good morning ladies and gentlemen our st case for this morning will be burton against  this question is particularly important here because here the district court permitted the defendants to raise an affirmative defense for the st time five plus years into the wood occasions because of the simple fact that mr burton filed an amended so explain i mean i'm sure you're prepared to do this explain for us why this is a material a different from what happened in the massey case because there u plane if a prison doctor who had been fired from the right people but why did that have anything to do with the exhaustion defense that was later raised the doctor had his own issues about whether he could go forward in this case that was he pertin action a new defense or a new plaintiff and so what the court ruled was that it was proper for the defendant to be able to rape to reopen that the defenses to the complain change their theory of the case while simultaneously walk in the defendants in their original pleading so massy does not hold that when ever the procedural fact that a plaintiff filed an amended complain that suddenly all defenses are back on the table that's inconsistent with the holding of massey and i should add that it is in direct conflict with other circuits in other district courts  that a district judge could exercise discretion there to allow the amendment of the addition of the exhaustion defense or might have taken the approach that will this amend the addition of the doctor doesn't seem to affect exhaustion so much so maybe i would go the other way on that and deny that i understood the problem in this case to be that the district judge seem to think she had no discretion at all that even a correction of a typographical error complaint had been filed didn't even look at the a minute complaint and said that this line of dixon massey permits the defendants to raise any and all from their defenses even if they've been waiting for and so to your point  though what we the rule that we've advocated for here is it's to guide the judge's discretion so it's to it's to say i'm going to look at this complaint i'm going to look at the substance of the amendments and i'm say not necessarily the most central dispute in this case but there is this factual dispute the evidence that you submitted with your rule fifty nine motion and so on about what happened early on in the nd case they had a couple questions early on their question although i would say that you know on the merits this is why the the doctrines of waiver and forfeiture exist it is very difficult to go back five plus years and what judge gettleman meant and whether he would  have on a related note there i've been worrying about the question of prejudice for both sides in this case and i would have thought that if for a student cut it had been raised immediately  upon the filing of the nd case there still would have been time to go back to judge gentlemen and to rule sixty the house for a modified judgment right absolutely at this point way too late right yes you're on and that and that is on a forfeiture point we should add that's the reason that it's very difficult i find it a little bit ironic that here by my calculations the complaint had been filed thirty seven days late under judge governments order but  yet here we are five plus years later today seven plus years later trying to figure out whether or not i would have been more than happy to walk in in two thousand and twelve and i just got in this courtroom and say your honor i understand his pro bono counsel was late  filing this but can we proceed with this case and i should add that the defendants were not prejudiced there where is mr burton here is prejudice by the long delay in asserting this affirmative defense mr stone one thing that in exploring the background of the prior lawsuit as judge hamilton's raising one thing that i noted is when the nd case was filed and then rolled out to judge lefkow in the civil cover sheet that accompanied the  complaint you know i'm talking about the yes your i checked the box document yes your honor at the bottom of that document the boxes checked that this case is not a refiling of a previously dismissed action and then it's you know it's signed by the then counsel mr granard cerny doubt that's a false statement not to my knowledge your honor and that might explain why in the roll out of the case you didn't go back to judge gettleman might it not that it may run i'm not familiar with the procedural rules with regard to checking that box but well if the box would have been checked that it is a the form asks a list the case number and then you have to list the judge that previously dismissed the action that that may be true your honor on on the point of whether or not it went back to judge gettleman i would i would like to raise your honor that we we've also argued and supplied an affidavit on waiver your honor so our position is that the defendants were aware of this previously filed action that that represented to pass counsel that they were not going to raise this issue because they didn't want to be the defendants who walked in and said oh it was a little bit late which would prejudice the planet i don't know how clear all that is from the record might my only point is that it looks like when this was filed there was what seems to me you know an effort to kind of disguise or high the prior case from the district court and it just seems like that should be a fact it's thrown into the hopper on however this comes out critical of prisoners who filed these giant rambling complaints asserting all sorts of claims against one and all and in a sense this is that's what this was you know there were aspects of it that belonged in the central district aspects of it the belonged in the northern district and so it is conceivable to me that maybe it was thought of as as a new and focused case not the same old defective case that was there before and i'm going to actually raise this with your opponents to i think what we are partly seeing in this case which relates back to something judge hamilton has also said i unfortunate tendency of the district courts not to pay any attention to the federal rules of civil procedure rule eight c sets forth affirmative defenses affirmative defenses belong in an answer and rule seven describes what's a pleading and what's a motion a twelve the six thing is not a pleading it's a motion and if you if you put the affirmative defenses forward in a diff the proper form everybody is alerted to the fact that it's on the table the kind of orderly procedure that we've been talking about that didn't happen here one thinks might have happened and so th tell you no let's just do this and twelve these six just isn't what the rules call for anywhere absolutely are and we we did argue that we were prejudiced by the