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In Lacey v. Centurion Health of Indiana, LLC, 2025 WL 2734104 (S.D. Ind. Sept. 25, 2025), Senior Judge Sarah Evans Barker addressed an affirmative defense of failure to exhaust administrative remedies, striking the defendants’ answer with leave to replead.
She observed that the affirmative defense read, “Plaintiff may have failed to properly and adequately exhaust available administrative remedies prior to the filing of this lawsuit.” She set forth the pleading requirement, writing, “Defenses are pleadings which are ‘subject to all pleading requirements of the Federal Rules of Civil Procedure.’” Edwards v. Mack Trucks, 310 F.R.D. 382, 386 (N.D. Ill. 2015) (quoting Heller Fin. v. Midwhey Powder, 883 F.2d 1286, 1294 (7th Cir.1989)). This means an answer must set forth a short and plain statement of the defense that is ‘sufficient on the face of the pleadings’ and includes sufficient factual allegations showing that the defense is plausible. Id. The Court may strike insufficient defenses from a pleading under Federal Rule of Civil Procedure 12(f).”
She ruled that the “may have failed” language used in the defense was inadequate, explaining: “The defendants’ assertion of the exhaustion defense fails to satisfy even the most lenient notice-pleading standards. If the defendants’ assertion is literally true—that Mr. Lacey may have failed to exhaust administrative remedies—the defendants receive no relief. Rather, the defendants must demonstrate that Mr. Lacey actually failed to exhaust administrative remedies. The defendants’ formulation of the affirmative defense is the height of speculation, and a pleading that fails to raise a right to relief above a speculative level is insufficient.” Id. (emphasis in original).
Judge Barker concluded, “This order is necessary because the exhaustion defense is different on a practical level: Ordinarily, it must be resolved before this action can proceed to the merits. White v. Bukowski, 800 F.3d 392, 394 (7th Cir. 2015); Pavey v. Conley, 544 F.3d 739, 742 (7th Cir. 2008). Therefore, the clerk is directed to strike the defendants’ answer, dkt. [36]. The defendants will have through October 3, 2025, to file an amended answer that either omits the exhaustion defense or asserts it in a manner that satisfies the pleading standards set out above.”
The decision is a reminder of the requirements of Rule 11, specifically Rule 11(b)(3), which provides that by signing, filing, or later advocating a paper, the attorney certifies that to the best of their knowledge, information, and belief formed after an inquiry reasonable under the circumstances, “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”
Accordingly, when counsel are unable to meet the “have evidentiary support” standard and instead are asserting a contention that we believe will have evidentiary support after further investigation or discovery, counsel need to so specify.
This is magical language from the rule, and more precise than the commonly used “upon information and belief” jargon. The precise phraseology from Rule 11(b)(3) is that the assertion “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Thus, for example, an employer with a reasonable basis for doing so after an inquiry reasonable under the circumstances, could properly plead: “Subject to a reasonable opportunity for further investigation or discovery, Plaintiff failed to mitigate damages.”
Denial of case management extensions: In Davis v. Marion County Superior Court, No. 1:24-cv-01918 (Sep. 5, 2025), Magistrate Judge Mark Dinsmore denied defendants’ unopposed motion to extend the discovery and dispositive motion deadlines by 60 days. He wrote:
“First, discovery in this matter opened on January 2, 2025. [Dkts. 16, 19, & 20.] Defendants did not serve any discovery in this case until May 9, 2025—127 days after discovery opened and only 116 days before liability discovery was scheduled to close. [Dkts. 33, 40, 41, 45.] While there was certainly a delay in obtaining complete discovery responses from Plaintiff, the primary reason for Defendants’ current situation is Defendants’ unreasonable delay in serving their discovery in the first place.” Id. (emphasis in original).
Judge Dinsmore continued: “Plaintiff responded to Defendants’ discovery requests on June 9, 2025. [Dkt. 59 at 2.] The parties failed to timely submit their next discovery report, which was due July 7, 2025, and Defendants failed to raise their issues with Plaintiff’s responses with the Court until a status conference on July 9, 2025. The Court then scheduled and conducted a discovery conference, ordered briefing on Defendants’ motion to compel, and then ruled on that motion to compel, all within 28 days. That could have been accomplished sooner if Defendants had not waited a month to first bring their discovery dispute to the Court’s attention.”
He concluded: “This Court’s workload dictates that every effort must be made to ensure the speedy and efficient administration of justice. The Court must establish deadlines and counsel must meet those deadlines for the Court to have any ability to function. The instant situation is the result of counsel’s failure to adequately plan their discovery schedule so as to enable them to complete the work needed in the time allowed, as nothing was shown to suggest that the 243-day window for liability discovery was insufficient to allow Defendants to conduct the discovery they needed. As a result, good cause does not exist to support the enlargement requested, and Defendants’ motion, [Dkt. 69], accordingly is DENIED.”
Judge Dinsmore then, sua sponte and because “the current trial date will allow a shorter enlargement of the current deadlines, “extended discovery until October 10, and dispositive motions until November 3. He added, “No further enlargement of the case deadlines will be granted.” (emphasis in original).
Save the date: The Annual Federal Civil Practice seminar featuring Indiana federal judges is set for Dec. 12 in Indianapolis, live and virtual, from 1:30-4:45 p.m. Registration will be live Oct. 15 at josephmaley.org or email the undersigned to hold your seat.•
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John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing employment law, federal and state litigation, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as Chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana.
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