ORDER
I. Introduction
This matter came before the undersigned United States Magistrate Judge pursuant to a general assignment, made in accordance with the provisions of Title 28 U.S.C. § 636(b)(1)(A), upon the Defendant’s Motion for Leave to File a Second Amended Answer. See, Docket No. 24. On September 29, 2009, the Court granted Defendant’s Motion for Relief to file a Reply Brief, see Docket No. 42, and we conducted a Hearing on the Motion on October 15, 2009, at which time, the Plaintiff Equal Employment Opportunity Commission (“EEOC”) appeared by Laurie A. Vasichek, Esq., the Plaintiff-Intervenor James Edstrom (“Edstrom”) appeared by Benjamin R. Elwood, Esq, and the Defendant Hibbing Taconite Company (“Hibbing Taconite”) appeared by R. Thomas Torgerson, Esq. For reasons which follow, we deny Hibbing Taconite’s Motion.
II. Factual and Procedural Background
This action arises out of a Complaint, which was filed on March 31, 2009, by the EEOC. See, Docket No. 1. The Complaint was filed as an action under Title I of the Americans with Disabilities Act, Title 4% U.S.C. § 12112 (“ADA”), and claims that Edstrom is substantially limited in the major life activities of hearing and speaking. See, Amended Answer, Docket No. 6, at ¶ 7. The EEOC alleges that Hibbing Taconite discriminated against Edstrom by initially failing to interview him for an employment position, on account of his disabilities, by failing to provide him with effective reasonable accommodations during the application process, and by rejecting him, because of his disabilities, for positions as to which he was qualified. See, Complaint, Docket No. 1. The EEOC requests a permanent injunction, a directive that Hibbing Taconite institute and carry out policies, practices, and programs, for equal employment opportunities, so as to eradicate the effects of any past or present unlawful employment practices, together with an award of backpay, and “other affirmative relief.” Id.
Hibbing Taconite filed an Answer to the EEOC’s Complaint on June 1, 2009, in which it asserted the following seven (7) affirmative defenses: the failure to state a claim; an unsupported request for relief; a “direct threat” defense; a “legitimate, nondiscriminatory, business reasons” defense; a use of tests which are work-related and consistent with business necessity defense; and a reservation to plead additional affirmative defenses. See, Docket No. 4■ On June 10, 2009, Hibbing Taconite filed an Amended Answer in which it alleged the additional affirmative defense of laches. See, Docket No. 6. Thereafter, on July 31, 2009, the EEOC produced its initial discovery disclosures to Hibbing Taconite. See, Memorandum in Support of Motion (“Hibbing Taconite Memo”), Docket No. 25 at p. 2.
According to Hibbing Taconite, in examining those disclosures it determined that four (4) new affirmative defenses were now justified. Id. On September 1, 2009, Hibbing Taconite filed a Motion for Leave to File its
In May of 2007, Edstrom amended his initial charge in order to assert further allegations. See, Memorandum in Opposition to Motion (“EEOC Memo”), Docket No. 33, at p. 3. Upon receiving that Amended Charge, Hibbing Taeonite informed the EEOC that the document included information that was obtained from a confidential mediation session. The EEOC then issued another Anended Charge that did not contain the assertedly confidential statements. See, Proposed Second Amended Answer, supra at ¶26. Thereafter, Edstrom provided more information to the EEOC investigators, from the same telephone call of March 20, 2006. See, EEOC Memo, supra at p. 5. The EEOC has informed Hibbing Taeonite that it does not intend to use those assertedly confidential statements in this litigation. Id. at p. 7; see also, Reply to Motion (“Reply”), Docket No. Ip3 at p. 15. Consistent with that representation, the allegedly confidential statement does not appear in the EEOC’s Complaint. See, Docket No. 1.
The EEOC filed a Memorandum in Opposition to Hibbing Taconite’s Motion to Amend, as well as a Declaration of Laurie A. Vasichek (“Vasichek Declaration”), with exhibits, see, Docket Nos. 33, Sip, in which it argues that Hibbing Taconite’s Motion should be denied on futility grounds, because the Trial will adjudicate the EEOC’s claims, and therefore, Hibbing Taeonite has not been prejudiced by the assertedly confidential disclosures. In addition, the EEOC contends that the telephone conference, on March 20, 2006, was not a mediation session to which confidentiality attaches. See, EEOC Memo, supra. In its Reply, Hibbing Taeonite maintains that the newly proposed affirmative defenses are not futile, and should be permitted. Moreover, Hibbing Taeonite disputes the EEOC’s characterization of the conference call, on March 20, 2006, as not constituting a mediation session, and asks that the Court not consider the Vasichek Declaration, and its exhibits.
