The opinion of the court was delivered by: Herndon, Chief Judge:
Currently there are five pending motions before the Court: 1) plaintiff's motion for leave to file motion for judgment on the pleadings as to count III (Doc. 67); 2) plaintiff's motions in limine (Doc. 68); 3) defendant's second motion to amend/correct answer (doc. 70); 4) plaintiff's motion to strike second motion to amend/correct answer (doc. 71); and 5) plaintiff's motion for leave to file/submit final pretrial order unilaterally (doc. 72). The last motion (Doc. 72) is denied as moot as the Court has already instructed the parties to file a new final pretrial order following its rulings on these other motions. For the reasons that follow, plaintiff's motion for leave to file motion for judgment on the pleadings as to count III (Doc. 67) is denied, plaintiff's motions in limine (Doc. 68) are granted in part and denied in part, defendant's second motion to amend/correct answer (Doc. 70) is granted in part and denied in part, and plaintiff's motion to strike second motion to amend/correct answer (Doc. 71) is denied.
This suit was filed on February 18, 2010 (Doc. 2). Defendant filed its answer on April 29, 2010 (Doc. 6), and an amended answer on May 17, 2010 (Doc. 13), but failed to raise any affirmative defenses. Nevertheless, on January 20, 2011, defendant filed a motion for summary judgment (Doc. 31) as to all claims, arguing that summary judgment should be entered in its favor because the pay differential between plaintiff and McGivern existed for legitimate reasons and not as a pretext for wrongful discrimination, and because the seniority of McGivern over plaintiff establishes as a matter of law a non-invidious reason for the failure of defendant to offer plaintiff a position for the 2009-2010 school year.
On August 30, 2011, the Court entered an order denying defendant's motion for summary judgment (Doc. 49). The next day, the Court set the matter for a final pretrial conference on November 22, 2011. Plaintiff moved to continue the final pretrial conference (Doc. 51), and the Court granted that request, setting it for January 5, 2012. Thereafter, defendant moved to continue the final pretrial conference (doc. 53), which the Court granted, continuing the matter until February 16, 2012.
On December 22, 2011, over three and a half months from the time the Court denied defendant's motion for summary judgment, defendant filed a motion for leave to file a second amended answer (Doc. 57). Plaintiff opposed the motion (Doc. 59), and on January 3, 2012, Magistrate Judge Williams issued an order denying defendant's motion for leave to amend, finding that defendant failed to provide any reason for the need to amend and that an amendment to add affirmative defenses at this late stage of the litigation would be prejudicial to plaintiff. Defendant did not appeal Magistrate Judge William's decision. Rather, the parties informed Magistrate Judge Williams that they believed a settlement conference may be productive and one was held on February 16, 2012. Settlement, however, was not reached. Therefore, the Court scheduled the matter for a final pretrial conference on April 19, 2012.
On March 22, 2012, plaintiff filed a motion for leave to file a motion for judgment on the pleadings as to count III (Doc. 67). Plaintiff asks the Court to enter judgment on the pleadings on plaintiff's equal pay complaint because defendant failed to file any affirmative defenses and the recent Seventh Circuit case, King v. Acosta Sales & Marketing, Inc., No. 11-3617, 2012 U.S. App. LEXIS 5156, 2012 WL 807199 (7th Cir. March 13, 2012), allegedly held that "[a]n employer [in an Equal Pay case] asserting that the difference [in pay] is the result of a 'factor other than sex' must present this contention as an affirmative defense . . . ."
On March 28, 2012, plaintiff filed motions in limine (Doc. 68). On April 5, 2012, defendant filed a response to plaintiff's motion for leave (Doc. 69) and a second motion for leave to file a second amended answer (Doc. 70). In it, defendant contends that King "is not applicable to the facts and circumstances herein as it involves the reversal on appeal of a grant a [sic] of summary judgment motion in favor of the employer. The case does not involve or discuss the circumstances under which a Motion to Amend pursuant to Rule 15 should be granted or denied."
In defendant's motion for leave to file a second amended answer, defendant contends that Magistrate Judge Williams order denying defendant's motion to amend its first amended answer (Doc. 60) was clearly erroneous or contrary to law. Plaintiff has filed a motion to strike defendant's second motion for leave to file a second amended answer as untimely (Doc. 71). Plaintiff argues that while captioned as a motion for leave to file, defendant's motion is actually an appeal of Magistrate Judge Williams' order of January 3, 2012, which is untimely.
