This post provides a comprehensive list of Affirmative Defenses that can be used to invalidate a claim.

NOTE: This post is still under construction…

Notice
I am not an attorney. This information is based on my personal research, observations and opinions. Laws vary from state to state. You are responsible for verifying the accuracy of any information you take from this site – and are liable for what you do with it.

The Affirmative Defenses are briefly discussed and many are listed are those stated in Justice Court Rules of Civil Procedure 8(c).

This doesn’t include every available affirmative defense. An affirmative defense is anything that would work under the law. They are as unique to the case circumstances as the claims themselves.

Listed alphabetically… with a drop down information.

accord and satisfaction

Accord and Satisfaction

This defense may be used if the parties agreed to give and accept something to settle the claim that’s being argued about in the lawsuit, and then they performed that agreement. It might apply, for example, if the plaintiff agreed to settle for less than he’s suing for, and the defendant paid the lower amount. The “accord” is the new agreement, and the “satisfaction” is performance of the new agreement.

The essential elements of an ‘accord and satisfaction’ are:

proper subject matter (directly relates to the initial issue)
competent parties
an agreement, or a ‘meeting of the minds’
consideration

Accord and Satisfaction is often used in cases where a lesser payment was made as a kind of ‘settlement’ or ‘payment in full.’ However, it does not have to be monetary. Any actions of the parties that could be interpreted as the offering and acceptance of a ‘settlement’ would qualify for the accord and satisfaction defense.

Case Law

GENERAL:

‘Accord and satisfaction’ requires a new agreement and the ‘performance thereof‘:

Jaffray v. Davis, 124 N.Y. 164

“Further, strong public policy supports the use of accord and satisfaction. Accord and satisfaction is a convenient and valuable tool for resolving disputes informally without litigation.”

Burke Co. v. Hilton Dev. Co., 802 F.Supp. 434 (N.D.Fla. 1992)

“The accord and satisfaction defense rests upon a contract, express or implied, in which the parties agree to the discharge of an existing obligation by means of a lesser payment tendered and accepted.”

Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969)

ACCEPTANCE OF ‘SETTLEMENT’:

“It would be unjust to allow a party to accept a check as an accord and satisfaction, and then later permit that party to sue under the same rights and obligations that the accord and satisfaction was intended to release. The person cannot ‘have his cake and eat it too.’”

Martinez v. Bayshore, 979 So. 2d 1023, 1024 (Fla. Dist. Ct. App. 2008), quoting Burke Co. v. Hilton Dev. Co., 802 F.Supp. 439 (N.D.Fla. 1992)

“[T]he discharge of a debt by accord and satisfaction occurs when a debtor renders performance different from that allegedly due to his creditor and the creditor accepts the substituted performance in full satisfaction of the disputed claim. . . . The cashing . . . of a check expressly sent in full settlement of a disputed claim, operates as an accord and satisfaction . . . .”

Gilreath v. Sentry Ins. Co., 38 Conn. Sup. 423, 450 A.2d 873 (1982)

The Supreme Court found a valid accord and satisfaction, even though the dispute between the parties existed when a lesser officer of the plaintiff corporation accepted a check not knowing of the dispute.

Hanley Co. v. American Cement Co., 108 Conn. 473, 143 A. 566 (1928)

act of god

Act of God

This defense against liability applies in cases where the alleged damages were completely outside of the defendant’s control – by a ‘force of nature,’ most commonly a natural disaster.

Case Law

IN GENERAL:

DAMAGE OF GOODS IN TRANSPORT:

Both statute and case law supports the common-law rule that a carrier is liable for damage to goods it transports unless it can show that the damage was caused by “(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods.“

Bills of Lading, 52 I.C.C. 671, 679; Chesapeake O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 421-423

However, the burden of proof is upon the carrier to show that ‘1) it was not negligent and 2) the damage was caused by the act of god.‘

Galveston, H. S. A. R. Co. v. Wallace, 223 U.S. 481, 492; Chicago E. I. R. Co. v. Collins Co., 249 U.S. 186, 191; Chesapeake O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 420-423; Thompson v. James McCarrick Co., 205 F.2d 897, 900

arbitration and award

Arbitration and Award

This defense might apply if the same thing that is being argued about in the lawsuit has already been decided in arbitration. An “arbitration” is a
sort of mini-trial, less formal than a court proceeding, where the parties present their case to an arbitrator, who then makes a decision.

Obviously, any issue that has already been the subject of any previous decision could be barred from being tried again.

assumption of risk

Assumption of Risk

This defense might apply if a plaintiff suffers some personal injury as a result of something they did despite being aware of the potential risk ahead of time. If someone knows there’s a risk and chooses to go ahead with the action anyway, they may be responsible for the harm they suffer as a result. Generally, a person isn’t entitled to relief on an injury he
received when voluntarily exposing himself to risk.

Most court define the ‘assumption of risk’ as: the (1) consent or acquiescence in (2) an appreciated or known (3) risk.

To use this defense, you must do more than simply state that the assumption of risk existed – or even that you have evidence to that effect (ie., ‘the evidence in this case will show that the plaintiff was aware of the risk when stepping onto the property‘). It is necessary to explain what the risk was and how they knew (ie., ‘there were several warning signs posted where the plaintiff entered the property, making it clear that he was aware of the dangers.’)

Case Law

GENERAL:

A mere reference to the assumption of risk doctrine is not sufficient ‘without any legal or factual basis for the affirmative defense, does not provide fair notice of the defense.’

Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049-50 (N.D. Cal. 2004)

‘[T]he practicalities of proof require that the defense of assumption of the risk also be applicable where the risk is so obvious that plaintiff must have known and appreciated it.‘

Benjamin v. Deffet Rentals (1981), 66 Ohio St.2d 86, 89 [20 O.O.3d 71]; Wever v. Hicks (1967), 11 Ohio St.2d 230, 234 [40 O.O.2d 203]. See, also, Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166 [51 O.O.2d 232]

claim preclusion

Claim Preclusion

see res judicata (below)

contributory negligence

Contributory Negligence

This defense applies if a plaintiff has contributed to the injury he or she obtained by being negligent along with the defendant who allegedly caused the injury.

The acceptance of this defense by the courts seems to be waning, especially as it applies to completely absolving a defendant of responsibility for negligence. However, it can reduce the amount of liability a defendant is responsible for, to achieve a kind of ‘shared’ liability – also referred to as ‘comparative negligence’ and/or ‘comparative fault.’ This defense has also been compared with the ‘assumption of risk’ defense.

You may want to check your state for the accepted defense for raising this issue.

Most of the case law on this issue debates whether it is still a valid defense, and not the defense itself.

Case Law

To prove contributory negligence in states where it is recognized (such as New Hampshire), the defendant must prove that the plaintiff failed to exercise care and that such failure was a substantial factor in bringing about his/her injury.

“A plaintiff’s [contributory] negligence involves a breach of
the duty to care for oneself.”

Boughton v. Proulx, 880 A.2d 388, 396 (N.H. 2005)

discharge in bankruptcy

Discharge in Bankruptcy

This defense might apply if a defendant has filed bankruptcy since the incident(s) referenced in the claim – and the
claim (or possibility of the claim) was included in the bankruptcy and subsequently “discharged” by the
bankruptcy court.

duress

Duress

“Duress” means compelling someone to act against his wishes or interests by force, false imprisonment, or threats. This defense might apply, for example, where force was used to get someone to sign a will or agreement, in which case a court could declare the will or agreement void.

estoppel

Estoppel

“Estoppel” means that if plaintiff made a statement relating to the thing being sued for, and defendant relied on that statement to his injury, then the court might prevent plaintiff from taking some position different than the statement he first made. For example, in a case filed by a landlord to recover rent, if the landlord told the tenant that no rent would be charged for each month the tenant performed work at the apartment complex, and if the tenant actually
performed the work, the court might find that the landlord was “estopped” (or precluded) from claiming he was entitled to rent for every month of the lease.

Case Law

The simple assertion of estoppel, “with numerous possible applications requires additional specificity to satisfy the notice pleading standard.”

Pls.’ Mot. to Strike at 4, quoting Ganley v. County of San Mateo, 2007 WL 902551, *2 (N.D. Cal. March 22, 2007)

Merely listing estoppel as an affirmative defense fails to provide fair notice of its basis, particularly given the numerous types of estoppel.

See Black’s Law Dictionary 589-91 (8th ed. 2004)

executive power

Executive Power

Often used in cases relating to ‘official’ abuse, Executive Power relates to the authority to enforce orders and to ensure they are carried out as intended.

The ‘executive power’ defense might be used in cases where the actions complained of are protected by law, to enable the person to properly execute their power by law (ie., prosecutors). The idea is that they can’t properly do their job if they must worry that they will be sued for making a mistake.

Conversely, the defense could also be used in cases where someone did not actually have the ‘executive power’ to act.

Executive power does not have to be absolute. If someone contributes in any way to the ‘executive power’ that inflicted the harm, or if they could have acted in a way to help prevent or even object to the harm done, then they could be, at least partially, liable.

failure of consideration

Failure of Consideration

‘Consideration’ refers to the relief (or award) sought in a lawsuit.

