative defenses are improper as a

matter of law. See supra Parts I.A–C. Nonetheless, because Otis has not yet requested leave to amend

its answer, the Court does not have before it any arguments about whether those amendments would

comply with Rule 15. See Fed. R. Civ. P. 15(a) (noting that courts should grant leave to amend “when

justice so requires”). The Court will thus reserve judgment on whether Otis may amend any of the

affirmative defenses discussed in this Order unless and until Otis requests to do so.

sixteenth, and nineteenth affirmative defenses. Otis’s Motion for an Extension of

Time (doc. 5) is DENIED.

SO ORDERED.

Entered this 16th day of September 2025.

s/ Ronald L. Hanna

Ronald L. Hanna

United States Magistrate Judge