UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION

DANIEL KOCH, et al., )

)

Plaintiffs, )

)

v. ) Cause No. 1:14-CV-72-HAB

) 

JERRY W. BAILEY TRUCKING, INC., ) 

THE ESTATE OF JERRY W. BAILEY, ) 

and LINDA BAILEY, )

)

Defendants. )

OPINION AND ORDER

It is said that only two things would survive a nuclear Armageddon: cockroaches and 

Twinkies. Threatening to add itself to that list is this case. Some six years after suit was filed, 

Defendants have asserted that the provisions of the Motor Carrier Act (“MCA”) exempt them from 

federal overtime obligations to their employees, barring Plaintiffs’ claims for unpaid overtime 

compensation under the Fair Labor Standards Act (“FLSA”). Plaintiffs cry foul and have moved 

to strike the MCA defense as an untimely affirmative defense. This Court finds that Defendants 

have failed to advance any reason for the belated assertion of the MCA defense and that Plaintiffs 

would be prejudiced if it were injected into the case at this late hour. As such, the defense will be 

stricken.

A. Procedural Background

As with any case that has been pending for more than six years, this case has an extensive 

procedural history. Thankfully, most of that history is irrelevant to the matter before the Court. As 

such, the Cliff’s Notes version will suffice.

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Plaintiffs filed, as a matter of right, their Amended Complaint for Damages on March 17, 

2014. (ECF No. 8). Plaintiffs alleged, generally, a collective action under the FLSA and a class 

action under Indiana law for Defendants’ alleged failure to pay overtime compensation to truck 

drivers employed by Defendant Jerry W. Bailey Trucking, Inc. (“JBT”). Defendants timely 

answered on May 9, 2014, asserting eleven affirmative defenses. (ECF No. 22). None of those 

affirmative defenses asserted, or alluded to, exemption from overtime under the MCA.

Following decertification of the class and collective actions, Plaintiffs filed their Second 

Amended Complaint for Damages on December 12, 2019. (ECF No. 199). Plaintiffs continued to 

assert claims under the FLSA and Indiana law, but now made those claims individually rather than 

as a class. Defendants once again timely answered (ECF No. 203), and once again asserted eleven 

affirmative defenses. As before, the MCA was not included in any of the affirmative defenses.

According to Defendants, they recently discovered that many of the Plaintiffs had traveled 

to Michigan and/or Ohio during their employment with JBT. This discovery was made during 

March depositions of several Plaintiffs. As a result, Defendants included an argument in their 

motion for summary judgment (ECF No. 204) asserting exemption from federally-required 

overtime compensation under the MCA.

Two weeks after Defendants’ dispositive motion1 was filed, Plaintiffs filed the instant

motion to strike. (ECF No. 207). Plaintiffs argue that they had no notice of the MCA defense prior 

to the motion for summary judgment, and therefore conducted no discovery relevant to the defense. 

Plaintiffs further argue that, had the defense been timely raised, they would have asserted a “Rule 

23 Class Action for breach of contract as an alternative claim.” (Id. at 2).

1 The Court has stayed all proceedings on Defendants’ motion for summary judgment pending this ruling. (ECF No. 

209).

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B. Legal Discussion

Federal Rule of Civil Procedure 8(c) requires a defendant to plead all affirmative defenses 

in his answer to the complaint. The purpose of that rule, as courts have long recognized, is to avoid 

surprise and undue prejudice to the plaintiff by providing her notice and the opportunity to 

demonstrate why the defense should not prevail. Blonder–Tongue Labs., Inc. v. Univ. of Ill. 

Found., 402 U.S. 313, 350 (1971); Bank Leumi Le–Israel, B.M. v. Lee, 928 F.2d 232, 235 (7th Cir. 

1991); see also, e.g., Williams v. Ashland Eng’g Co., 45 F.3d 588, 593 (1st Cir. 1995); Ball Corp.

v. Xidex Corp., 967 F.2d 1440, 1443–44 (10th Cir. 1992); Grant v. Preferred Research, Inc., 885 

F.2d 795, 797 (11th Cir. 1989); Perez v. United States, 830 F.2d 54, 57 (5th Cir. 1987). As with 

other pleadings, this Court has the discretion to allow an answer to be amended to assert an 

affirmative defense not raised at the outset. Fed. R. Civ. P. 15(a); see 5 Charles Alan Wright & 

Arthur R. Miller, Federal Practice & Procedure § 1278 at 494–95 (2d ed. 1990). A defense may 

only become apparent after discovery, for example, in which case it would be reasonable for the 

court to permit the belated assertion of that defense. Nonetheless, the defendant remains obligated 

to act in timely fashion. See Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987) (statute of limitations 

defense must be raised “at the earliest possible moment”) (internal quotation marks and citations 

omitted); Home Depot, Inc. v. Guste, 773 F.2d 616, 621 n. 4 (5th Cir. 1985).