Therefore, the ‘failure of consideration’ defense argues that the thing that plaintiff is seeking relief for in his lawsuit has lost all of its value or has ceased to exist. This defense might apply if a plaintiff never performed the services or delivered the goods. Or perhaps the service or goods were defective. The point is, the plaintiff isn’t entitled to relief, because the thing that entitled him or her to that relief did not occur.

failure to state a claim upon which relief can be granted

Failure to State a Claim

This is technically a ‘negative’ defense, but I have seen cases where the court allowed it as an affirmative defense. However, I have also seen it stricken based on the error of filing it under ‘affirmative.’ So if you use it, I recommend using it correctly.

The ‘failure to state a claim’ defense is just what it sounds like: The claim – EXACTLY as it is presented by the plaintiff – fails. To win on this defense, you can’t dispute any of the allegations. The ‘failure’ must come from a flaw the case itself, as described by the plaintiff. To determine this, I like to compare the lawsuit to a mathematical equation:

actionable conduct + legal remedy = claim.

Viewing the complaint in this light, one can examine the ‘allegations’ in the complaint to determine if they add up. For a very simplistic example, let’s say someone is suing you for defamation (the ‘claim’). The allegations – which must be viewed, for the moment, as true – must contain a level of ‘actionable conduct’ that, when combined with the ‘legal remedy’ adds up to a properly ‘stated’ claim. In this case, a claim of defamation requires that certain ‘elements’ be met, such as that the defendant must have 1) made a false statement and 2) shared it with a third party. If one or the other of these elements is not included in the plaintiff’s allegations, the claim fails (defamation is actually more complicated than this example). There are also elements to the legal remedies available, which could also challenge the validity of a claim. It is well worth the effort to read everything you can about the claim(s) against you, and then compare them to the allegations.

The ‘failure to state a claim’ defense is actually a significant one but, as with all defenses, it has to followed up with a separate pleading in order to be used (the statement of defense in your Answer is only putting the plaintiff on notice of your intention to use the defense). For this defense, the pleading will likely be a Motion to Dismiss which, if granted, will result in the claim being thrown out of court.

Case Law

Plaintiffs contend that failure to state a claim upon which relief can be granted is not an affirmative defense. (Pls.’ Mot. at 7.) Defendants again concede that this does not “formally qualify” as an affirmative defense, but argue that Rule 12(b) supports the propriety of affirmatively asserting the defense in a responsive pleading. (Defs.’ Resp. at 8.) Rule 12(b) requires that every defense shall be asserted in the responsive pleading. Failure to state a claim may be raised at various stages of the litigation, including “in any pleading permitted or ordered under Rule 7(a).” Fed.R.Civ.P. 12(h)(2). Whether or not failure to state a claim formally qualifies as an affirmative defense, it is a defense properly raised in the Answer and provides fair notice of its basis.

fraud

Fraud

“Fraud” means an intentional misrepresentation, deception, or concealment of an important fact, made with the intent to deprive another person of his rights or property or to otherwise injure another person.

Fraud as a defense might occur when the plaintiff has engaged in fraudulent behavior that interferes with his or her right to relief.

illegality

Illegality

Most often used in contract disputes. This defense might apply in a breach of contract, if the contract requires a party to perform an illegal act or to violate the law, in which case the contract might be unenforceable.

Case Law

GENERAL

This is another affirmative defense that must state the specific issue in order to provide fair notice to the plaintiff. Merely listing a doctrine ‘does not provide fair notice of the nature and basis for the defense.’

Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d at 1049-50

individual capacity

Individual Capacity

‘Individual capacity’ refers to a person’s status as a natural person, distinct from any other role. For example, an officer, employee or agent of a corporation, acting ‘in their individual capacity’ is acting as himself and/or in his own interests, rather than as a representative of the organization they are working under.

Unlawful acts and/or conduct that are not authorized by the organization, and/or not protected by the law governing the person’s position, are considered actions taken in a person’s ‘individual capacity.’ It basically makes the individual personally responsible.
injury by fellow servant

Injury by Fellow Servant

This defense might be used by an employer who is being sued by an employee for a personal injury suffered on the job, where the injury was actually caused by the negligence or misconduct of ‘fellow’ employee.

intervening act

Intervening Act

Sometimes referred to as a ‘superseding cause’ (or act), this relieves the defendant of liability when the intervening act was, or should have been, reasonably foreseeable.

There are two types of intervening acts: Dependent intervening acts (or causes) are set in motion by the defendant and therefore will usually not relieve the defendant of liability.

Independent intervening acts are events that arise totally independent of any action by the defendant.

intoxication

Intoxication

issue preclusion

Issue Preclusion

see res judicata (below)

jurisdiction

Jurisdiction

Jurisdiction refers to location and issue. It answers the question; ‘Does this case belong in this court?’

Case Law

STATE ISSUES IN FED COURT

As state courts are concerned with federal law, so federal courts are often concerned with state law and with what happens in state courts. Federal courts will consider state-law-based claims when a case involves claims using both state and federal law. Claims based on federal laws will permit the federal court to take jurisdiction over the whole case, including any state issues raised. In those cases, the federal court is said to exercise “pendent jurisdiction” over the state claims. Also, the Supreme Court will occasionally take appeals from a state supreme court where state law raises an important issue of federal law to be decided.

SUBJECT MATTER JURISDICTION

The standards …“whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant” relief, Maryland Casualty Co. v. Pacific Coal & Oil Co.,312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826

LACK OF ISSUE/CONROVERSY:

“Where t hreatened government action is concerned, a plaintiff is not required to expose himself to liability before bringing suit to challenge the basis for the threat. His own action (or inaction) in failing to violate the law eliminates the imminent threat of prosecution, but nonetheless does not eliminate Article III jurisdiction because the threat-eliminating behavior was effectively coerced. Similarly, where the plaintiff’s self-avoidance of imminent injury is coerced by the threatened enforcement action of a private party rather than the government, lower federal and state courts have long accepted jurisdiction. In its only decision in point, this Court held that a licensee’s failure to cease its royalty payments did not render nonjusticiable a dispute over the patent’s validity. Altvater v. Freeman,319 U.S. 359, 364, 63 S.Ct. 1115, 87 L.Ed. 1450. Though Altvater involved an injunction, it acknowledged that the licensees had the option of stopping payments in defiance of the injunction, but that the consequence of doing so would be to risk “actual [and] treble damages in infringement suits” by the patentees, a consequence also threatened in this case. Id.,at 365, 63 S.Ct. 1115. Respondents’ assertion that the parties in effect settled this dispute when they entered into their license agreement is mistaken. Their appeal to the common-law rule that a party to a contract cannot both challenge its validity and continue to reap its benefits is also unpersuasive. Lastly, because it was raised for the first time here, this Court does not decide respondents’ request to affirm the dismissal of the declaratory-judgment claims on discretionary grounds. That question and any merits-based arguments for denial of declaratory relief are left for the lower courts on remand. Pp. 770 – 777. 427 F.3d 958, reversed and remanded…. ” above quoted from…Medimmune, Inc. v. GenenTech, Inc., 549 U.S. 118, (2007)

justiciability

Justiciability

“Justiciability” refers to an issue that can (or cannot) be settled by a court. Or more specifically, it refers to limits on the issues over which a court can exercise its judicial authority. For example, the U.S. Constitution limits federal courts to nine ‘classes’ of litigation (and the U.S. Supreme Court has added further conditions to that). State courts also have their limits.

Certain requirements and conditions must be met for a case to be justiciable in any given court. The plaintiff must have ‘standing’ (the right) to bring the claim, the issue at question must not be ‘moot’ (of no significance or relevance), ‘unripe’ (not ready or triable), etc..

The tests for justiciability generally concern (1) the plaintiff’s rights and/or ability, (2) the issues, (3) the substance of the issues, and (4) the timing. The justiciability defense might be used if one of these issues is in

Case Law

THE STANDARD

Essentially, it comes down to “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant relief.”

Maryland Casualty Co. v. Pacific Coal & Oil Co.,312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826

LACK OF ISSUE/CONROVERSY:

Altvater v. Freeman, 319 U.S. 359, 364, 63 S.Ct. 1115, 87 L.Ed. 1450

Though Altvater involve an injunction, it acknowledged that the licensees had the option of stopping payments in defiance of the injunction, but that the consequence of doing so would be to risk “actual [and] treble damages in infringement suits” by the patentees, a consequence also threatened in this case.

Id.,at 365, 63 S.Ct. 1115

Respondents’ assertion that the parties in effect settled this dispute when they entered into their license agreement is mistaken. Their appeal to the common-law rule that a party to a contract cannot both challenge its validity and continue to reap its benefits is also unpersuasive. Lastly, because it was raised for the first time here, this Court does not decide respondents’ request to affirm the dismissal of the declaratory-judgment claims on discretionary grounds. That question and any merits-based arguments for denial of declaratory relief are left for the lower courts on remand.