III. Discussion
A. Standard of Review. Rule 15(a), Federal Rules of Civil Procedure, provides, in pertinent part, as follows:
[A] party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.
In construing this Rule, the Supreme Court has observed:
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared 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.-—the leave should, as the rules require, be “freely given.”
Foman v. Davis,
Here, the Pretrial Order set a deadline of September 1, 2009, as the date by which all Motions to amend the pleadings, or add parties, were to be filed, and the Hearing thereon completed. See, Docket No. 17. While Hibbing Taeonite filed its Motion to Amend on September 1, 2009, the Hearing thereon
Where, as here, the deadline for the amendment of the pleadings has expired, the propriety of an extension, so as to allow consideration of a Motion to Amend, “is most properly considered within the framework of Rule 16(b), Federal Rules of Civil Procedure.” Alholm v. American S.S. Co.,
Rule 16(b), Federal Rules of Civil Procedure, provides that a Scheduling Order “shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.” The “good cause” standard is an exacting one, for it demands a demonstration that the existing schedule “cannot reasonably be met despite the diligence of the party seeking the extension.” Rule 16(b), Federal Rules of Civil Procedure, Advisory Committee Notes—1983 Amendment; see also, Julian v. Equifax Check Services, Inc.,178 F.R.D. 10 , 16 (D.Conn.1998). It hardly bears mentioning therefore, that “carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Johnson v. Mammoth Recreations, Inc.,975 F.2d 604 , 609 (9th Cir.1992). Nor does the question of good cause turn on the existence or absence of prejudice to the non-moving party. Luigino’s Inc. v. Pezrow Cos., [178 F.R.D. 523 ], at 525 [ (D.Minn.1998) ].
Scheidecker v. Arvig Enterprises, Inc.,
The Eighth Circuit has reiterated that Rule 16(b) provides the appropriate standard in the context of Motions to Amend that arise after the deadline for such Motions has expired, by stating, as follows:
It is true that the Federal Rules are usually liberally construed to permit parties to amend pleadings, add additional parties and to similarly control the pace of litigation. See, e.g., Hopkins v. Saunders,199 F.3d 968 , 974 (8th Cir.1999), cert, denied,531 U.S. 873 ,121 S.Ct. 176 ,148 L.Ed.2d 121 (2000); Gray v. Bicknell,86 F.3d 1472 , 1481 (8th Cir.1996). As regards ease management orders, however, the Federal Rules set a less forgiving standard. Federal Rule of Civil Procedure 16(b) specifies that such an order “shall not be modified except upon a showing of good cause and by leave of the district judge.” Thus, a moving party must first make the requisite showing. Even then the district court retains discretion as to whether to grant the motion. As a vehicle designed to streamline the flow of litigation through our crowded dockets, we do not take case management orders lightly, and will enforce them. In re Milk Prods. Antitrust Litig.,195 F.3d 430 , 437 (8th Cir.1999), cert, denied sub nom Rainy Lake One Stop, Inc. v. Marigold Foods Inc.,529 U.S. 1038 ,120 S.Ct. 1534 ,146 L.Ed.2d 348 (2000).
Bradford v. DANA Corp.,
The good cause standard is an exacting one, and requires a demonstration that the Scheduling Order “cannot reasonably be met despite the diligence of the party seeking the extension.” North Star Mutual Ins. Co. v. Zurich Ins. Co.,
As was expressed, in Rouse v. Farmers State Bank of Jewell,
A scheduling order is an important tool in controlling litigation. Jochims v. Isuzu Motors, Ltd.,145 F.R.D. 507 , 510 (S.D.Iowa 1992). A magistrate judge’s scheduling order “is not a frivolous piece of paper, idly entered, which can be cavalierly*266 disregarded by counsel without peril.” Gestetner Corp. v. Case Equip. Co.,108 F.R.D. 138 , 141 (D.Me.1985). Scheduling Orders have become increasingly critical to the district court’s case management responsibilities because “[i]t is well known that we litigate these days under the burden of heavy caseloads and clogged court calendars.” Id.
