In the United States Court of Federal Claims

No. 12-384L

(Filed: April 8, 2014)

RICHARD LEWIS KATZIN, et al.,

Plaintiff,

v.

UNITED STATES,

Defendant.

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Takings claim; proposed amendment of 

answer to add the defense of laches; 

timeliness; futility; assertion of 

extraordinary circumstances

Roberto E. Berríos Falcón, San Juan, Puerto Rico for plaintiffs. With him on the brief 

were Nancie G. Marzulla and Roger J. Marzulla, Marzulla Law, LLC, Washington, D.C.

Emily M. Meeker, Natural Resources Section, Environment and Natural Resources 

Division, United States Department of Justice, Washington, D.C., for defendant. With her on the 

briefs were Robert G. Dreher, Acting Assistant Attorney General, Environment and Natural 

Resources Division, and Lary Cook Larson, Attorney, Natural Resources Section, Environment 

and Natural Resources Division, United States Department of Justice, Washington, D.C.

OPINION AND ORDER

This takings case concerns a plot of land located in Culebra Island, Puerto Rico and turns 

in part on events that occurred more than 100 years ago. Pending before the court is defendant’s 

motion for leave to file its first amended answer (“Def.’s Mot.”), ECF No. 34, filed on February 

17, 2014. The government originally filed its answer to plaintiffs’ complaint on October 11, 

2012. Answer, ECF No. 10. Pursuant to Rule 15(a) of the Rules of the United States Court of 

Federal Claims (“RCFC”), the government seeks to amend its answer to include the affirmative 

defense of laches. Def.’s Mot. at 1. Plaintiffs (“the Katzin plaintiffs”) oppose the motion on 

grounds that the amendment would result in undue prejudice to the plaintiffs, fails to provide fair 

notice, and would be futile. Pls.’ Opp’n to Def.’s Mot. to Amend Answer (“Pls.’ Opp’n”) at 1-3, 

ECF No. 35. The case is currently in discovery. See Am. Scheduling Order (Feb. 3, 2014), ECF 

No. 33. This motion has been fully briefed and is ready for disposition.

BACKGROUND

This property dispute is over a 2.25 acre plot of land located on a peninsula in the La Pelá

Bay area of Culebra Island, Puerto Rico. Pls.’ Opp’n at 3 & Ex. B; Def.’s Reply in Support of its 

Mot. for Leave to File Am. Answer (“Def.’s Reply”) Exs. 3 at US-KATZ-009943 (map) & 8

(map), ECF Nos. 37-1 & 37-2. The Katzin plaintiffs allege ownership over the plot of land and 
argue that communications in 2006 by a government employee to the contrary resulted in 

projected purchasers of the land rescinding a contract to buy the land. Pls.’ Opp’n at 3. The 

government argues that the United States Navy purchased the plot in question as a gun mount in 

1903 and that the United States has continually claimed ownership of the area since that time. 

Def.’s Reply at 2.1 Plaintiffs filed their complaint on June 15, 2012 and an amended complaint 

on September 24, 2012, seeking compensation for the taking of the property and the rescinded 

contract. Pls.’ Opp’n at 3. In its answer filed on October 11, 2012, the government put forward 

an affirmative defense of statute of limitations. Def.’s Reply at 2. On December 4, 2012, the 

court issued a scheduling order setting deadlines for discovery. Scheduling Order, Dec. 4, 2012, 

ECF No. 13. This scheduling order has been amended a number of times, most recently on 

February 3, 2014. Am. Scheduling Order, Feb. 3, 2014, ECF No. 33. Under that amended order, 

fact discovery closed on March 28, 2014, expert disclosures and exchange of expert reports are 

due on April 25, 2014, expert discovery is scheduled to close on May 23, 2014, and any motions 

for summary judgment are to be submitted by June 30, 2014. Id.

ANALYSIS

RCFC 15 provides that “a party may amend its pleading [more than 21 days after service 

of the pleading or more than 21 days after a responsive pleading or certain motions are filed] 

only with the opposing party’s written consent or the court’s leave. The court should freely give 

leave when justice so requires.” RCFC 15(a)(2). The text of RCFC 15(a) mirrors, in all 

pertinent respects, that found in Fed. R. Civ. P. 15(a), and consequently application of Fed. R. 

Civ. P. 15(a) is highly persuasive in this court. See AEY, Inc. v. United States, 114 Fed. Cl. 619, 

625 (2014) (citing Mitsui Foods, Inc. v. United States, 867 F.2d 1401, 1403-04 (Fed Cir. 1989)). 

While the trial court has discretion in granting or denying leave to amend, particular reasons 

“such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to 

cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by 

virtue of allowance of the amendment, futility of amendment, etc.,” counsel against granting 

leave to amend. Foman v. Davis, 371 U.S. 178, 182 (1962). 