Pp. 770 – 777. 427 F.3d 958, reversed and remanded…. ” above quoted from…Medimmune, Inc. v. GenenTech, Inc., 549 U.S. 118, (2007)

From same:

‘We must decide whether Article III’s limitation of federal courts’ jurisdiction to “Cases” and “Controversies,” reflected in the “actual controversy” requirement of the Declaratory Judgment Act, 28 U.S.C. § 2201(a), ‘

laches

Laches

The laches affirmative defense might apply if plaintiff failed to act promptly to enforce his rights. If plaintiff waited a long time to file a lawsuit, without having a good reason for the delay, and the delay has made it harder for defendant to defend the case, “laches” might apply to bar plaintiff’s lawsuit.

lack of capacity and/or standing

Lack of Capacity/Standing

This affirmative defense refers to the plaintiff’s right or ability to bring the issue before the court.

Case Law

GENERAL LAW

A party raising the issue of capacity or authority to sue “must state any supporting facts that are peculiarly within the party’s knowledge.“

Fed.R.Civ.P. 9(a)

license

License

The affirmative defense of ‘license’ might apply if a defendant received permission from the plaintiff (or some other authority) to take the action at issue in the lawsuit, which would have been unlawful if the permission had not been granted. For example, a plaintiff might not be able to make a claim for trespass if he or she gave the defendant permission (“license”) to enter the property.

mental illness

Mental Illness

This affirmative defense goes to a party’s capacity to be held liable for actions based on his or her mental state.

misnomer

Misnomer

The ‘misnomer’ defense refers to an error in naming a person, place, or thing. The error could apply to a party, indictment, accusation, pleading, or deed. The misnomer arises from an error in the presentation of an entity, not an error in the entity (identity) itself. For example, one defendant cannot be substituted for another under the guise of a misnomer. In most cases, a misnomer can be corrected by amending the complaint.

Case Law

GENERAL LAW“A misnomer in any pleading may, on the motion of any party, and on affidavit of the right name, be amended by inserting the right name”.

[Va. Code Ann. § 8.01-6]

mistake of fact

Mistake of Fact

payment

Payment

This defense might apply if the relief at issue in the lawsuit has already been made (it could be a payment or any other form fulfillment in the agreement, contract, etc.).

proximate cause

Proximate Cause

In law, a ‘proximate cause’ is something that is sufficiently connected to the issue complained of to be the cause of issue (injury, harm, loss, etc.). Therefore, to use the proximate cause affirmative defense, a defendant would need to identify another causal agent (could be a person, thing or event), aside from themselves, for the loss or injury.

There are two types of causation: cause-in-fact and proximate cause.

release

Release

This affirmative defense might apply in cases where a plaintiff made a written or oral statement to discharge (or ‘release’) the defendant from the payment, obligation, or duty that is the subject of plaintiff’s lawsuit.

res judicata

Res judicata

This Latin term refers to a legal issue that has already been judicially decided and ruled upon. This is also referred to as ‘claim preclusion’ or ‘issue preclusion.’

Res judicata and issue/claim preclusion (also called ‘collateral estoppel’) prevents a plaintiff from litigating the same issue or claim more than once. The premise is that, if the matter has already been decided in a court of law, one cannot simply bring it to another court in the hopes of achieving a different answer.

Res judicata does not apply to appeals, motions for reconsideration, and so forth. In other words, it does not deny the right to exhaust every provision for justice under law in the first litigation. It simply prevents attempts to evade the final decision when those provisions of due process have been exhausted, and attempt to re-litigate the matter for a different result. To determine whether res judicata applies as an affirmative defense, the court will first consider whether the previous litigation raised identical claims (or could have raised identical claims). The idea is that everyone is entitled to ‘due process,’ which includes their ‘day in court,’ but they are not entitled to endless attempts once an issue is decided. Otherwise, there would be no end to any case, ever.

The res judicata defense is raised when a similar issue has already been decided by a court in a prior proceeding (and a final judgment was entered).

In asserting this affirmative defense, a defendant should ‘identify’ the prior litigation with the preclusive (res judicata) effect – in order to provide ‘fair notice’ to the opposing party.

Case Law

The prior litigation must be referred to in the statement of the affirmative defense. Even in cases where the prior litigation is referenced in the existing case/pleadings, or could be easily assumed by the opposing party, that still does not eliminate the obligation of the person raising the defense ‘to provide fair notice of the basis for the affirmative defense.’

Wyshak v City National Bank, 607 F.2d at 827

However, the prior litigation is not limited to cases that are already mentioned in the pleadings. Other litigations, if applicable, may be brought in.

Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (claim preclusion) and Diruzza v. County of Tehama, 323 F.3d 1147, 1152 (9th Cir. 2003) (issue preclusion)

statute of frauds

Statute of Frauds

The “statute of frauds” is a law that requires most contracts to be in writing. This defense might apply if the parties have no written contract and the plaintiff’s case relies entirely on his word over the defendant’s. Since the plaintiff has the ‘burden of proof,’ the court would have to side with the defendant in that instance.

statute of limitations

Statute of Limitations

Since the “statute of limitations” is a law that sets the time limits for bringing certain matters to court, this affirmative defense would be raised when someone misses the deadline to bring their claim.

If a claim is filed after the time period allowed in the ‘statute,’ the court may find that it’s barred by the statute of limitations and dismiss it.

Although some courts don’t immediately ‘strike’ statute of limitations defenses that don’t explain why the claim is untimely, I don’t see how it could hurt to do so, especially if the time bar (or deadline) you’re relying upon is not obvious.

The Statute of Limitations defense can often be asserted immediately in a Motion to Dismiss (a ‘Rule 12(b)(6) Motion’), if the complaint discloses the date when the cause of action (the primary reason for the claim) occurred, or provides allegations that allow a conclusion about when they occurred. This is often the case in a breach of contract claim, for example, because generally the date of the breach is included in the complaint. A complaint is properly dismissed if it discloses a date that is outside
the limitations period. (See Bissette v. Harrod, 226 N.C. App. 1, 11,
738 S.E.2d 792, 799-800, disc. rev. denied, 367 N.C. 219, 747 S.E.2d
251 (2013)) (see also Barbee
v. Transit Mgmt. of Charlotte, 2013 N.C. App. LEXIS 559, at *12-
13, 227 N.C. App. 648, 745 S.E.2d 375 (June 4, 2013); and Hardin v. York Mem’l Park, 221 N.C. App. 317, 323, 730 S.E.2d 768, 775, disc. rev.
denied, 366 N.C. 571, 738 S.E.2d 376 (2013); and Birtha v.
Stonemor, 220 N.C. App. 286, 295, 727 S.E.2d 1, 8-9 (2012), disc. rev.
denied, 366 N.C. 570, 738 S.E.2d 373 (2013); Coderre v. Futrell, 224 N.C. App. 454, 458-59, 736
S.E.2d 784, 787 (2012).

a STATUTE OF limitations defense has been one of the more frequent grounds for successful motions to dismiss contract claims. This is not surprising
because a complaint will expressly allege facts showing when the
breach allegedly occurred, or such facts from which it can be inferred
when the breach must have occurred. In either case, the complaint
is properly dismissed if it discloses a date of breach outside
the limitations period. See Bissette v. Harrod, 226 N.C. App. 1, 11,
738 S.E.2d 792, 799-800, disc. rev. denied, 367 N.C. 219, 747 S.E.2d
251 (2013) (affirming dismissal where plaintiffs sued for breach of
contract more than three years after the breach occurred); Barbee
v. Transit Mgmt. of Charlotte, 2013 N.C. App. LEXIS 559, at *12-
13, 227 N.C. App. 648, 745 S.E.2d 375 (June 4, 2013) (unpublished)
(dismissing a breach of contract claim for failure to file the complaint
within the three-year statute of limitations); Hardin v. York Mem’l Park, 221 N.C. App. 317, 323, 730 S.E.2d 768, 775, disc. rev.
denied, 366 N.C. 571, 738 S.E.2d 376 (2013) (affirming dismissal of
one of the breach of contract claims where the burial plot in question
was resold more than a decade before plaintiffs filed suit); Birtha v.
Stonemor, 220 N.C. App. 286, 295, 727 S.E.2d 1, 8-9 (2012), disc. rev.
denied, 366 N.C. 570, 738 S.E.2d 373 (2013) (affirming dismissal of
all but one of the contract claims where plaintiffs’ complaint averred
that the cause of action arose on the date plaintiffs’ family members
were interred, which was more than three years prior to the date of
the complaint); Coderre v. Futrell, 224 N.C. App. 454, 458-59, 736
S.E.2d 784, 787 (2012) (affirming dismissal as to corporate plaintiff
which had earlier filed for bankruptcy; statute of limitations had expired
by the time the complaint was filed, and plaintiff ’s bankruptcy
did not toll the limitations period as plaintiff had argued).

Case Law

Federal Rule 8(c) provides, in pertinent part, that “a party shall set forth affirmatively . . . [a defense based upon the] statute of limitations.” The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff ‘fair notice‘ of the defense.

Conley v. Gibson,355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); 5 Wright Miller Federal Practice and Procedure, § 1274 at 323.” QUOTED FROM Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979)

‘The statute of limitations is a defense that may be asserted in a Rule 12(b)(6) motion.’

