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?


  1. What' an affirmative defense exactly?

  2. It's "pleaded," "neither ... nor," and "struck," not "stricken."

    Moving on, to the extent that the court is ruling that you can't raise as an affirmative defense the failure to state a claim upon which relief may be granted, I disagree. In essence, an affirmative defense means that even if you've established all your allegations, the law doesn't provide you a remedy. In short, Yes, but so what? The defense of failure to state a claim falls within that definition.

    (Here, the court already ruled that the complaint stated a claim, so this situation does differ slightly. That being said, does that ruling constitute a legally sufficient reason to strike the affirmative defense? I'm not so sure. True, SFL, listing a hodgepodge of affirmative defenses isn't smart either; but that's because doing so is poor strategy.)

  3. Sorry you lost your affirmative defense 11:59!

  4. My understanding is that you cannot raise as an affirmative defense a failure to state a cause of action (or failure to state a claim) based on an argument you previously lost on a motion to dismiss. Judge Jordan wrist-slapped us us once for doing that.

    As for throwing 20 defenses against the wall to see what sticks, such is the stuff for dirtbags.

  5. The link to the order does not work.

  6. Should have styled it affirmative and other defenses?


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