The Court also noted that “the flouting of discovery deadlines causes substantial harm to the judicial system.” Id., citing Geiserman v. MacDonald,
B. Legal Analysis. While the EEOC did not object to Hibbing Taeonite’s Motion as being untimely, we have an inherent interest in preserving our Scheduling Orders, so as to preserve the integrity of the Court’s processes, as well as to enforce the command of Rule 1, Federal Rules of Civil Procedure, that civil actions be administered so as to assure the just, speedy, and inexpensive, resolution of matters venued in Federal Court. Hibbing Taconite argues that it has good cause to amend its Amended Answer because it received the EEOC’s initial disclosures on July 31, 2009, and filed its Motion to Amend just one (1) month later, after reading through those disclosures. See, Hibbing Taconite Memo, supra at p. 3.
In light of the short time frame between Hibbing Taconite’s receipt of the EEOC’s initial disclosures, Hibbing Taeonite’s efforts to file the Motion before the deadline, and the time afforded to Hibbing Taconite to prepare and file a Reply brief, we exercise our discretion to hear Hibbing Taco-nite’s Motion to Amend and to consider the Motion on its merits. Stated differently, Hibbing Taconite has satisfied the good cause standard which is the threshold through which such Motions must pass.
1. Standard of Review. In assessing Motions to Amend pleadings, we are obligated to examine whether granting such an amendment would be a futile act. See, DeRoche v. All American Bottling Corp.,
“When reviewing a Rule 12(b)(6) dismissal for failure to state a claim, we look only to the facts alleged in the complaint and construe those facts in the light most favorable to the [nonmoving party].” Riley v. St. Louis County,
“Nevertheless, dismissal under Rule 12(b)(6) serves to eliminate actions which are fatally flawed in their legal premises and designed to fail, thereby sparing litigants the burden of unnecessary pretrial and trial activity.” Young v. City of St. Charles, supra at 627, citing Neitzke v. Williams,
Hibbing Taconite seeks to amend its Amended Answer in order to assert four (4) additional affirmative defenses. The Eighth Circuit has not specifically ruled on whether affirmative defenses must meet the same pleading requirements as claims, and a survey of decisions in the District Courts of this Circuit reveals somewhat murky waters in the Courts’ varying approaches. See, e.g., Robertson v. LTS Management Services LLC, et al.,
In contrast, the Court of Appeals for the Fifth Circuit has long held that affirmative defenses are subject to the same pleading requirements as a Complaint, so as to afford fair notice to the plaintiff. See, Woodfield v. Bowman,
District Courts in other Districts have also held affirmative defenses to the same pleadings standards as apply to claims and Counterclaims. See, e.g., Tracy ex rel. v. NVR, Inc.,
We are persuaded by the Fifth Circuit’s reasoning in Woodfield v. Bowman, supra, and by the developing trend of the District Courts, to require the defendant to plead an adequate factual basis for affirmative defenses, where the basis is not apparent by the defense’s bare assertion. As a consequence, we evaluate Hibbing Taconite’s Second Amended Answer for futility with the Twombly pleading standards in mind, and we conclude that Hibbing Taconite has pled enough facts to meet the minimum pleadings standards. For reasons which follow, we find that the four (4) newly proposed 'affirmative defenses are futile as a matter of law.
2. Legal Analysis. As a preliminary matter, the EEOC has submitted a Declaration, that is supported by several exhibits, with its Memorandum in Opposition. See, Docket Nos. 33-31. In its Memorandum, the EEOC challenges the accuracy of Hibbing Taconite’s factual assertions which serve as the underpinning of the four (4) affirmative defenses. See, EEOC Memo, supra at p. 13, n. 9. Of course, in evaluating the sufficiency of pled defenses or claims, the Court reviews the pleadings on their face—staying within their four (4) corners. See, Trostel & Sons Co. v. Notz,
Of course, a Court may consider “materials that are necessarily embraced by the pleadings.” See, Porous Media Corporation v. Pall Corporation,
a. Unclean Hands. While Hibbing Taco-nite does not assert specific facts to support an unclean hands defense, it is clear, from the proposed Answer as a whole, that the defense is based upon the EEOC’s use, in issuing its cause finding, of information that was obtained during the telephone call of March 20, 2006. According to Hibbing Taco-nite, the affirmative defense is not futile because it is available against the EEOC in this context, and may, at the very least, limit the EEOC’s remedies. See, Reply, supra at p. 8. In response, the EEOC argues that the Government is not subject to an unclean hands defense when it is acting in the public’s interest. See, EEOC Memo, supra at p. 14.
