Defense Counsel Journal - International Association of Defense ...

Page 440 DEFENSE COUNSEL JOURNAL–October 2012affirmative defenses “is not intended tobe exhaustive.” 16“Affirmative defenses plead mattersextraneous to the plaintiff's prima faciecase, which deny plaintiff's right torecover, even if the allegations of thecomplaint are true.” 17 The burden ofproving an affirmative defense rests withthe party asserting it. 18 Such a defensemust be proven by a preponderance ofcredible evidence. 19 If proven by apreponderance of the evidence, “[a]naffirmative defense will defeat theplaintiff’s claim.” 20 Federal courts haveconsistently held that the failure by adefendant to plead an affirmative defensein their answer generally results in waiverand exclusion from the action. 21Rule 12(f) of the Federal Rules ofCivil Procedure permits a party, or thecourt acting sua sponte, to “strike from apleading an insufficient defense or anyredundant, immaterial, impertinent, orscandalous matter.” This provides amechanism to “‘clean up the pleadings,of limitations; and waiver.” FED.R.CIV.P.8(c)(1).16 5 CHARLES ALLEN WRIGHT AND ARTHUR R.MILLER, FEDERAL PRACTICE AND PROCEDURE,§ 1271 (3d ed. 2011).17 Fed. Deposit Ins. Corp. v. Main Hurdman,655 F. Supp. 259, 262 (E.D. Cal. 1987).18 Jones v. Taber, 648 F.2d 1201, 1203 (9thCir. 1981).19 Martin v. Weaver, 666 F.2d 1013, 1019 (6thCir. 1981).20 5 WRIGHT AND MILLER, supra note 17, at §1270.21 See, e.g., FDIC v. Ramirez Rivera, 869 F.2d624, 626 (1st Cir. 1989); Ingraham v. U.S.,808 F.2d 1075, 1078 (5th Cir. 1987);Stephenson v. Davenport Community SchoolDist., 110 F.3d 1303, 1305 n. 3 (8th Cir.1997).streamline litigation, and avoidunnecessary forays into immaterialmatters.’” 22III. Traditional Standard of ReviewTraditionally, courts appliedConley’s “no set of facts” standard topleadings that were challenged by a Rule12(b)(6) or Rule 12(f) motion. Under thatstandard, an affirmative defense was heldvalid as long as it provided “fair notice”to the plaintiff of the defense. 23 Thus, anaffirmative defense was generallyimmune from a motion to strike “unless itappear[ed] with certainty that plaintiffswould succeed despite any state of factswhich could be proved in support of thedefenses.” 24Even when there were no disputedquestions of fact or law, courts often werereluctant to strike an affirmative defensefrom an action when no discovery yet hadtaken place. As the First Circuit Court ofAppeals noted in Salcer, “even when thedefense presents a purely legal question,the courts are very reluctant to determinedisputed or substantial issues of law on amotion to strike; these questions quite22Sun Microsytems, Inc. v. VersataEnterprises, Inc., 630 F. Supp.2d 395, 402 (D.Del. 2009) (quoting McInerney v. MoyerLumber & Hardware, Inc., 244 F. Supp.2d393, 402 (E.D. Pa. 2002)).23 See Lawrence v. Chabot, 182 Fed. Appx.442, 456 (6th Cir. 2006); see also Clem v.Corbeau, 98 Fed. Appx. 197, 203 (4th Cir.2004).24 See William Z. Salcer, Panfeld, Edelman v.Envicon Equities Corp., 744 F.2d 935, 939 (2dCir. 1984), vacated on other grounds, 478 U.S.1015, 106 S.Ct. 3324, 92 L.Ed.2d 731; seealso Tyco Fire Products LP v. Victaulic Co.,777 F. Supp.2d 893, 897 (E.D. Pa. 2011).