Once the availability of an affirmative defense is reasonably apparent, the defendant must 

alert the parties and the court to his intent to pursue that defense. “A defendant should not be 

permitted to ‘lie behind a log’ and ambush a plaintiff with an unexpected defense.” Perez, 830 

F.2d at 57 (quoting Ingraham v. United States, 808 F.2d 1075, 1079 (5th Cir. 1987)); see also 

Bettes v. Stonewall Ins. Co., 480 F.2d 92, 94 (5th Cir. 1973). The appropriate thing for the 

defendant to do, of course, is to promptly seek the court’s leave to amend his answer. See DeValk

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Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir. 1987). The failure to do so 

risks a finding that the defense has been waived. See Metro. Housing Dev. Corp. v. Vill. of 

Arlington Heights, 558 F.2d 1283, 1287 (7th Cir. 1977); see also Johnson v. Sullivan, 922 F.2d

346, 355 (7th Cir. 1990); Carroll v. Acme–Cleveland Corp., 955 F.2d 1107, 1115 (7th Cir. 1992); 

Pinto Trucking Serv., Inc. v. Motor Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981); Stanish v. 

Polish Roman Catholic Union of America, 484 F.2d 713, 721 (7th Cir. 1973); Roe v. Sears, 

Roebuck & Co., 132 F.2d 829, 832 (7th Cir.1943).

Defendants seemingly understand that the MCA defense was not timely raised.2 Instead of

arguing that the defense was timely, Defendants point the Court to several cases where an 

affirmative defense was permitted well-beyond the pleading stage. Defendants urge the Court to 

look not at the delay, but instead Plaintiffs’ “opportunity to respond” to the MCA defense. (ECF 

No. 210 at 2–3).

Defendants are correct in concentrating on prejudice, but this concentration offers them 

little solace. Affirmative defenses have been permitted late in the life of a case, but only where the 

issue has been raised through other means. See, e.g., Blaney v. United States, 34 F.3d 509, 512 

(7th Cir. 1994) (defense raised in motion to dismiss); Barron v. Lee Enters., Inc., 183 F. Supp. 2d 

1077, 1081 (C.D. Ill. 2002) (“the issue of the Motor Carrier Act was raised during the depositions 

of Plaintiffs’ expert witnesses and in the supplemental disclosures of Defendants’ expert 

witnesses”); Fugate v. Dolgencorp, LLC, 2012 WL 5268494, at *4 (N.D. Ind. Oct. 23, 2012) 

(statute of limitations defense raised in response to previous complaint and discussed in discovery

2 The Court agrees with Plaintiffs’ statement that “Defendants did not have to discover that they allegedly sent truck 

drivers to Ohio and Michigan.” (ECF No. 207 at 2). While counsel may not have discovered the interstate trips until 

the March 2020 depositions, JBT, as the party that assigned the trips, was certainly aware of them at the time suit was 

filed.

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response). In each of these cases, the plaintiff was hard-pressed to argue that they were prejudiced 

by the filing of a defense that was well known to them.

That is not the case here. Defendants do not argue, nor do they point to evidence 

demonstrating, that they raised the MCA defense prior to their motion for summary judgment. 

Rather, Defendants sat on this issue for more than six years, raising it only via dispositive motion. 

During those six years, Plaintiffs had no reason to, and did not, conduct discovery into the MCA 

defense. They had no reason to, and did not, plead around the MCA defense. Instead, Plaintiffs 

have been given no more than the time allotted under Local Rule 56-1(b)(1) to investigate and 

form a response to the MCA defense. That is not what Rule 8(c) contemplates.

In contrast to Plaintiffs, there appears to be little prejudice to Defendants in striking the 

MCA defense. Defendantsrecognize that the MCA defense applies only to Plaintiffs’ FLSA claims 

and not their Indiana state law wage payment claims. (ECF No. 210 at 2). Assuming the same

unpaid overtime hours would be used to calculate damages in the event of a findingfor Plaintiffs, 

dismissal of the FLSA claims would do little to mitigate Defendants’ liability. A successful

plaintiff under the FLSA claim is entitled to unpaid wages, an equal amount in liquidated damages, 

and attorneys fees. 29 U.S.C. § 216(b). A successful plaintiff under Indiana’s wage payment laws

can recover unpaid wages, liquidated damages “in an amount equal to two (2) times the amount of

wages due,” and attorneys fees. Ind. Code § 22-2-5-2. Even if the MCA defense were successful,

then, Defendants would still face statutory damages that exceeded those available under the FLSA.

The MCA defense may have merit. Moreover, one could argue that Plaintiffs should have 

anticipated the defense, since they were also aware of the routes they drove. But “if Rule 8(c) is

not to become a nullity, we must not countenance attempts to invoke such defenses at the eleventh 

hour, without excuse and without adequate notice to the plaintiff.” Venters v. City of Delphi, 123

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F.3d 956, 969 (7th Cir. 1997). The only way to preserve the goals of Rule 8(c) in this case is to 

strike the MCA defense.

C. Conclusion

For the foregoing reasons, Defendants’ Motion to Strike Motor Carrier Exemption 

Argument (ECF No. 207) is GRANTED. The argument presented in Section II.B. of Defendants’ 

Memorandum in Support of Defendants’ Motion for Summary Judgment (ECF No. 206 at 6–9) is 

hereby STRICKEN. Plaintiffs shall have twenty-one days from the date of this Opinion and 

Order to file its response to the remaining summary judgment arguments. Defendants shall have

fourteen days from the filing of Plaintiffs’ response to file any reply.

SO ORDERED on May 27, 2020.

s/ Holly A. Brady

JUDGE HOLLY A. BRADY

UNITED STATES DISTRICT COURT

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