1

The government also seeks to amend Paragraph 55 of its original answer, which bears on 

the events underlying the government’s claim to the property. Def.’s Mot. at 5. Originally in 

that paragraph, the government stated: 

Defendant admits that the document referred to in [P]aragraph 55 was a 

conditional promise of purchase and sale between Mr. Mulero and the United 

States Navy, executed on July 29, 1903. Defendant further admits that it has not 

produced a formal deed of sale related to this property, or yet identified such a 

document in the Registry of Property of Puerto Rico, Fajardo Section. Defendant 

denies the remainder of the allegations in [P]aragraph 55.

Answer ¶ 55. The government wishes to amend this statement to state: “Defendant lacks 

sufficient knowledge to form a belief as to the allegations in the first sentence of [P]aragraph 55 

and, therefore, denies these allegations. Defendant denies the allegations in the second sentence 

of [P]aragraph 55.” Def.’s Mot. Ex. 1 ¶ 55. The Katzin plaintiffs had been notified of this 

proposed amendment in May 2013, id. at 5, and did not oppose this change in their response to 

the government’s motion.

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The affirmative defense of laches is an equitable defense that applies when “a party 

through neglect or delay fails to diligently pursue a claim.” Lankster v. United States, 87 Fed. 

Cl. 747, 755 (2009) (internal citations omitted). The laches defense requires proof that “(1) the 

plaintiff delayed filing suit for an unreasonable and inexcusable length of time from the time the 

plaintiff knew or reasonably should have known of its claim against the defendant, and (2) that 

the delay . . . operated to the prejudice or injury of the defendant.” Id. (internal quotation marks 

and citations omitted). The government argues that laches is potentially applicable in this case 

because plaintiffs knew or should have known of the government’s claim of title to the land as 

far back as the 1980s and plaintiffs’ failure to bring a claim earlier has prejudiced the 

government because witnesses have died and memories have faded. Def.’s Reply at 4.

The Katzin plaintiffs argue that leave to amend should be denied for a number of reasons. 

First, they claim that the amendment is untimely because all the facts for a potential laches 

defense were available to the government at the time it filed its answer, Pls.’ Opp’n at 6-10, and 

allowing the amendment now would result in undue prejudice against them because it would 

require additional discovery just as the period for conducting discovery is closing, id. at 10-12. 

The government asserts there was no undue delay because the relevant facts were not available 

to it when it filed its answer. Def.’s Reply at 6. In prior cases, undue delay was found when a 

party had waited several years before seeking an amendment. See, e.g., Cencast Servs., L.P. v. 

United States, 729 F.3d 1352, 1364 (Fed. Cir. 2013) (upholding trial court’s decision to deny 

leave to amend after 15 years had passed); Bank of Am. v. United States, 217 Ct. Cl. 731, 732

(1978) (per curiam) (approving denial of leave to amend an answer to assert an offset where six 

years had passed since the complaint was filed); Rockwell Automation, Inc. v. United States, 70 

Fed. Cl. 114, 121-24 (2006) (finding undue delay where government waited eight years after 

discovery had been reopened and then closed to seek amendment of its answer). Any delay in 

this case does not rise to that level. The case itself is less than two years old, and basic discovery 

is still underway, although fact discovery has closed within the past few days.

The government also argues that plaintiffs can show no prejudice because they had the 

opportunity to conduct additional fact discovery between the time this motion was filed and the 

scheduled close of fact discovery on March 28, 2014. Def.’s Reply at 7. Courts generally do not 

find the burden of conducting additional discovery sufficient to deny leave to amend a pleading. 

See, e.g., Cooke v. United States, 79 Fed. Cl. 741, 743 (2007) (“Plaintiff’s need to conduct 

additional discovery is reasonable and regrettable[] but is not sufficient justification to cut off 

[d]efendant’s right to assert its affirmative defenses.”). Here, sufficient time still is available for 

plaintiffs to address a new defense before motions for summary judgment are due, even if fact 

discovery has to be reopened. 

The Katzin plaintiffs additionally object that the proposed amendment fails to provide 

adequate notice as required by RCFC 8(c). Pls.’ Opp’n at 12-14.2

 They argue that the 

government provides only a “bare assertion” that their claim is barred by laches without 

2

RCFC 8(c) is written in conformity with Fed. R. Civ. P. 8. Rules Committee Notes to 

RCFC 8, 2008 Revision. Both rules require that “in responding to a pleading, a party must 

affirmatively state any avoidance or affirmative defense, including . . . laches.” See RCFC 

8(c)(1); Fed. R. Civ. P. 8(c)(1).

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sufficient factual support. Pls.’ Opp’n at 14.3

 While “bare bones conclusory allegations” are 

insufficient under Rule 8, generally pleaded defenses are sufficient “as long as the pleading gives 

the plaintiff fair notice of the nature of the defense.” Codest Eng’g v. Hyatt Int’l Corp., 954 F. 

