Jordan v. Ensco Offshore Company, No. 2:2015cv01226 - Document 117 (E.D. La. 2016)

Court Description: ORDER AND REASONS granting 81 Motion to Strike 64 Allegations of Fraud in Proposed Pretrial Order. Signed by Judge Susie Morgan. (bwn)

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Jordan v. Ensco Offshore Company Doc. 117 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A KEVIN JORD AN Pla in tiff CIVIL ACTION VERSU S N O. 15 -12 2 6 EN SCO OFFSH ORE COMPAN Y D e fe n d an t SECTION : “E” ( 1) ORD ER AN D REAS ON S Before the Court is Plaintiff Kevin J ordan’s m otion to strike allegations of fraud in the proposed pre-trial order. 1 The m otion is opposed. 2 For the reasons that follow, the m otion to strike is GRAN TED . Plaintiff m oves to strike Defendant ENSCO Offshore Com pany’s allegations of fraud in the pre-trial order. Plaintiff argues the allegations of fraud first appeared in the pre-trial order, having not been raised in any of Defendant’s answers or prior filings. 3 For that reason, Plaintiff contends the defense of fraud has been waived and cannot now be asserted by Defen dant. Fraud is classified as an affirm ative defense under Federal Rule of Civil Procedure 8 (c)(1). 4 Rule 8(c) requires that affirm ative defenses m ust be affirm atively pleaded in the answer or raised as a cause of action in a counterclaim ; otherwise, the defense is deem ed waived. 5 In the parties’ proposed pre-trial order, the Defendant lists as a contested issue of fact: “Whether Kevin J ordan is com m itting a fraud on Ensco in m aking this claim for 1 R. Doc. 81. R. Doc. 87. 3 R. Doc. 81-1 at 1. 4 See also Callon Petroleum Co. v. Frontier Ins. Co., No. Civ.A. 0 1-150 2, 20 0 2 WL 31819127, at *2 (E.D. La. Dec. 11, 20 0 2). 5 See, e.g., F ED . R. CIV. P. 8(c); Higgins v. N MI Enterprises, Inc., No. 0 9-6594, 20 12 WL 5997951, at *8 (E.D. La. Nov. 30 , 20 12); GE Capital Com m ercial, Inc. v. W right & W right, Inc., No. 3:0 9-CV-572-L, 20 11 WL 13758, at *1 (N.D. Tex. J an. 4, 20 11); Polles v. Federal Deposit Ins. Corp., 749 F. Supp. 136, 138 – 39 (N.D. Miss 1990 ). 2 1 Dockets.Justia.com dam ages.”6 Also, listed as a contested issue of law in the proposed pre-trial order is: “Whether Kevin J ordan is com m itting a fraud in bringing this claim .”7 The Defendant also notes in the proposed pre-trial order that J oanna J ordan, the Plaintiff’s ex-wife, an d Marti George, Plaintiff’s form er m other-in-law, both have “knowledge of fraud.”8 J oanna J ordan an d Marti George are both listed as defense witnesses. Defendant did not allege fraud as a defense in its answer, nor did Defendant assert fraud as a cause of action in a counterclaim against Plaintiff. Allegations of fraud first appeared as an issue in this case in the proposed pre-trial order, which was filed into the record on April 25, 20 16. As a result, the defense was waived and m ay not be raised as an affirm ative defense at trial. Moreover, perm itting the Defendant to pursue the affirm ative defense of fraud would be unjust and would greatly prejudice the Plaintiff, given that fraud was first alleged as a defense in the proposed pre-trial order, approxim ately one m onth before trial. The Court hereby strikes the allegations of fraud in the proposed pre-trial order. As stated above, Defendant lists as a contested issue of fact: “Whether Kevin J ordan is com m itting a fraud on Ensco in m aking this claim for dam ages.”9 Also, listed as a contested issue of law is: “Whether Kevin J ordan is com m itting a fraud in bringing this claim .”10 Both allegations are stricken from the proposed pre-trial order. Furtherm ore, the jury will not be instructed on fraud as an affirm ative defense. The Defendant will, however, be perm itted to introduce evidence that the Plaintiff’s injury pre-existed the accident-in-question and otherwise call into question the Plaintiff’s credibility. With 6 R. Doc. 64 at 20 (Proposed Pre-Trial Order). R. Doc. 64 at 22 (Proposed Pre-Trial Order). 8 R. Doc. 64 at 33, 34 (Proposed Pre-Trial Order). 9 R. Doc. 64 at 20 (Proposed Pre-Trial Order). 10 R. Doc. 64 at 22 (Proposed Pre-Trial Order). 7 2 respect to witness testim ony, witnesses will not be perm itted to characterize any of Plaintiff’s actions or behavior as fraudulent, but witnesses will be perm itted to testify as to facts within their knowledge. IT IS SO ORD ERED . N e w Orle an s , Lo u is ian a, th is 16 th d ay o f May, 2 0 16 . ______________ _________________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE 3

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