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RANEY v. DISTRICT OF COLUMBIA

July 5, 1995

THOMAS F. RANEY, JR., Plaintiff,
v.
DISTRICT OF COLUMBIA, et al., Defendants.



The opinion of the court was delivered by: PATRICK J. ATTRIDGE

 Pursuant to 28 U.S.C. § 636(c), the parties have consented to proceed before a magistrate judge. Presently under consideration are the defendants' motions to file an amended answer [40] and for summary judgment [45]. For the reasons set forth below, the Court denies the motion to file an amended answer and grants in part and denies in part the motion for summary judgment.

 I. Background

 Three business days before trial, and 15 months after being served with the complaint, the defendants moved to file an amended answer in order to interpose "newly raised" statute of limitations defenses. That same day the defendants also moved for summary judgment. In response, the plaintiff moved to continue the trial in order to respond in writing to the summary judgment motion. The defendants consented to the motion to continue.

 II. Motion to Amend the Answer

 Federal Rule of Civil Procedure 16(e) provides that the pretrial order of the court is to control the subsequent course of action of the case unless modified by later order and a modification shall take place only to prevent manifest injustice. Thus, until the filing of the defendants' recent motion to amend its answer to assert the statute of limitations, it appeared to all that the defendants had abandoned this affirmative defense.

 Having abandoned the defense, the issue now before the Court is whether the Pretrial Order should now be modified to permit the defendants to re-assert the defense. Rule 16(e) provides that "the order following a final pretrial conference shall be modified only to prevent manifest injustice." Although trial courts have broad discretion in determining whether to modify the pretrial order, Washington Hosp. Ctr. v. Cheeks, 129 U.S. App. D.C. 339, 394 F.2d 964, 965-66 (D.C. Cir. 1968), the words "to prevent manifest injustice" indicate an intent to restrain the court from so doing. Advisory Committee Notes.

 The Court finds that it would substantially prejudice Raney to allow the statute of limitations defense to be revived at this late stage in the proceedings. The defendants received formal notice of Raney's civil claim January 31, 1994 and filed a motion to partially dismiss on March 14, 1994. Nowhere in that dispositive motion, or in an other document filed with the Court up until May 19, 1995, the date this present motion was filed, did the defendants ever argue the statute of limitations defense. Such a last-minute assertion of the defense indicates that its earlier mention as an affirmative defense was mere boilerplate language in a pro forma answer in the original answer.

 Subsequent to the filing of the defendants' first dispositive motion in March 1994, Raney has incurred substantial legal costs in conducting discovery, attending hearings and conferences, and preparing for trial. Such expenditures of time and money constitute the type of prejudice the Federal Rules seek to prevent. See, e.g., McGraw v. Matthaei, 388 F. Supp. 84, 88 (E.D. Mich. 1972) (denying motion to amend pleadings to interpose statute of limitations defense because, inter alia, non-movant had incurred substantial expenses in course of proceedings.); see also Perlmutter v. Shatzer, 102 F.R.D. 245, 248 (D. Mass. 1984) (motion to amend answer made five years after original answer was unduly prejudicial because of time delay.). Thus, the Court concludes that the defendants have waived the affirmative statute of limitations defense and the Court will not in this stage modify the Pretrial Order to allow its assertion. A contrary ruling would work manifest injustice because of the time, money and other resources already expended. *fn1"

 III. Motion for Summary Judgment

 In their motion for summary judgment, the defendants advance a number of arguments. In addition to the statute of limitations defense, the defendants contend that: 1) the plaintiff fails to state a sexual harassment cause of action under Title VII of the Civil Rights Act of 1964 because harassment by supervisors of the same sex is not prohibited by that law; and 2) the plaintiff is not entitled to damages on his Title VII claims because all such alleged conduct is acknowledged to have occurred before 1989. Mem. P. & A. at 4. Furthermore, the defendants assert that: 1) Raney has abandoned his claims under 42 U.S.C. §§ 1981 and 1983; 2) as a District of Columbia government employee, the plaintiff cannot assert a claim under the District of Columbia Human Rights Act ("HRA"); and 3) the official capacity claims against the Director Merrich T. Malone should be dismissed because he is a redundant defendant. Id. at 4-5.

 A. Same-sex Harassment

 Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual's ... sex." 42 U.S.C. § 2000e-2(a)(1). Sex discrimination under Title VII includes sexual harassment, which takes two basic forms: 1) quid pro quo harassment whereby a supervisor demands sexual consideration in return for job benefits; and 2) hostile-environment harassment. Rabidue v. Osceola ...


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