Horton v. Carolina Medicorp., Inc., 344
N.C. 133, 136, 472 S.E.2d 778, 780 (1996)

TIMING

In some cases, the clock might not start on the Statute of Limitations until the wrongdoing is discovered:

For example, federal cases of fraud, which normally are ‘brought within two years from the date on which the liability arises,’ are subject to the ‘discovery rule‘ which governs federal causes of action, and provides that Statutes of Limitation on actions arising from fraud ‘begin to run either from the date the fraud is discovered or from the date that it could have been discovered in the exercise of reasonable diligence.’

Byrne v. Autohaus on Edens, Inc., 488 F. Supp. 276, 280 (N.D.Ill. 1980)

The party seeking the benefit of the ‘discovery rule’ ‘bears the burden of proving that the circumstances warrant its application.’

Lukenas v. Bryce’s Mountain Resort, Inc., 538 F.2d 594 (4th Cir. 1976); Clift v. UAW, 818 F.2d 623 (7th Cir.1987)

unclean hands

Unclean Hands

A claim or issue that is based on fraud or a mistake.

Case Law

waiver

Waiver

The waiver defense might apply if plaintiff has knowingly given up the right he or she is now asserting – or if plaintiff’s actions could lead the court to believe that he or she has given up that right.

For example, if a service contract requires a payment on the 5th of every month, but the payment has regularly been made on the 30th of each month (and the services continued in spite of this), a court might find that the plaintiff “waived” his or her right to be paid on the 5th.

Other, Misc. or Special Affirmative Defenses

Each case is unique and, really any affirmative defense that is logical and has a basis in law can be raised. The worst that could happen is that it is stricken, and you can’t use it (which is the case if you don’t raise it).

CASE LAW:

Torres v. Goddard… on motion to strike…:

No. CIV 06-2482-PHX-SMM
United States District Court, D. Arizona
Torres v. Goddard
Decided Dec 3, 2007

I. Affirmative Defense (o): Persons and/or entities who are not presently parties to this action were wholly or partially at fault in causing the injuries or damages complained of by Plaintiffs.

Plaintiffs argue that this is not a proper defense under Rule 8(c), that Defendants fail to identify the person or entity that may be liable, and that the difference between this defense and affirmative defense (p) is not clear. (Pls.’ Mot. at 6.) Defendants respond that affirmative defenses are not limited to those listed in Rule 8(c), and that defense (o) as pleaded provides fair notice. (Defs.’ Resp. at 7.) The Court agrees that affirmative defense (o) provides fair notice, and that the defenses listed in Rule 8(c) are not exhaustive. Plaintiffs provide no support for their contention that Defendants must identify the persons or entities. Additionally, confusion as to the difference between this defense and affirmative defense (p) militates against striking this defense at the pleading stage.See S.E.C. v. Sands, 902 F. Supp. 1149, 1165 (C.D. Cal. 1995) (requiring that questions of law be clear and not in dispute in order for to strike an affirmative defense). Therefore the motion will be denied as to affirmative defense (o).

Same case:

J. Affirmative Defense (p): Failure to join a party or parties under Rule 19

Plaintiffs set for the same arguments to this defense as they do to affirmative defense (o). Defendants again assert that they are not required to name particular parties, and the Court agrees. Plaintiffs’ reply addresses the merits of the need to join government agencies and Western Union. (Pls.’ Reply at 6.) Plaintiffs do not “convince the Court . . . that under no set of circumstances could the defense succeed.” Sands, 902 F. Supp. at 1165 (citations omitted). Therefore the motion will be denied as to affirmative defense (p).

Case Law

Find and use any and all rulings that apply in your case.

Negative Defenses

Negative Defense refers to a defendant’s outright denial of the plaintiff’s allegations without there being any additional facts pleaded by way of avoidance. A defense is a denial, or answer or plea in opposition to the truth or validity of a claim by a plaintiff.

Unlike negative defenses, affirmative defenses are external to the complaint — they do not invalidate the claim for relief pleaded in the complaint.

Rule 12(f) of the Federal Rules of Civil Procedure authorizes a trial court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” For example, in Escobedo v. Oswego Junction Enterprises, No. 17- CV-0682, 2017 WL 3130643, at *4 (N.D. Ill., July 24, 2017) (M.J. Cox), a class-action case, the plaintiff sought to strike an affirmative defense alleging the putative class was overly broad and that both named plaintiffs were not qualified to act as class representatives because they were not similarly situated to other class members.The court observed that challenges to the adequacy of class allegations are treated as negative defenses, not affirmative defenses. The asserted defense was a direct attack on the allegations made in the plaintiffs’ complaint about the putative collective action.The court struck this affirmative defense challenging the adequacy of the class because it was more accurately classified as a negative defense and was not appropriately pleaded as an affirmative defense.For a second example, “failure to state a claim” is a negative defense that argues the plaintiff has not met its burden in establishing one or more elements of a claim. See Unigestion Holding S.A. v. UPM Technology Inc., 305 F.Supp.3d 1134 (D. Or. 2018); see also Hiramanek v. Clark, No. 13- 00228, 2015 WL 693222, at *2 (N.D. Calif., Feb. 18, 2015) (“Failure to state claim: [defendants] agree to remove this affirmative defense, which is an improper negative defense.”). While commonly used, failure to state a claim is not an affirmative defense. UNLIKE THE …an affirmative defense: (a) “if the defendant bears the burden of proof” under state law, or (b) “if it [does] not controvert the plaintiff’s proof.” Winforge Inc. v. Coachmen Industries Inc., 691 F.3d 856, 872 (7th Cir. 2012); Maurice Sporting Goods Inc. v. BB Holdings Inc., No. 15-CV-11652, 2016 WL 2733285, at *2 (N.D. Ill., May 11, 2016) (J. St. Eve); Manley v. Boat/U.S. Inc., No. 13-CV-5551, 2016 WL 1213731, at *5 (N.D. Ill., March 29, 2016) (J. Dow);Sarkis’ Cafe Inc. v. Sarks in the Park LLC, 55 F.Supp.3d 1034, 1040–41 (N.D. Ill. 2014) (J. Lee). If either is true, the defense is an affirmative defense.

Rule 8. General Rules of Pleading

Primary tabs

(a) Claim for Relief. A pleading that states a claim for relief must contain:(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.(c) Affirmative Defenses.(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:• accord and satisfaction;• arbitration and award;• assumption of risk;• contributory negligence;• duress;• estoppel;• failure of consideration;• fraud;• illegality;• injury by fellow servant;• laches;• license;• payment;• release;• res judicata;• statute of frauds;• statute of limitations; and• waiver. (d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

Some examples

Unlike negative defenses, affirmative defenses are external to the complaint — they do not invalidate the claim for relief pleaded in the complaint.

Some examples

Case Law

Case law is court rulings that cn be used as examples to

Some examples of court rulings on affirmative or negative defenses

CASE LAW

https://casetext.com/case/torres-v-goddard-15

Torresv.Goddard

ORDER

STEPHEN McNAMEE, Chief District Judge

Before the Court is Plaintiffs’ Motion to Strike Affirmative Defenses (Dkt. 54). Having considered the parties’ arguments, the Court issues this Order.

BACKGROUND

Plaintiffs filed a four-count Complaint on October 18, 2006 (Dkt. 1), and a First Amended Complaint (“FAC”) on June 4, 2007 (Dkt. 47). Plaintiffs’ FAC pleads four causes of action under 42 U.S.C. § 1983, alleging defendants’ violations of plaintiffs’ rights under the Fourth Amendment, the Due Process Clause, the Commerce Clause and Foreign Commerce Clause. According to the FAC, Defendants have seized and converted funds belonging to Plaintiffs, pursuant to broad blanket seizure warrants unsupported by any individualized or particularized suspicion of wrongdoing. Defendants seized the funds after Plaintiffs placed them into the stream of interstate or foreign commerce, attempting to send them via wire using money transfer services offered by Western Union. The First Amended Complaint pleads these claims on behalf both of plaintiffs, individually, and others similarly situated.Defendants answered the FAC on June 21, 2007 (Dkt. 51). Defendants contend that the seizure warrants in question were lawful in all respects, and supported by probable cause. Defendants raise seventeen affirmative defenses in their Answer. Plaintiffs filed a Motion to Strike certain of those affirmative defenses (Dkt. 54), pursuant to Federal Rule of Civil Procedure 12(f). That motion is fully briefed and ready for determination. The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(3). Venue in this district is proper per 28 U.S.C. § 1391(b).

STANDARD OF REVIEW

A court “may order stricken from any pleading . . . any redundant, immaterial, impertinent, or scandalous matter.” Fed.R.Civ.P. 12(f). Motions to strike are generally regarded with disfavor, but are proper when a defense is insufficient as a matter of law. Kaiser Aluminum Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057 (5th Cir. 1982). “The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.” Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979).

