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.


  1. This is a much better order than the one who authored in that automobile case where he made those silly BB King references.

    When I tried to click on the link to the order itself, however, it said that the file was damaged. Can you try reposting the pdf or referencing the case number in your post please? It's good to keep these orders handy because they do not always pop up on WL or Lexis. Thanks and great post!

  2. Not sure what happened with RECAP, but I Scribed it, so the link should work.


  3. Well, this is a tough one because the poor lady seems like she got duped but really does she need to bring lawyers and a suit against Bank of America?

  4. SFL, you should have a poll on the utility of filing motions to strike affirmative defenses.

  5. Yes, good idea. I rarely move to strike them, that gives them more credit than they usually deserve.

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