The court finds that neither the Defendants’ general denials of coverage by the FLSA, nor any other matters cited by Defendants raised the professional employee issue sufficient to put Plaintiff on notice of Defendants’ intent to rely on that particular affirmative defense. The professional employee defense was first raised in Defendants’ Motion for Summary Judgment filed on December 15, 2004, subsequent to the close of fact discovery on November 15, 2004. The court finds that Plaintiff did not have notice of Defendants’ intent to raise the affirmative defense until after the close of fact discovery. Plaintiff is prejudiced by the inability to conduct discovery on the defense. Accordingly, it has been waived. Renfro v. City of Emporia, Kansas, 948 F.2d 1529, 1539-40 (10th Cir.1991) (<HOLDING>). Rather than striking the materials submitted
holding that the defendants waived their affirmative defense of unenforceability by failing to raise the defense in response to the plaintiffs motion for summary judgment which the trial court granted holding that the trial court correctly entered summary judgment in favor of defendant and denied plaintiffs motion for summary judgment where plaintiff failed to establish by clear and convincing evidence that defendant breached its duty to act in good faith holding that arguments not raised in opposition to a motion for summary judgment are waived holding that a defendant waived the affirmative defense of an exemption under the flsa where it was not raised until after an order had been entered in favor of plaintiffemployees on a motion for summary judgment holding that defendant had waived any defense of improper venue when he made the argument only after filing a motion for summary judgment