I Hate Lame Affirmative Defenses.

Don't you just love it when a two-count complaint or single counterclaim somehow engenders an answer containing 58 affirmative defenses?

I don't know about you, but my eyes glaze over as you waste time reviewing pointless and rote affirmative defenses that are clearly so general as to be meaningless or merely restate or "reserve" arguments and defenses that aren't ripe or have no applicability to the facts at hand.

Generally I ignore them and, at the appropriate time, ask the Court to ignore them as well.

But if push comes to shove it's nice to see a judge "get" it:

The Court's order denying the motion to dismiss also found that Plaintiff had sufficiently pled her claim to survive a motion to dismiss. Affirmative Defense 19 essentially argues that Plaintiff has not adequately pled her claim, despite the Court's prior ruling. Furthermore, Affirmative Defense 19 is neither an affirmative defense or a specific denial of any of Plaintiffs allegations. Lastly, because Defendant cannot amend its pleadings without leave of Court, its reservation of rights is meaningless. Accordingly, Affirmative Defense 19 is stricken.

Question -- how much did an associate bill and/or partner review to file this defense?

What is "Good Cause" For Filing Untimely Affirmative Defenses?

 
Come on -- you know that is the first thing on your mind this morning.

Luckily, Judge Scola provides the answer:

In order to raise the two new defenses, then, Commonwealth must demonstrate “good cause” for leave to amend under Rule 16(b), which requires a showing of diligence. See Sosa, 133 F.3d at 1418. As to the mitigation affirmative defense, Commonwealth contends that leave to amend should be allowed because the defense was not available until June 4, 2012, when Regions declined Commonwealth’s April 17, 2012 offer to defend and provide coverage under a reservation of rights. This Court disagrees. Commonwealth’s duty to defend and indemnify Regions in the state court suit goes to the heart of this litigation. Under such circumstances, a failure to mitigate defense should have been reasonably obvious to Commonwealth the minute that Regions declined its offer, if not before that time. Indeed, it might have been a reasonably anticipatory defense even as early as April, when Commonwealth tendered the offer. Yet, Commonwealth waited an additional three-and-a-half months after Regions refused the offer before requesting leave to amend. Such conduct does not evince diligence.

The idea that a defense is a pure "legal defense" also doesn't wash:

 As to the contract illegality affirmative defense, Commonwealth merely argues that it should be allowed to amend because it is “a pure legal defense.” Mot. at 6. But to admit as much dooms Commonwealth’s request. Commonwealth does not even attempt to explain why it did not knowabout, or assert, this defense from the get-go. As “a purely legal defense,” Commonwealth could be expected to assert it at the time it originally answered Regions’s Complaint in April, not some five months later. So the Court finds that here, too, Commonwealth has failed to show the diligence required by Rule 16(b).

Oh well -- hope you didn't really need these defenses to defend the case.

Your SD FL Affirmative Defense Class is Back in Session!

 
Continuing our series of instructive orders from SD FL judges on affirmative defenses, here is one by Judge Marra granting partial summary judgment on a few truly lame-o ones.

Yes, kids, you can move for summary judgment on affirmative defenses:

Defendant’s First Affirmative Defense states: “Defendant would show unto the Court that at the approximate times and places alleged, the Plaintiff was guilty of negligence materially and proximately contributing to the accidents and/or the injuries complained of and any recovery by the Plaintiff is diminished or extinguished thereby.” In support of her motion for summary judgment relative to this defense, Plaintiff has provided evidence that she was stopped when she was rear-ended [DE 53-1, p. 33]. Plaintiff also noted that the Defendant did not address this affirmative defense in its answers to interrogatories [DE 53-2, No. 6]. At the deposition of the Defendant, the corporate designee refused to answer questions relative to this affirmative defense [DE 39, pp. 67-68]. Plaintiff thus discharged her burden to demonstrate to this Court that there is an absence of evidence to support the Defendant’s First Affirmative Defense. See Celotex Corp., 477 U.S. at 325.

The burden of presenting evidence in support of its First Affirmative Defense thus shifted to the Defendant. Defendant concedes in its Response to Plaintiff’s Motion for Partial Summary Judgment that “at this time there is no evidence to suggest that RIOS was negligent in causing the accident” [DE 54, pg. 2], and withdraws that portion of its affirmative defense. Defendant continues to state:

However, STATE FARM maintains, as is part of its First Affirmative Defense that RIOS’ actions did contribute to her injuries complained of and therefore any recovery by RIOS is diminished or extinguished thereby. STATE FARM continues to contest that accident on July 13, 2008 was the cause of RIOS’ alleged injuries. Further, as made evident in STATE FARM’S Motion for Final Summary Judgment, RIOS’ actions prejudiced STATE FARM’S ability to fully evaluate her claims. . . [T]he only issue left relating to RIOS’ Motion for Partial Summary Judgment would be whether or not SANDRA RIOS was a proximate cause to the injuries complained of, in which there exists a genuine issue of material fact, which can be seen in the pleadings alone.