DISCUSSION

Plaintiffs seek to strike affirmative defenses (f) through (q), or twelve of Defendants’ seventeen total affirmative defenses. Plaintiffs allege several deficiencies in those twelve affirmative defenses, the most common of which is failure to provide adequate notice of the factual and legal bases for the defense. Defendants respond that providing the affirmative defenses in a list format provides fair notice, given that Plaintiffs are aware of the lawsuit’s factual and legal context.The Court’s central task in deciding this motion is thus to determine whether the affirmative defenses as stated provide sufficient notice of their bases. Certain matters must be pled with particularity, including lack of capacity to sue. Fed.R.Civ.P. 9(a). The sufficiency of pleading other affirmative defenses depends on the nature of the affirmative defense. Merely naming the defense may be sufficient for some defenses, whereas others may require a brief explanation of why the defense might apply. See, e.g., Qarbon.com Inc v. eHelp Corp., 315 F.Supp.2d 1046, 1050 (N.D. Cal. 2004) (listing defenses of waiver, estoppel, and unclean hands failed to provide fair notice). With these general principles in mind, the Court will address each of the defenses individually.A. Affirmative Defense (g): Res judicata, and/or claim preclusion, and/or issue preclusionPlaintiffs believe this defense is insufficient because it fails to identify the prior proceeding that could carry a preclusive effect. Defendants respond that the defense is based on the in rem forfeiture proceedings mentioned in the Complaint, and therefore Plaintiffs “have notice of the legal proceedings which provide the basis for these affirmative defenses.” (Defs.’ Resp. at 3.) The statement of the affirmative defense must itself provide fair notice to the opposing party; it is not enough that elsewhere the pleadings indicate the basis for the affirmative defense, or that the opposing party might accurately assume that basis. See Wyshak, 607 F.2d at 827. The defenses of issue and claim preclusion are not limited to proceedings mentioned in the pleadings. See Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (claim preclusion); Diruzza v. County of Tehama, 323 F.3d 1147, 1152 (9th Cir. 2003) (issue preclusion). Even if Plaintiffs would correctly assume the prior proceedings to which Defendants allude, that still would not discharge Defendants’ obligation to provide fair notice of the basis for their affirmative defenses.As pleaded, affirmative defense (g) does not provide fair notice. Plaintiffs’ motion will therefore be granted as to this defense.

B. Affirmative Defense (h): Statute of Limitations

Plaintiffs challenge the statute of limitations defense on the basis that Defendants fail to allege why Plaintiffs’ claims are untimely. (Pls.’ Mot. to Strike at 3.) Defendants respond that the time limit for filing a claim in the forfeiture proceedings amounts to a “statute of limitations” which could bar a person’s claims in the present action. (Defs.’ Resp. at 3.) The Court finds that merely listing the statute of limitations is sufficient to provide fair notice of the basis for the defense,i.e., that Plaintiffs’ claims are time-barred.

Plaintiffs also challenge the legal sufficiency of the statute of limitations defense, asserting that the limitations period for this action is two years. (Pls.’ Mot. to Strike at 3, citing A.R.S. § 12-542 and TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999).) Plaintiffs further assert that their claims only pertain to funds seized within two years prior to the filing of this action, and therefore the statute of limitations defense fails as a matter of law. (Pls.’ Resp. at 3.) Plaintiffs cite FAC ¶ 20 as supporting their position that their claims are limited to funds seized within two years of filing this action. However, that paragraph merely states “[i]n the two years preceding the filing of this Complaint, defendant have (sic) seized over $12 million in funds from thousands of transactions attempted by plaintiffs and members of the proposed plaintiff class.” (FAC ¶ 20.) Elsewhere Plaintiffs aver that seizures began “in at least 2004.” (FAC ¶ 10.) Given this discrepancy, the fact that this is a purported class action, and that affirmative defense (h) provides fair notice, Plaintiffs’ motion will be denied as to this defense.

C. Affirmative Defense (i): Assumption of Risk

Plaintiffs challenge the assumption of risk affirmative defense as insufficiently pleaded, and as inapplicable to a § 1983 claim. Defendants respond that the “evidence in this case will show that [Plaintiffs] knew that their electronic funds transfer [would facilitate] some kind of illegal activity,” and that assumption of risk is a valid defense under certain factual circumstances. (Defs.’ Resp. at 4.) Unfortunately, Defendants failed to include that brief explanation in their Answer. The Court finds that a reference to this doctrine, without any legal or factual basis for the affirmative defense, does not provide fair notice of the defense. See Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049-50 (N.D. Cal. 2004). Defendants’ post hoc explanations do not compensate for the deficient initial pleading. Therefore the defense will be stricken.

D. Affirmative Defense (j): Estoppel

Plaintiffs argue that the simple assertion of estoppel, “with numerous possible applications requires additional specificity to satisfy the notice pleading standard.” (Pls.’ Mot. to Strike at 4, quoting Ganley v. County of San Mateo, 2007 WL 902551, *2 (N.D. Cal. March 22, 2007).) Defendants respond that Plaintiffs’ claim of ownership in the funds seized is “inconsistent with their original purpose to give the money away.” (Defs.’ Resp. at 4.) Defendants miss the thrust of Plaintiffs’ motion: that merely listing estoppel as an affirmative defense fails to provide fair notice of its basis, particularly given the numerous types of estoppel. See Black’s Law Dictionary 589-91 (8th ed. 2004). Therefore the defense will be stricken.

E. Affirmative Defense (k): Illegality

Plaintiffs claim that the Answer fails to provide fair notice of the nature of the illegality defense. (Pls.’ Mot. to Strike at 4.) Defendants respond that, as with the assumption of risk defense, Plaintiffs knew or should have known that the transferred funds were to be used for illegal activities. (Defs.’ Resp. at 5.) As with the assumption of risk defense, the Court finds that merely listing a doctrine does not provide fair notice of the nature and basis for the defense. SeeQarbon.com Inc., 315 F. Supp. 2d at 1049-50. Therefore the defense will be stricken.

F. Affirmative Defense (l): Waiver

Defendants assert that “[t]he same factual circumstances which support the defense of estoppel in this case also support the defense of waiver.” (Defs.’ Resp. at 5.) Be that as it may, those same factual circumstances are not stated in the defense itself, even if they are alleged elsewhere in the Answer. Defendants also assert that the Plaintiffs’ knowledge of the factual background of the case, combined with allegations scattered throughout the Answer, provide notice of the basis for waiver. (Defs.’ Resp. at 5-6.) Assuming that Plaintiffs could cobble together the basis in this manner, that ability would not relieve Defendants of their duty to provide fair notice. Therefore the defense will be stricken.

G. Affirmative Defense (m): Release

Relying on the same arguments set forth with regard to estoppel and waiver, Defendants assert that merely listing “release” as an affirmative defense provides fair notice. For the same reasons set forth above, these arguments are unavailing.

H. Affirmative Defense (n): Unclean Hands

Defendants rely on the same arguments as set forth regarding assumption of risk and illegality — that Plaintiffs knew or should have known of the illegal purpose for the transferred funds — as the basis for an unclean hands defense. (Defs.’ Resp. at 6.) Defendants further assert that “Defendants’ position as to the nature and purpose of the money transfers in question is well known to the Plaintiffs,” and thus the listing of “unclean hands” provided fair notice. (Id.) The Court again finds these arguments insufficient, and the defense will be stricken.

I. Affirmative Defense (o): Persons and/or entities who are not presently parties to this action were wholly or partially at fault in causing the injuries or damages complained of by Plaintiffs.

J. Affirmative Defense (p): Failure to join a party or parties under Rule 19.

K. Affirmative Defense (f): Lack of capacity and/or standing

Affirmative defense (f) asserts “[l]ack of capacity and/or standing of the named Plaintiffs to assert claims on behalf of unnamed parties, including members of the proposed plaintiff class, for the reason that the Plaintiffs cannot meet the requirements of Rule 23(a), Federal Rules of Civil Procedure.” (Answer at 9.) Plaintiffs contend that this is not an affirmative defense, but a response to the yet-to-be-filed motion for class certification. (Pls.’ Mot. at 6.) Defendants respond that while this does not “formally qualify” as an affirmative defense, other provisions in the Rules indicate it is proper to affirmatively assert these defenses in a responsive pleading. (Defs.’ Resp. at 8.) Defendants provide Rule 9(a) as an example.

Granting Defendants’ premise, this still does not save affirmative defense (f) because Defendants do not comply with Rule 9. A party raising the issue of capacity or authority to sue “must state any supporting facts that are peculiarly within the party’s knowledge,” which Defendants have not done. Fed.R.Civ.P. 9(a). Defendants’ contention that Plaintiffs must show that they would be prejudiced if the challenged material remained is not supported by any authority from within the Ninth Circuit for this contention. Therefore the defense will be stricken.

L. Affirmative Defense (q): Failure to state a claim upon which relief can be granted.

CONCLUSION

As Benjamin Franklin observed, “an ounce of prevention is worth a pound of cure.” In this case, a sentence or two in the Answer is worth a paragraph or two in response to the Motion to Strike. For the reasons given above, Plaintiffs’ Motion to Strike is granted in part and denied in part. The Court grants Defendants twenty days in which to amend their Answer to the FAC. Accordingly,IT IS HEREBY ORDERED granting Plaintiffs’ Motion to Strike affirmative defenses (f), (g), (i), (j), (k) (l), (m), and (n). (Dkt. 54.)IT IS FURTHER ORDERED denying Plaintiff’s Motion to Strike affirmative defenses (h), (o), (p), and (q). (Dkt. 54.)IT IS FURTHER ORDERED that Defendants shall have until December 21, 2007 to file an amended Answer to the First Amended Complaint. Torres v. Goddard, No. CIV 06-2482-PHX-SMM, at *1 (D. Ariz. Dec. 3, 2007)—– https://casetext.com/case/powertech-tech-inc-v-tessera-23

Powertech Tech., Inc.v.Tessera, Inc.