Unclean hands is an equitable defense which prevents a party from maintaining a suit in equity. Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co.,
A survey of cases on the question discloses that Courts have been hesitant to allow the defense of unclean hands against the Government when it acts in the interest of the public. See, e.g., EEOC v. Recruit U.S.A., et al,
However, the Court of Appeals for the Eighth Circuit has not addressed the question. In U.S. ex rel. Zissler v. Regents of the University of Minnesota,
Here, the EEOC plainly exercises public interest through its enforcement of the ADA, but we need not determine whether a defense of unclean hands should be unavailable, as a matter of law, against the EEOC in its public capacity, because Hibbing Taconite has not pled a viable defense on that issue. To survive a Motion to Dismiss an equitable defense of unclean hands against the EEOC, Hibbing Taconite must sufficiently plead that the EEOC acted in bad faith, or inequitably, in its dealings with Hibbing Taconite. See, Precision Instrument Mfg. Co. v. Automotive Maintenance Machinery Co., supra at 814-15,
To show that the misconduct was relative to the matter, a defendant must demonstrate that the misconduct has a “direct nexus” to the right being enforced in the suit. See, EEOC v. Bay Ridge Toyota, Inc.,
The case law on nexus is limited in the context of government action, but does reflect that, for an unclean hands defense to succeed, the Government’s improper action must be related to its acquisition of the right in suit that it seeks to enforce. See, Pierce v. Apple Valley, Inc.,
Here, Hibbing Taconite has not alleged a legally sufficient nexus, and has not suffered prejudice in its defense of the case. The EEOC has agreed not to use the information that Hibbing Taconite alleges emanated from the mediation sessions as evidence,
For reasons we subsequently detail, the basis for the issuance of a cause finding is not a justiciable matter in this litigation, since the EEOC must prove, at Trial, that the alleged discrimination against Edstrom did, in fact, occur. Even if we were to exercise our discretion so as to allow an unclean hands defense against the Government in its public function, Hibbing Taconite has not pled a sufficient nexus between the EEOC’s alleged conduct, and the allegations in the EEOC’s Complaint, and so we find the unclean hands defense to be futile.
b. Violation of Federal Mediation Privilege. Next, Hibbing Taconite seeks to assert an affirmative defense based upon the EEOC’s purported violation of a Federal mediation privilege. In its Reply, Hibbing Taconite urges this Court to recognize such a privilege, while the EEOC argues that the Federal mediation privilege has not been recognized in this District, or Circuit, and that the facts do not support Hibbing Taeonite’s assertion that the statements were made during any mediation sessions.
Notably, the Federal mediation privilege has not been recognized by either the Eight Circuit, or by the District of Minnesota.
The statements on March 20, 2006, which the EEOC has agreed not to use as evidence, and has removed from the charge, are not a part of the Complaint brought by the EEOC. Even if the statements were made in breach of a mediation privilege, the privilege is evidentiary, and not an affirmative defense. Hibbing Taconite has not cited any authority which holds that the remedy for a breach of the Federal mediation privilege is the dismissal of an underlying claim, and our independent search has failed to reveal any. Therefore, the addition of Hibbing Taconite’s proposed affirmative defense of a violated mediation privilege presents a futile act, and we deny that aspect of its Motion.
c. Tainted Investigation and Probable Cause Finding. As its proposed tenth affirmative defense, Hibbing Taconite asserts that the EEOC “knowingly received and relied upon confidential information protected by the mediation privilege during its investigation, tainting both its investigation and the cause finding that it issued against Hibbing Taconite.” and that “[t]he EEOC violated Hibbing Taconite’s rights by conducting its investigation in such a manner and knowingly relying on privileged information to issue a cause finding.” See, Second Amended Answer, at ¶27. In response, the EEOC argues that its investigation, and its probable cause finding, are not renewable for sufficiency or quality, see, EEOC Memo, supra at p. 22, and that any taint is “cured” by the de novo Trial to come. Id. at p. 24. According to Hibbing Taconite, however, there is no case law on the subject of the EEOC’s use of improperly acquired information, it is “inherently unfair” to allow the EEOC to employ information obtained during the mediation process, and therefore, Hibbing Taconite should be allowed the opportunity to investigate the circumstances. See, Reply, supra at pp. 13-14.