[DE 54, pg. 2]. Defendant cites no evidence whatsoever in support of this argument, and has, therefore, failed to meet its burden. Plaintiff’s motion as to Defendant’s First Affirmative Defense will be granted.

See how that works?

Note to litigants -- if you have more than ten affirmative defenses, you probably have two or three more than you really need.

Judge Moore: Your Affirmative Defenses Are Actually Two Other, Separate Lawsuits.

Continuing our review of recent SD FL opinions on motions to strike affirmative defenses, in walks Judge Moore who strikes two defenses in an FLSA action because the defenses are actually two other pending lawsuits against the plaintiff in disguise:

Here, Defendant's Third and Seventh Affirmative Defenses do not allege an overpayment of wages to Plaintiff, but instead request set-offs due to Plaintiff s alleged theft and destruction of business records. The requested set-offs would force the Court to address the factual circumstances of numerous other claims unrelated whether Plaintiff was adequately compensated according to minimum wage and overtime standards and would "clutter these proceedings with the minutiae of other employer-employee relationships.'' Brerman, 491 F.2d at 4.

Moreover, any set-off applied to a recovery by Plaintiff would result in Plaintiff failing to receive his "cash in hand.'' Id. Plaintiff alleges he is owed $15,445.31 in unpaid overtime plus $2,305.27 for a two week time period in which he claims he was not paid at all. Pl's Statement of Claim (ECF No. 7). Defendant has already filed a lawsuit against Plaintiff in Florida state court for misappropriation of trade secrets, breach of a confidential relationship, constructive fraud, slander, and libel. See Applied Concepts Unlemshed. Inc. v. Matthews, No. 1 1-674-CA (Fla. Cir. Ct. 2012).  Defendant has also filed a lawsuit against Plaintiff in this Court for copyright infringement, computer fraud and abuse, breach of emploment agreement and civil theft. See Axmlied Concepts Unleuhed. Inc. v. Matthews, No. 12-CV-14035-DLG (S.D. Fla. 2012).  In each of these lawsuits Defendant seeks damages in excess of the amount of damages Plaintiff alleges he is owed in the instant action. Therefore, were Defendant to prevail on its Third and Seventh Affirmative Defenses, Plaintiffs judgment might be reduced below the minimum wage level. Accordingly, Defendant's Third and Seventh Affirmative Defenses are inappropriate in this action.

Guess that's what the other lawsuits are for?

Magistrate Judge Goodman on Affirmative Defenses!

Not everybody finds Magistrate Judge Goodman's orders to their personal liking, but when he cuts the verbiage and tones down the shtick (hey, that's what we're here for!) he can be very clear and convincing.

Here he is explaining that you can't just boilerplate asinine, barely-literate affirmative defenses and expect to get away with it in his courtroom:

This is because none of the alleged affirmative defenses contain factual allegations of any kind. Instead, the alleged affirmative defenses contain only bare legal conclusions.

For example. the ninth (waiver). eleventh (duress), twelfth (estoppel). thirteenth (illegality) and fifteenth (unclean hands) defenses are especially vague and fact-free.

Plaintiff would have no idea what type of scenario Defendant is referring to when asserting these defenses. How did Plaintiff purportedly waive its claims? Why are the claims subject to estoppel? What type of illegality precludes recovery? Defendant does not say. Nothing in the affirmative defenses even hints at the general category of event which supposedly generates the purported defenses, let alone a summary of the specific facts.

Other defenses, while not quite as nebulous, are also impermissibly vague and conclusory.  For example, affirmative defense number three alleges "Defendant fully discharged his duty to the Plaintiff by making payments to Plaintiff." This Court assumes that counsel conducted "an inquiry reasonable under the circumstances," Fed. R. Civ. P. 11 (b), before alleging this defense. Defendant therefore should have been able to allege at least some details regarding the amount of any payment, the date of any payment, and/or the method of any payment. But Defendant did not and its failure to do so renders the affirmative defense insufficient.

By way of further example, in affirmative defense number one, Defendant states that it is adopting and incorporating certain contractual defenses by reference. Defendant, however, not only does not identify any specific contractual defenses or what agreement gave rise to these defenses, but Defendant also suggests the agreement may not even exist -because it qualifies this defense by cryptically referring to "the agreement(s), if any." [ECF No. 27, p. 3 (emphasis added)]. At bottom, this purported affirmative defense is nothing more than a recitation of the legal principal that a party's legal relationship can be detailed and regulated by a contract.

In sum this is a nice primer on how to plead affirmative defenses in federal court.

Twombly/Iqbal Applies to Affirmative Defenses!

What's good for the goose and fool the gander once and all that, says Magistrate Judge O'Sullivan:

An affirmative defense may be stricken if it fails to satisfy the pleading requirements of Rule 8 and Twombly. See Twombly at 1362. The defendant has failed to satisfy the pleading requirements of Rule 8 and Twombly in this matter because the defenses merely states conclusions. Accordingly, the plaintiffs’ motion is granted....

BTW, the Notice Pleading Restoration Act appears dead in the water.