CLAUDIA WILKEN

ORDER GRANTING IN

PART, AND DENYING

IN PART, MOTION TO

STRIKE AFFIRMATIVE

DEFENSES

(Docket No. 112)

Plaintiff Powertech Technology, Inc. (PTI) moves to strike all of the affirmative defenses asserted by Defendant Tessera, Inc. in this action. Tessera opposes the motion. The Court took Plaintiff’s motion under submission on the papers. Having considered the papers filed by the parties, the Court GRANTS PTI’s motion in part and DENIES it in part.

BACKGROUND

PTI filed this action on March 5, 2010, seeking declarations of non-infringement and invalidity of Tessera’s United States Patent No. 5,663,106 patent (the ‘106 patent). PTI maintains that it faces an imminent threat of injury because, in the International Trade Commission (ITC) and in another district court action then pending in Texas, Tessera had accused of infringement companies who had directly or indirectly purchased products from PTI.On April 1, 2010, Tessera moved to dismiss the case for lack of subject matter jurisdiction, stating that, to its knowledge, “PTI is a licensee in good standing and it and its customers therefore enjoy protection against any suit accusing its licensed products of infringement of the ‘106 patent or any other licensed patent.” Docket No. 14 at 6. Tessera also asserted that its license with PTI “protects PTI and its customers.” Id. at 3. Tessera further argued that, because the License Agreement required PTI to pay royalties on licensed products whether or not they were covered by a licensed patent, a justiciable controversy could not exist.In June 2010, this Court dismissed the action for lack of subject matter jurisdiction, finding that there was no Article III case or controversy between the parties, because Tessera had explicitly excluded licensed products from its enforcement actions and because PTI failed to allege an actual controversy regarding the licensing agreement. Powertech Technology, Inc. v. Tessera, Inc., 2010 U.S. Dist. Lexis 53621, at *7-9 (N.D. Cal.).Several months later, on September 30, 2011, the Federal Circuit reversed this Court’s dismissal, finding that a controversy did exist between the parties. Powertech Technology, Inc. v. Tessera, Inc., 660 F.3d 1301, 1307-10 (Fed. Cir. 2011). The court specifically noted that

we have no doubt that PTI’s customers and products were specifically targeted in [the ITC and Texas actions]. For example, witnesses for Elpida testified that the accused products . . . were licensed from several licensees, including PTI. Indeed, Tessera’s infringement expert . . . focused part of his analysis on an Elpida wBGA chip that was clearly packaged by PTI and identified with a PTI model number.

Powertech, 660 F.3d at 1308 n.4. The court also stated,

In essence, Tessera’s argument is that PTI must breach its license before it can challenge the validity of the underlying patent. This contention, however, is contrary to the Supreme Court’s decision in MedImmune [Inc. v. Genentech, Inc., 549 U.S. 118 (2007)], in which the Court held that a licensee did not need to repudiate
a license agreement by refusing to pay royalties in order to have standing to declare a patent invalid, unenforceable, or not infringed. . . . Like the petitioner in MedImmune, PTI is seeking to define its rights and obligations under its contract with Tessera. It need not repudiate its license agreement to do so. There is also no provision in the license agreement in which PTI has agreed not to argue non-infringement or invalidity.

Id. at 1308 (internal citations omitted). On this basis, the court held that “the dispute between PTI and Tessera–as to whether the license agreement requires royalty payments to be tied to valid patent coverage–is sufficient to support declaratory judgment jurisdiction,” but declined to opine on the merits of the dispute. Id. at 1310. The mandate issued on January 19, 2012. Docket No. 101.

On February 17, 2012, Tessera filed its answer to PTI’s complaint and included seven affirmative defenses. The first five affirmative defenses allege that “PTI’s claims for relief against Tessera are barred, in whole or in part, by”: (1) “the doctrine of waiver”; (2) “the doctrine of estoppel”; (3) “the doctrine of laches”; (4) “the doctrine of forfeiture”; and (5) “the equitable doctrine of unclean hands.” Answer 55 31-35. The sixth affirmative defense alleges, “No justiciable controversy exists with respect to PTI’s claims for relief against Tessera.” Id. at 5 36. The seventh affirmative defense alleges, “PTI cannot assert its claims for relief against Tessera in light of the terms of the Agreement between the parties.” Id. at 5 36.PTI filed the instant motion to strike on March 12, 2012, twenty-four days after Tessera filed its answer.