As a statutory prerequisite to suit, the EEOC must perform an investigation, and Courts will review whether an investigation occurred. See, EEOC v. NCL America,
Hibbing Taconite has not alleged that the EEOC completely failed to investigate Edstrom’s charge of discrimination but, rather, asserts that, in using the information obtained in the mediation session, the EEOC improperly conducted its investigation, thereby resulting in an unfair determination of reasonable cause. Under current case law, however, this is not sufficient as an affirmative defense, as Courts may only review whether the investigation took place in order to determine if the EEOC fulfilled the statutory prerequisites to suit. Whether the determination was made in error is an issue for the Trial, when the EEOC must prove to a fact-finder that the discrimination alleged in fact occurred. As such, Hibbing Taconite’s asserted affirmative defense of a tainted investigation and reasonable cause finding, is futile. Therefore, we deny Hibbing Taco-nite’s Motion to Amend as to that proposed defense.
d. The EEOC’s Failure to Conciliate in Good Faith. In its eleventh asserted defense, Hibbing Taconite alleges that the EEOC did not participate in conciliation in good faith, “because [the EEOC] failed to disclose relevant information to Hibbing Taconite.” See, Second Amended Answer, at ¶ 28. The EEOC argues that the Court is only permitted to review whether or not the EEOC ‘“made an attempt at conciliation’,” and not the substance of that conciliation attempt, and that the EEOC has no duty to disclose all of the specific details upon which it finds a violation. See, EEOC Memo, supra at p. 25.
The ADA incorporates, by reference, Title VII’s procedural requirements. See, Title 42 U.S.C. § 12117. Under Section 2000e-5(b), the EEOC must eliminate any alleged unlawful employment practice by “informal methods of conference, conciliation, and persuasion.” See, Title 42 U.S.C. § 2000e-5(b); see also, EEOC v. Preston Hood Chevrolet,
When a Court determines that the EEOC has attempted conciliation, but has not done so in good faith, the Court may stay the proceedings, and remand for conciliation efforts to resume. See, EEOC v. CRST Van Expedited, Inc., supra at * 19 n. 24 (“Had the EEOC not wholly abdicated its role in the administrative process, the court might have stayed the instant action for further conciliation in lieu of dismissal.”); EEOC v. Die Fliedermaus,
The EEOC’s conciliation effort “must, at a minimum, make clear to the employer the basis for the EEOC’s charges against it.” See, EEOC v. Aspludh Tree Expert Co.,
Here, Hibbing Taconite argues that the EEOC failed to conciliate in good faith by failing “to disclose relevant information.” Under the circumstances presented here, the Court agrees with the EEOC, that the conciliation requirement does not necessitate that the EEOC disclose all of the underlying evidence or information to the employer. Rather, the conciliation process requires that the EEOC provide the employer with sufficient information to assure that the employer knows the basis of the charge, and is able to participate in the conciliation process fully. Contrast, EEOC v. Paramount Staffing Inc.,
Here, Hibbing Taconite’s allegation, that the EEOC failed to disclose information concerning Edstrom’s alleged recitation of statements, which were made during the telephone call of March 20, 2006, simply does not rise to the level of administrative bad faith illustrated by First Midwest, or Die Fliedermaus. For example, Hibbing Taconite has not alleged that the EEOC’s actions prevented Hibbing Taconite from understanding the basis of the charge it faced, nor has Hibbing Taconite alleged that the EEOC gave it an unreasonable amount of time to consider the conciliation offers. Similarly, Hibbing Taco-nite has not alleged that the EEOC refused to meet with Hibbing Taconite, or refused to respond to Hibbing Taconite’s requests. In fact, upon receiving Edstrom’s Amended Charge, Hibbing Taconite contacted the EEOC, informed the EEOC that the statements from March 20, 2006, were confidential, and then received a newly Amended Charge without those statements included.
Further, there is nothing in Hibbing Taco-nite’s proposed pleading that alleges that the EEOC’s conduct, during the conciliation process, prevented it from receiving the full benefit of the period to resolve the conflict, prior to the EEOC’s filing of the Complaint.
Given the foregoing, we deny Hibbing Taconite’s Motion for leave to file its Second Amended Answer, as each of the newly proposed affirmative defenses is futile as a matter of law.
NOW, THEREFORE, It is—
ORDERED:
That Hibbing Taconite’s Motion for Leave to File Second Amended Answer [Docket No. 24] is DENIED.