The second motion for leave was filed approximately three months following Magistrate Judge William's order denying defendant's motion for leave to amend. In that motion, defendant seeks leave to add twenty-nine paragraphs of defenses, ranging from mitigation, to timeliness, to a multitude of other reasons for why plaintiff was fired and not paid as much as her male counterpart. Plaintiff has filed a motion to strike defendant's second motion for leave to file a second amended answer as untimely (Doc. 71), and motions in limine that seeks to preclude evidence of many of the issues raised in defendant's proposed amended answer.
Magistrate Judge Williams' decision to deny defendant's motion for leave to amend defendant's answer is a non-dispositive matter that defendant could have appealed within fourteen days after issuance. SDIL-LR 73.1 ("Any party may appeal a Magistrate Judge's order determining a motion or matter within 14 days after issuance of the Magistrate Judge's order, unless a different time is prescribed by the Magistrate Judge or a District Judge."). For whatever reason, defendant did not appeal Magistrate Judge Williams' order, which the Court would have reviewed for clear error and whether his decision was contrary to law. See 28 U.S.C. § 636(b)(1)(A). Instead, defendant waited approximately three months and a few weeks before the final pretrial conference to file a second motion for leave to amend its answer. Had defense counsel not raised the issue, albeit three months' late, his failure to object to the magistrate's ruling would have waived the right to appeal that issue. United States v. Brown, 79 F.3d 1499, 1503 (7th Cir. 1996) ("It is well established in this circuit, as it is in most others, that failure to file objections with the district judge waives the right to appeal all issues, both factual and legal.") Nonetheless, the Court is still in the position to rule on defendant's motion. See Thomas v. Arn, 474 U.S. 140, 154 (1985) ("[W]hile the statute does not require the judge to review an issue de novo if no objections are filed, it does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other legal standard."); Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir. 1985) ("Case law has emphasized that under the Federal Magistrates Act the judge always retains authority to make final determinations. [Citations]. Since the judge retains final authority, he 'may freely reject the magistrate's recommendation,' [citation], and, even when no objection was made, he may make a de novo determination. [Citations]."); SDIL-LR 73.1 ("A District Judge may also reconsider sua sponte any matter determined by a Magistrate Judge under this rule."). In doing so, the Court must keep the ends of justice in mind. See United States v. Brown, 79 F.3d 1499, 1504-05 (7th Cir. 1996); see also Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994) (declining to extend the Seventh Circuit's "rule barring appeal when objections to the magistrate judge's recommendation [were] not filed with the district judge to a case in which the filing was not egregiously late and caused not even the slightest prejudice to the appellees.").
Generally, "[o]nce 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." Venters v. City of Delphi, 123 F.3d 956, 967 (7th Cir. 1997). "'A defendant should not be permitted to "lie behind a log" and ambush a plaintiff with an unexpected defense.'" Id. at 968 (citing Perez v. United States, 830 F.2d 54, 57 (5th Cir. 1987)). Failure to timely assert an affirmative defense may result in a finding by the Court that defendant waived the defense. Venters, 123 F.3d at 968. Nevertheless, "'[t]he failure to plead an affirmative defense in the answer works a forfeiture only if the plaintiff is harmed by the defendant's delay in asserting it." Matthews v. Wis. Energy Corp., Inc., 642 F.3d 565, 570 (7th Cir. 2011) (quoting Carter v. United States, 333 F.3d 791, 796 (7th Cir. 2003)). When the parties raise the issues before the Court, however, technical failure to plead is not fatal to the party's ability to raise the defense. Blaney v. United States, 34 F.3d 509, 512 (7th Cir. 1994) (citing Devalk Lincoln Mercury, Inc. v. Ford Motor Co., 811 F.2d 326, 334 (7th Cir. 1996)); see also Curtis v. Timberlake, 436 F.3d 709, 711 (7th Cir. 2005) (recognizing that the Seventh Circuit has held that a delay in asserting an affirmative defense waives the defense only if the plaintiff is harmed as a result).
Here, the Court's rulings center largely around whether or not the Court is going to allow defendant to amend its answer to raise some, or any, of the affirmative defenses defendant attempts to raise in its proposed second amended answer. In defendant's proposed second amended answer, defendant adds the following twenty-nine paragraphs of affirmative defenses:
1. Any amount which Plaintiff claims is due and owing for lost wages and other employment benefits must be mitigated and reduced by the amount of wages and benefits Plaintiff earned (including unemployment compensation benefits), or through the exercise of reasonable diligence could have earned, during the period for which lost wages and benefits are sought by Plaintiff. Plaintiff further must mitigate all damages and to the extent Plaintiff has failed to do so, Plaintiffs [sic] damage claims must be reduced.
2. Pursuant to the laws of the State of Illinois, Plaintiff was an at-will employee of Defendant subject to termination at any time for any reason or no reason at all.
3. Defendant exercised appropriate business judgment In [sic] making any and all employment ...