DISCUSSION

I. Timeliness of PTI’s motion to strikeTessera argues that PTI’s motion to strike is untimely, because the motion was filed twenty-four days after Tessera served its answer through electronic filing.Federal Rule of Civil Procedure 12(f) states that a party may make a motion to strike a pleading for which a response is not allowed “within 21 days after being served with the pleading.” Federal Rule of Civil Procedure 6(d) provides, “When a party may or must act within a specified time after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under Rule 6(a).”Here, Tessera served its answer and affirmative defenses by electronic means pursuant to Rule 5(b)(2)(E). The Court notes that, while Rule 6(d) was created to allow additional time for the mailing of documents and is anachronistic in the context of e-filing, it technically still applies here. Accordingly, PTI was allowed three additional days beyond the twenty-one days provided for in Rule 12(f) to make its motion to strike. See Kohler v. Islands Restaurants, LP, 2012 WL 524086, at *3 (S.D. Cal.) (allowing twenty-four days for a motion to strike affirmative defenses where the answer was served electronically). Thus, PTI’s motion was timely. II. Tessera’s justiciability defensePTI argues that Tessera’s sixth affirmative defense, alleging that there is no justiciable controversy, should be struck as contrary to the law of the case.Tessera responds that, although the Federal Circuit found there was a justiciable controversy at the outset of this case, one must exist throughout the stages of this proceeding and thus Tessera may be able to challenge the continued justiciability in the future based on changed circumstances, without contradicting the law of the case.PTI replies that Tessera is continuing to maintain claims against PTI’s products in its petition for certiorari to review the ITC decision and in the Texas action, so “no relevant facts have changed.” Reply at 6. PTI contends, “Absent changed circumstances which do not exist here, there is simply no proper basis upon which Tessera can maintain this alleged defense at this time in light of the Federal Circuit’s ruling.” Id. PTI does not deny that changed circumstances may in the future impact the justiciability of this case.Because Tessera concedes that it cannot presently, under the law of the case, proffer sufficient facts to support this defense, and can only speculate about future events, the Court GRANTS PTI’s motion to strike this affirmative defense. This ruling is without prejudice to Tessera moving to amend its answer to assert this defense in the future, should facts later develop that could support it. See Dion v. Fulton Friedman & Gullace LLP, 2012 WL 160221, at *3 (N.D. Cal.) (noting that the Ninth Circuit “has liberalized the requirement that affirmative defenses be raised in a defendant’s initial pleading and allows affirmative defenses to be asserted in a later motion absent prejudice to the non-moving party” and that “Rule 15 permits Defendants to amend their Answer at any time with the Court’s leave”). III. Tessera’s license defensePTI argues that Tessera’s seventh defense, in which Tessera contends that “PTI cannot assert its claims for relief against Tessera in light of the terms of the Agreement between the parties,” lacks factual support and is contrary to the law of the case.In the context of its motion to strike the pleadings, the Court declines to consider PTI’s argument that the record lacks factual support for this defense. This is an evidentiary argument, which is more appropriate for adjudication at the summary judgment stage.The Court DENIES PTI’s motion to strike this defense as contrary to the law of the case. While the Federal Circuit noted the absence of a “provision in the license agreement in which PTI has agreed not to argue non-infringement or invalidity,” it also declined to express any view on the merits of the dispute as to whether the license agreement means either that PTI does not have to pay royalties if the chips do not infringe or the patents are invalid, or that royalty payments are due regardless of these factors. Powertech, 660 F.3d at 1308-10. Thus, it would not contradict the Federal Circuit’s decision to find ultimately that the license agreement provides Tessera with a defense.IV. Tessera’s first through fifth affirmative defensesPTI argues that Tessera has not adequately plead the factual basis for its remaining affirmative defenses under the standards set forth in the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).Rule 8 requires that, when “responding to a pleading, a party must . . . state in short and plain terms its defenses to each claim asserted against it.” Federal Rule of Civil Procedure 8(b). Rule 12(f) provides that, on its own or on a motion from a party, a “court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Federal Rule of Civil Procedure 12(f). “The purposes of a Rule 12(f) motion is to avoid spending time and money litigating spurious issues.” Barnes v. AT&T Pension Benefit Plan–Nonbargained Program, 718 F. Supp. 2d 1167 (N.D. Cal. 2010)(citing Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993)). If a defense is struck, “[i]n the absence of prejudice to the opposing party, leave to amend should be freely given.” Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979).”The Ninth Circuit has long held that ‘[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.'” Perez v. Gordon & Wong Law Group, P.C., 2012 WL 1029425, at *6 (N.D. Cal.)(quoting Wyshak, 607 F.2d at 827). Since the Supreme Court’s decisions in Twombly and Iqbal, requiring that plaintiffs meet a plausibility standard in their pleadings, courts have been considering whether these decisions also “redefine[] what constitutes ‘fair notice’ of an affirmative defense pled in an answer.” Id.As both parties acknowledge, neither the Ninth Circuit nor the Supreme Court has directly addressed this question. While district courts have split on the issue, most have found that the heightened pleading standard does apply to affirmative defenses. See, e.g., Perez, 2012 WL 1029425, at *8 (collecting cases); Barnes, 718 F. Supp. 2d at 1171 (collecting cases); Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649-50 (D. Kan. 2009)(collecting cases). Within the Northern District of California, it appears that the judges who have decided the issue thus far have uniformly found that the Twombly and Iqbal standard does apply to affirmative defenses. See Perez, 2012 WL 1029425, at *6-8 (Koh, J.); Barnes & Noble, Inc. v. LSI Corp., 2012 WL 359713, at *2 (N.D. Cal.) (Chen, J.); Bottoni v. Sallie Mae, Inc., 2011 WL 3678878, at *2 (N.D. Cal.) (Beeler, M.J.); Dion, 2012 WL 160221, at *2 (Conti, J.); J & J Sports Productions, Inc. v. Mendoza-Govan, 2011 WL 1544886, at *1 (N.D. Cal.) (Alsup, J.); Barnes, 718 F. Supp. 2d at 1171-72 (Patel, J.).As other judges in the Northern District of California have already explained, Twombly and Iqbal changed the legal foundation underlying the Ninth Circuit’s Wyshak decision, and the reasoning in those decisions also applies in the context of affirmative defenses. “At the time Wyshak was decided, the fair notice pleading standard was governed by Conley v. Gibson, 355 U.S. 41(1957), which held that ‘a complaint [could] not be dismissed for failure to state a claim unless it appear[ed] beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.'” Perez, 2012 WL 1029425, at *6. “In Wyshak, the Ninth Circuit applied the Conley pleading standard for complaints to the pleading of affirmative defenses.” Id. “However, the Supreme Court’s Twombly and Iqbal decisions in 2007 and 2009, respectively, departed from Conley and redefined the pleading requirements under Rule 8.” Id. “Courts have observed that ‘Rule 8’s requirements with respect to pleading defenses in an answer parallel the Rule’s requirements for pleading claims in a complaint,'” id. (quoting Barnes, 718 F. Supp. 2d at 1172), and “this parallelism appears to be the very reason the Ninth Circuit applied Conley to the pleading of affirmative defenses in Wyshak,” id. (citing Wyshak, 607 F.2d at 827). Especially in light of the fact that the defendant bears the burden of proof on an affirmative defense, as the plaintiff does on a claim for relief, “‘Twombly‘s rationale of giving fair notice to the opposing party would seem to apply as well to affirmative defenses given the purpose of Rule 8(b)’s requirements for defenses.'” Barnes & Noble, Inc., 2012 WL 359713, at *2.Thus, this Court agrees with the other judges in this district that the heightened pleading standard set forth in Twombly and Iqbal also applies to affirmative defenses. (go online to get citing) Because Defendant’s affirmative defenses include only conclusory allegations, without providing any information about the grounds upon which the defenses rest, it has insufficiently plead these defenses as required to provide fair notice under either standard. See Yates v. Perko’s Cafe, 2011 WL 2580640, at *3 (N.D. Cal.) (“An insufficiently pled defense fails to comply with Rule 8 pleading requirements by not providing ‘plaintiff fair notice of the nature of the defense’ and the grounds upon which it rests.”) (citing Wyshak, 607 F.2d at 827). Thus, the Court GRANTS PTI’s motion to dismiss Tessera’s first five affirmative defenses. Tessera is granted leave to amend to plead these defenses with greater specificity.PTI also argues that the fifth affirmative defense, which is based on unclean hands, should be dismissed as failing to meet the requirements of Rule 9(b), to the extent that it is predicated on conduct that involves fraud or mistake. Tessera responds that it does not predicate this defense on fraud or mistake and thus Rule 9(b) is not relevant. In amending its fifth affirmative defense to satisfy the requirements of Rule 8, if Tessera bases this defense on conduct involving fraud or mistake, it must also satisfy Rule 9(b).

CONCLUSION

For the reasons set forth above, the Court GRANTS in part, and DENIES in part, PTI’s motion to strike Tessera’s affirmative defenses (Docket No. 112). Tessera is granted leave to file an amended answer to plead properly its first five affirmative defenses, which are stricken, within two weeks of the date of this Order, if it can truthfully do so. Tessera’s sixth affirmative defense is stricken without prejudice. PTI’s motion to strike is denied as to the seventh affirmative defense.IT IS SO ORDERED.Powertech Tech., Inc. v. Tessera, Inc., No. C 10-945 CW, at *1 (N.D. Cal. May. 16, 2012)

District Court jurisdiction over state issues:

FROM:https://saylordotorg.github.io/text_legal-aspects-of-marketing-and-sales/s06-01-the-relationship-between-state.html

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Answer

Answer and Counterclaim 1 claim

Sample Answer and Counterclaim

COMMONWEALTH OF MASSACHUSETTS

ESSEX, SS.

SUPERIOR COURT

DOCKET NO: 14-487D

Robert M.A. Nadeau

Plaintiff,

Nancy Madore

Defendant,

ANSWER TO COMPLAINT FOR EXPEDITED RELIEF TO COMPEL DEPOSITION TESTIMONY OF A MASSACHUSETTS RESIDENT AND COUNTERCLAIM FOR SANCTIONS

NOW COMES the Defendant, Nancy Madore, without counsel, and

answers Plaintiff’s complaint as follows:

1. Unknown.

2. Unknown.

3. Unknown.

4. Denied.

5. Denied.

6. Denied.

7. Denied.

8. Denied.

9. Denied.

10.Denied.

11.Denied.

12.Unknown.

13.Not applicable.

DEFENDANT’S COUNTERCLAIM FOR SANCTIONS

In addition to the aforementioned responses, Defendant makes the following assertions:

1. The Plaintiff, Robert M.A. Nadeau, has in the past, and continues to use his law license and all the trusts that come with it, to terrorize people.

2. The Plaintiff, Robert M.A. Nadeau, has been a party in well over twenty lawsuits in the last decade.

3. The Plaintiff, Robert M.A. Nadeau, has already sued the Defendant twice. The claims in both lawsuits were withdrawn before trial, but only after a grueling, expensive, drawn out and extremely abusive litigation process.

4. The only purpose served in the above referenced litigations against the Defendant, was that the Plaintiff was able to use those litigations to harass the Defendant, the Defendant’s family, and the Defendant’s friend. This failure to produce a legitimate case while harassing his victims was noticed by a judge in yet another of the Plaintiff’s litigations, who stated in his final order: “No credible evidence was produced by the Plaintiff [Nadeau] to explain how [his evidence] was anything other his harassing [the Defendant in that case].” (see Robert M.A. Nadeau vs. XXX, York District Court, PA-13-185).

5. In fact, Judge Dreschler, of this Court, also noticed the abusive, harassing nature of Nadeau’s litigation against the Defendant in his previous litigation against her when, in particular he singled out Nadeau’s sending monthly bills to the Defendant for that very same litigation he was pursuing against her, during the litigation, calling his behavior ‘outrageous and unacceptable.’ (see Robert M.A. Nadeau vs. Nancy Madore, ESCV2014-00487-D, Dec 3, 2014 order).

6. These are not isolated incidents. Other judges, in other cases, have also remarked upon Nadeau’s abusive litigation tactics (although no one ever actually does anything about it). One judge was particularly thorough in describing the abuse in his final order (see Robert M.A. Nadeau et el, v. Hunt, York Superior Court, CV-05-221). This pattern of behavior will continue until the Court addresses it.

7. In all of these cases, Nadeau’s lawsuits, or the bulk of his claims, were either thrown out or withdrawn before trial.

8. In all of these cases, the Plaintiff makes wild accusations without ever offering a shred of evidence, always promising that the evidence will be revealed at a later date, and always failing to provide the promised evidence.

9. In all of these cases, the various Courts trust the Plaintiff, based on his position as a lawyer.

10.These frivolous lawsuits, and the illegal misconduct that accompanies them, is now actively being investigated by the Massachusetts BBO.

11.The Plaintiff’s latest lawsuit against [Defendant in Maine, in case Nadeau is seeking this deposition for] is clearly more of the same. The most obvious flaw in the Plaintiff’s case is that the Plaintiff is suing for damages caused by signs that he alleges (again, without evidence) to be illegal, and even more inconceivably, to have caused his loss of the election, despite the fact that the Plaintiff was in the local news every other week, being cited for his numerous violations of the judicial codes, and for his misconduct as an attorney. In fact, long before the election, in the Plaintiff’s second lawsuit against this Defendant, he had been claiming that the Defendant had caused a ‘serious and irreparable decline’ to his law firm, which indicates this turn in public opinion long before [his current defendant in Maine] put the ‘no Nadeau’ signs out on his own property.