Notes
. Local Rule 16.3 serves to reinforce the need for a party to show good cause, when seeking to extend the deadline for amending the pleadings. The Advisory Committee Notes to Local Rule 16.3 explain that the Rule is " * * * intended to discourage modifying pretrial schedules unless good cause has been shown.” Local Rule 16.3, Advisory Committee Notes.
. We recognize that the "no set of facts” standard, in reviewing Motions to Dismiss, was abrogated by the Supreme Court in Bell Atlantic Corp. v. Twombly,
. The EEOC argues that, because Hibbing Taco-nite seeks to assert the "quasi-jurisdictional” defense of failing to conciliate in good faith, we may properly examine extrinsic evidence as to that defense. See, EEOC Memo, supra at p. 10. The EEOC cites to EEOC v. Sears, Roebuck & Co.,
In a much more recent case, the Fifth Circuit, following the interpretive approach of the United States Supreme Court, "conclude[d] that the EEOC's conciliation requirement is a precondition to suit but not a jurisdictional prerequisite.” See, EEOC v. Agro Dist, LLC,
. In its brief, Hibbing Taconite cites to Fogg v. Gonzales,
. There is a larger body of law on the nexus requirement in the context of private actions, which the Court finds instructive on this point. In a private action, nexus requires that the plaintiff's use of its right, or the acquisition of its right to sue at all, is inequitable. See, Specialty Minerals, Inc. v. Pluess-Staufer AG, et al.,
. In its Reply, Hibbing Taconite argues that it has been prejudiced in that the EEOC initiated the action, and that Edstrom has “repeatedly stated that information he learned at the mediation caused him serious emotional harm.” Reply, supra at p. 16. Unclean hands is an equita
. The EEOC discusses the confidentiality provisions of the Administrative Dispute Resolution Act, Title 5 U.S.C. §§ 571-574 ("ADRA"), at length in its brief. See, EEOC Memo, supra at 16-19. Hibbing Taconite responds that the ADRA is inapposite because of the EEOC’s assurances, to participating parties, that the mediation process is confidential. See, Reply, supra at 8, n. 5. Any discussion of the limits and bounds of confidentiality, in this context, is better left to an evidentiary objection, and not to a Motion to Amend so as to assert affirmative defenses. We necessarily must take the factual assertions, as contained in Hibbing Taconite's proposed pleading—namely, that the telephone call on March 20, 2006, was a confidential mediation session'— as true for the purposes of this Motion.
. Hibbing Taconite argues in its Reply that the EEOC's agreement to withdraw the evidence is a "hollow” promise, because of the qualification that, if the information should become otherwise discoverable, the EEOC will use it as evidence. We find the EEOC's qualification to be reasonable. "[T]he mediation privilege does not protect from disclosure ‘any evidence otherwise’ and independently 'discoverable merely because it [wa]s presented in the course of' the Mediation.” Sheldone v. Pennsylvania Turnpike Commission,
. According to its Reply, Hibbing Taconite contends that we have an independent basis to grant leave to amend on the issue of the mediation privilege; namely, an estoppel based upon the EEOC's distribution of "materials to participants in which [the EEOC] expressly promises that all statements made during the mediation will remain confidential.” See, Reply, supra at 8-9. It remains unclear, however, if Hibbing Taconite is referring to judicial or equitable estoppel. In Heckler v. Community Health Seivices of Crawford County, Inc.,
Judicial estoppel is “a common law doctrine by which a party may be estopped from asserting a position in a legal proceeding that is inconsistent with a position previously taken in the same or an earlier proceeding * * * ” and "Judicial estoppel * * * 'may apply against the Government when equitable estoppel would not * * * ' ” as "[C]ourts construe the doctrine of judicial estoppel narrowly when applied against the Government.” EEOC v. Exxon Corp.,
. Hibbing Taconite has expressed concern over any citation to cases, such as Equicredit, and Preston Chevrolet, where the Courts were deciding Motions for Summary Judgment based upon an expanded Evidentiary Record. We are sensitive to the fact that the Motion before us is a Motion to Amend a Pleading, which evaluated under the standards of a Motion to Dismiss pursuant to Rule 12(b)(6) and (f). The cases in which the Courts were deciding Summary Judgment Motions explain the factual circumstances under which a claim or affirmative defense would be viable, and correlatively, the types of allegations that must be pled for a claim or defense to survive a Motion to Dismiss under Rule 12. Here, we do not evaluate the sufficiency of Hibbing Taconite's factual assertions, but rather, the legal sufficiency of its proposed affirmative defenses, with the relevant case law as our guide.