Supp. 1224, 1228 (N.D. Ill. 1996). The amendment proposed here, coupled with recitations in 

the government’s motion, provides sufficient notice to the Katzin plaintiffs of the nature of the 

government’s affirmative defense. In addition, as the government points out, fair notice is not a 

factor generally considered by courts when determining whether to grant or deny leave to amend 

a pleading. Def.’s Reply at 9; see also First Fed. Sav. Bank of Hegewisch v. United States, 52 

Fed. Cl. 774, 789 (2002) (discussing RCFC 8 in connection with a plaintiff’s motion to strike the 

government’s affirmative defenses). 

The Katzin plaintiffs further argue that it is futile for the government to raise laches when 

the complaint was filed within the period allowed by the statute of limitations. Pls.’ Opp’n at 15. 

As they point out, “[b]ecause laches is an equitable doctrine, in actions at law for which ‘a 

limitation on the period for bringing suit has been set by statute, laches will not generally be 

invo[k]ed to shorten the statutory period.’” Pls.’ Opp’n at 15 (quoting Lankster, 87 Fed. Cl. at

755 (2009) (in turn quoting Advanced Cardiovascular Sys., Inc. v. SciMed Life Sys., Inc., 988 

F.2d 1157, 1161 (Fed. Cir. 1993))); see also Hernandez, Kroone & Assocs., Inc. v. United States, 

95 Fed. Cl. 395, 399-400 (2010) (granting the government’s motion to strike the plaintiff 

counter-defendant’s defense of laches on the basis that the claims were raised within the statute 

of limitations). Nonetheless, a showing of extraordinary circumstances can provide sufficient 

justification to allow a laches defense within the statutory period. See Six v. United States, 71 

Fed. Cl. 671, 681 (2006) (“Absent ‘extraordinary circumstances,’ . . . the court generally refuses 

to invoke the doctrine of laches to dismiss claims whose limitation period has been set by statute 

and has not run.” (citing Advanced Cardiovascular Sys., 988 F.2d at 1161)). The government 

counters by noting the extraordinary background of this case. Def.’s Reply at 9. The facts of 

this case are indeed unusual, and the chain of events preceding the claim may well deserve 

detailed examination. The court accordingly will not foreclose the possibility that the 

government might be able to show extraordinary circumstances justifying application of laches.

Finally, the Katzin plaintiffs contend that the proposed amendment is futile because their

takings claim depends on interpretations of land records more than a century old, some of which 

are in Spanish, rather than witness testimony. Pls.’ Opp’n at 15-18.4 The government responds 

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Part of the Katzin plaintiffs’ argument is based upon a federal district judge’s suggestion 

that district courts have been moving toward requiring that affirmative defenses pled under Rule 

8 must satisfy the pleading standards for complaints set forth in Bell Atlantic Corp. v. Twombly, 

550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). See Pls.’ Opp’n at 13-14

(citing Amy St. Eve & Michael A. Zuckerman, The Forgotten Pleading, 7 Fed. Cts. L. Rev. 152, 

166 (2013)). Plaintiffs fail to demonstrate why this higher standard has not been met in this 

instance.

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Apparently, “the last survey . . . performed on [the] property on behalf of the 

[g]overnment [before the dispute arose] was done under the Spanish Crown in the Nineteenth 

Century.” Pls.’ Opp’n Ex. B at US-KATZ-000739 (Letter from Edward M. Borges, counsel, to 

James Pulliam, Regional Director, Fish and Wildlife Service (Mar. 6, 1987)). A surveyor 

employed by the Fish and Wildlife Service, Lynn Robinson, was reportedly researching title 

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that this argument is irrelevant because even if the resolution of the claims is determined by land 

records, witness testimony is relevant to defenses of laches or the statute of limitations. Def.’s 

Reply at 9. In determining futility of an amendment, “courts do not engage in an extensive 

analysis of the merits of the proposed amendment[]” but instead “decide whether a party’s 

proposed amendment is facially meritless and frivolous.” St. Paul Fire & Marine Ins. Co. v. 

United States, 31 Fed. Cl. 151, 155 (1994). Because of the tangled claims of ownership and 

changes since 1994 in and with a nearby refuge managed by the United States Fish and Wildlife 

Service, see Def.’s Reply Exs. 4, 5, 6, defendant’s proffered amended defense is not facially 

meritless.

CONCLUSION

For the reasons state above, the government’s motion for leave to amend its answer is 

GRANTED.

It is so ORDERED.

s/ Charles F. Lettow

Charles F. Lettow

Judge

documents when he died in 2010. Pls.’ Opp’n at 8 & Ex. A (e-mail from Jackie Compton, Fish 

and Wildlife Service, to Pete Jerome, et al. (Nov. 7, 2011), attaching an e-mail from Lynn 

Robinson to Compton (Dec. 9, 2008)).

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