12.The frivolousness of the Plaintiff’s lawsuit against [the Maine Defendant] and this complaint to depose the Defendant is further underscored by the Plaintiff’s claims regarding the deposition of the Defendant, all of which the Defendant denies, and all of which the Plaintiff has once again failed to provide a single shred of evidence to support.

13.The motives for both the lawsuit against [his Maine defendant] and this complaint for a deposition against the Defendant are clear: [the Maine Defendant] is the son of [the woman], who [works in the] Court where the Plaintiff used to be a judge. At one point [the woman] reported misconduct she witnessed from the Plaintiff. Since then, he has actively harassed her. In fact, it was his behavior, not hers or her sons, during the last election, which was unethical and unprofessional. And here again, the Plaintiff has been cited for his unethical and illegal behavior during the election process before, and was even given a 30 day suspension for doing it in a previous election. (see Maine Supreme Judicial Court Decision, JUD-05-01)

14.The Defendant has never met, or spoken to, [the Maine Defendant]. She has spoken to his mother, [the woman who worked with Nadeau], on several occasions. The activities that the Plaintiff describes in his complaint simply did not occur (incidentally, the activities the Plaintiff fabricated do not represent misconduct or illegal behavior in any event). Once again, all of the Plaintiff’s allegations are vague and unfounded, and offered without the slightest bit of evidence.

15.It is noteworthy that the Plaintiff represents himself in these litigations, so that it is his victims, not himself, who have to pay the cost of his abusive litigation techniques.

16.The Plaintiff is a seasoned attorney and has also served as a part time elected judge. Therefore, he knows, or should know, that any claims he makes in his pleadings should be truthful. He also knows, or should know, that his requests during discovery should be based on truths. He cannot prove any of his claims against the Defendant in his Complaint with this Court, because none of them are true. Yet he is expecting that this Court will trust him, as a seasoned lawyer and former judge, just as the courts always do, to be acting on facts and in good faith.

17.Given the abusive, litigious and dishonest history of this Plaintiff, along with the numerous citations from judicial and other disciplinary boards, and the recent ongoing investigation with the Massachusetts BBO, it would be extremely remiss of this Court to trust this Plaintiff and give him the benefit of the doubt, at the risk of him further harming this Defendant.

18.Given the abusive, litigious and dishonest history of this Plaintiff, along with the numerous citations from judicial and other disciplinary boards, and the recent ongoing investigation with the Massachusetts BBO, it would be an act of injustice to order this Defendant to attend yet another deposition to answer what almost always amounts to unrelated but very personal questions to provide the Plaintiff with information he can use against his deponents outside the scope of the litigation, which is not how the lawmakers intended the discovery process to be used, but it is how this Plaintiff has used the process in every single litigation the Defendant has been forced to participate in.

19.Regardless of this Court’s ruling on this matter, the Defendant has yet again been forced to respond to yet another unfounded claim from this Plaintiff. At some point, the Court must protect this Defendant’s civil rights against what is clearly harassment from this Plaintiff.

WHEREFORE THE DEFENDANT, Nancy Madore, requests the following relief:

1. That the Court deny the Plaintiff’s Complaint against the Defendant, if not on the basis of the Plaintiff’s past abusive history and his harassment of this Defendant, then based on the fact that the claims in the Plaintiff’s Complaint, even if true, would not merit the inconvenience of having this Defendant travel out of state to attend a deposition on such vague and flimsy claims (ie., how, specifically, were the signs [his Maine Defendant] supposedly put in his yard ‘illegal’?).

2. That if the Court grants the Plaintiff’s Complaint against the Defendant, that it order the Plaintiff to put his questions in writing, and submit them for approval from this Court before submitting them to the Defendant; and that the Court permit the Defendant to answer in writing as well.

3. That the Court Sanction the Plaintiff on two counts: first, for the Defendant, for the time involved in having to answer yet another Complaint that was submitted to this Court without any evidence to support it—especially in light of his most recent litigation against her in this same Court, which ended on April 2017, when the Plaintiff submitted a Motion to Dismiss his own case on the morning of trial; and second, a sanction for the Court, for the time involved in reading his complaint and this answer, and scheduling a hearing and/or issuing an order.

4. Any and all other relief this Court deems just.

DEFENDANT

_________________________________________________ _____________________

Nancy Madore Date

[Address]

[Phone]

Certificate of Service

I, Nancy Madore, certify that I caused a copy of the foregoing document to be mailed to the Plaintiff, Robert M.A., at his latest known address, as identified in his Complaint, on the date indicated above.

_____________________________

Nancy Madore

Tagged answering a complaint, failure to state a claim, lawsuit defenses, legal defenses

One Response

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Affirmative Defenses

Accord and Satisfaction

Case Law

Jaffray v. Davis, 124 N.Y. 164

Burke Co. v. Hilton Dev. Co., 802 F.Supp. 434 (N.D.Fla. 1992)

Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex. 1969)

Martinez v. Bayshore, 979 So. 2d 1023, 1024 (Fla. Dist. Ct. App. 2008), quoting Burke Co. v. Hilton Dev. Co., 802 F.Supp. 439 (N.D.Fla. 1992)

Gilreath v. Sentry Ins. Co., 38 Conn. Sup. 423, 450 A.2d 873 (1982)

Hanley Co. v. American Cement Co., 108 Conn. 473, 143 A. 566 (1928)

Act of God

Case Law

Bills of Lading, 52 I.C.C. 671, 679; Chesapeake O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 421-423

Galveston, H. S. A. R. Co. v. Wallace, 223 U.S. 481, 492; Chicago E. I. R. Co. v. Collins Co., 249 U.S. 186, 191; Chesapeake O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 420-423; Thompson v. James McCarrick Co., 205 F.2d 897, 900

Arbitration and Award

Assumption of Risk

Case Law

Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049-50 (N.D. Cal. 2004)

Benjamin v. Deffet Rentals (1981), 66 Ohio St.2d 86, 89 [20 O.O.3d 71]; Wever v. Hicks (1967), 11 Ohio St.2d 230, 234 [40 O.O.2d 203]. See, also, Briere v. Lathrop Co. (1970), 22 Ohio St.2d 166 [51 O.O.2d 232]

Claim Preclusion

Contributory Negligence

Case Law

Boughton v. Proulx, 880 A.2d 388, 396 (N.H. 2005)

Discharge in Bankruptcy

Duress

Estoppel

Case Law

Pls.’ Mot. to Strike at 4, quoting Ganley v. County of San Mateo, 2007 WL 902551, *2 (N.D. Cal. March 22, 2007)

See Black’s Law Dictionary 589-91 (8th ed. 2004)

Executive Power

Failure of Consideration

Failure to State a Claim

Case Law

Fraud

Illegality

Case Law

Qarbon.com Inc. v. eHelp Corp., 315 F. Supp. 2d at 1049-50

Individual Capacity

Injury by Fellow Servant

Intervening Act

Intoxication

Issue Preclusion

Jurisdiction

Case Law

Justiciability

Case Law

Maryland Casualty Co. v. Pacific Coal & Oil Co.,312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826

Altvater v. Freeman, 319 U.S. 359, 364, 63 S.Ct. 1115, 87 L.Ed. 1450

Laches

Lack of Capacity/Standing

Case Law

Fed.R.Civ.P. 9(a)

License

Mental Illness

Misnomer

Case Law

[Va. Code Ann. § 8.01-6]

Mistake of Fact

Payment

Proximate Cause

Release

Res judicata

Case Law

Wyshak v City National Bank, 607 F.2d at 827

Tahoe Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003) (claim preclusion) and Diruzza v. County of Tehama, 323 F.3d 1147, 1152 (9th Cir. 2003) (issue preclusion)

Statute of Frauds

Statute of Limitations

Case Law

Conley v. Gibson,355 U.S. 41, 47-48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); 5 Wright Miller Federal Practice and Procedure, § 1274 at 323.” QUOTED FROM Wyshak v. City Nat. Bank, 607 F.2d 824, 827 (9th Cir. 1979)

Horton v. Carolina Medicorp., Inc., 344N.C. 133, 136, 472 S.E.2d 778, 780 (1996)

Byrne v. Autohaus on Edens, Inc., 488 F. Supp. 276, 280 (N.D.Ill. 1980)

Lukenas v. Bryce’s Mountain Resort, Inc., 538 F.2d 594 (4th Cir. 1976); Clift v. UAW, 818 F.2d 623 (7th Cir.1987)

Unclean Hands

Case Law

Waiver

I. Affirmative Defense (o): Persons and/or entities who are not presently parties to this action were wholly or partially at fault in causing the injuries or damages complained of by Plaintiffs.

Same case:

J. Affirmative Defense (p): Failure to join a party or parties under Rule 19

Case Law

Rule 8. General Rules of Pleading

Primary tabs

Horton v. Carolina Medicorp., Inc., 344
N.C. 133, 136, 472 S.E.2d 778, 780 (1996)