fact that the defendants found a rule twenty six motion and this defense for the st time in that motion that it happens with statutes of limitations occasionally it happens with preclusion it's not too common with the other eight c defenses and it's and it's fine when it's on the face of the complaint your hon on a claim preclusion it's different from issue preclusion issue preclusion at this point has a pretty well established non mutual dimension so that somebody who was not a party to the prior litigation can ra come up so i would turn then to tailor against urge ole which says it starts with the opening sentence of the opinion is a principle of general application anglo american jurisprudence that one is not bound by a judgement in  in a litigation in which he has not been made a party by service of process so in other words dr ghost never having been made a party by service of process in the st case could not be bound by anything this had been brought up properly as a rule eight c affirmative defense i think somebody would have had the opportunity to look into the elements of claim  infinitum making litigation ruly and cumbersome i don't think we've ever held against a party its failure to try to file reason for not that's not the rule you don't make you don't say it's obvious arguments for the reply brief and you know they did once for your opening brief in response to sew it in the district court order following the amount of complaint the district court granted defense leave to answer or otherwise plead at that point wealthy six is not a pleading honestly in the district another case we have to do this is the same problem the rules set forth the way you raise certain defenses and defenses roughly going confession in avoidance the affirmative defense need to be raised in an answer which you did not  e and then if you want to file an answer with your front of defenses you're entirely free and welcome to use rule twelve see you don't to go through the whole discovery process you can file a twelve c motion for judgment on the  point the district court will have the opportunity to see are there disputed issues of fact is there something that needs to be looked at they've proffered this affidavit from prior counsel maybe use judge scudder's raising there might have been other things that original pleading i think that let's that's the rationale not the broader way which earlier in the opinion i think that language and emphasizing that language mistakes the rod holding of massey going to create a conflict with other circuits correct there was a little trouble that your brief did not address the krentz going to rally decisions from the th and th circuits which seem to have taken quite a different approach to these the scope of the amendment amended complain and what it opens up for defendant to i understand your honor i would say and massey the as judge would pointed out the factual and procedural background is precisely the same as what happened here the  pointed to the critical difference which is that it was understood to be as as a lot of rule fifteen amendments are was understood to be within the discretion of the district court here if the that if an amended complaint let's say corrects the spelling of the defendant's name five years into the case that that opens everything up water magically i think that that would be a different question what's different you substitute you know the real identity of parties for john doe you know parties things like that happen all the time to clean up you know a pleading on the eve of a trial or something yes and i would say that  order wouldn't be to file an amended complaint give a party answer to leave or leave to go with my hypothetical and i can tell you about examples where it's happened in a case where there is a typo i think the holding of massey as it's written states that that would open the door let's suppose mr holt there is discretion on whether to relieve the defense of the of the waiver that clearly occurred here what reasons would you offer in the district court for the favorable exercise of discretion five years into the case in this case i would say based on the amended yes as as your honor pointed out  the complaint that was filed stated that there was this was not a refile there was no opportunity and this could go into a notice argument but doesn't the records show that there was at least a year or so that the defense complaint the handling attorney took a look at the initial complaint and just based on his experience thought it was curious that a prisoner ninety three case was the initial complaint was filed not pro se but by counsel for mayor brown at that point he took it upon himself to go look through pacer to see if you can find something so he knows his father slipped through pacer before there was no reason for him to leave case he had no there was nothing to clue him in to the to the need pacer it was through his experience where he noted he thought it was curious that mayor brown had filed the opening complaint i remember that part of this but when you say opening complaint you mean the one before judge gentleman in the two thousand and twelve got it all right so there was no notice of the his order was explicit he warned counsel if you need to file a motion to reinstate within ninety days there's an issue with sixty votes ninety but that's irrelevant because it took him one hundred and thirty six days to file but but here we have it's filed through counsel and then we have years going by years go by years go by and finally january th twenty eight teams counsel for burton makes a motion leave to file the amended complaint that's what triggers what we're here for but if you're going to rely on the fact that it just dawned on the defense that this was a counseled complaint that was brand new notice of that exists october th two thousand and twelve i would say in response to that one in setting rules moving forward the experience of counsel to know that a prisoner complaint typically is not filed by counsel for mayor brown the opening complaint basing that off the experience would be something that's beyond you know would require much more of the courts to determine sounds like an equitable argument in answer to judge hamilton's question about what would you be talking to the district court about if this case were understood different yes precisely to ask you about the issue of cases we would take for granted there's pretty between an employee and employer with respect to liability but how does that apply and is there guidance in the case law where responding answer period or a liabilit notice it's worth pointing out that the attorney the defense attorney who filed the rule twenty six dollars motion was not the attorney that had been on the case for years prior and so mr halliday was the one that had represent