affimative defenses

10 Apr

DO NOT PLEAD A LAUNDRY LIST. The vast majority of these affirmative defenses will not apply to any given case–they are intended as a brainstorming tool, and certainly should not be included in full. Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.

List of Affirmative Defenses (Partial):
23458820– failure to state a claim upon which relief may be granted (almost always use)
– statutory defenses prerequisites (these will vary depending on the claims)
– preemption by federal or other law
– accord and satisfaction
– arbitration and award
– assumption of risk
– economic loss rule
– contributory or comparative negligence
– intervening cause
– supervening cause
– claimants own conduct, or by the conduct of its agents, representatives, and consultants
– discharge in bankruptcy
– duress
– estoppel
– recoupment
– cardinal change
– set off
– failure of consideration
– fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
– fraud in the inducement
– illegality
– injury by fellow servant
– borrowed servant
– laches
– license
– payment
– release
– res judicata
– statute of frauds
– statute of limitations
– waiver
– unclean hands
– no adequate remedy at law
– failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
– rejection of goods
– revocation of acceptance of goods
– conditions precedent
– discharge
– failing to plead fraud with particularity
– no reliance
– attorneys’ fees award not permissible
– punitive damages not permissible
– lack of standing
– sole negligence of co-defendant
– offset
– collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
– improper service
– failure to serve
– indemnity
– lack of consent
– mistake
– undue influence
– unconscionability
– adhesion
– contrary to public policy
– restraint of trade
– novation
– ratification
– alteration of product
– misuse of product
– charitable immunity
– misnomer of parties
– failure to exhaust administrative remedies
– frustration of purpose
– impossibility
– preemption
– prior pending action
– improper venue
– failure to join an indispensable party
– no private right of action
– justification
– necessity
– execution of public duty
– breach by plaintiff
– failure of condition precedent
– anticipatory repudiation
– improper notice of breach
– breach of express warranty
– breach of implied warranty
– parol evidence rule
– unjust enrichment
– prevention of performance
– lack of privity
– merger doctrine
– learned intermediary or sophisticated user doctrine
– adequate warning
– no evidence that modified warning would have been followed or would have prevented injury
– manufacturing/labeling/marketing in conformity with the state of the art at the time
– release
– res judicata
– assumption of the risk
– product was unavoidably unsafe
– product provides net benefits for a class of patients
– spoliation
– damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant’s conduct
– lack of causal relationship
– act of god (or peril of the sea in admiralty cases)
– force majeure
– usury
– failure to act in a commercially reasonable manner
– acquiescence
– doctrine of primary or exclusive jurisdiction
– exemption
– failure to preserve confidentiality (in a privacy action)
– filed rate doctrine
– good faith
– prior pending action
– sovereign immunity
– truth (in defamation actions)
– suicide (in accident or some benefits actions)
– adverse possession (in trespass action)
– mutual acquiescence in boundary (in trespass action)
– statutory immunity (under applicable state or federal law)
– unconstitutional (relating to statute allegedly violated)
– insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
– self-defense (in assault, battery, trespass actions)
– permission/invitation (in assault, battery, trespass actions)
– agency
– Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
– at-will employment
– breach of contract
– hindrance of contract
– cancellation of contract/resignation
– circuitry of action
– discharge (other than bankruptcy)
– election of parties
– election of remedies
– joint venture
– lack of authority
– mutual mistake
– no government action
– privilege
– reasonable accommodation
– retraction
– safety of employee (ADA)
– statutory compliance
– no damages (where required element of pleading)
– termination of employement
– undue burden (ADA)
– wrong party
– implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003) (hat tip Bill Shea)
– failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) (hat tip Bill Shea)
– fair use (copyright). See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994). (hat tip Bill Shea)
– Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage). See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107. (hat tip Bill Shea)
– Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
– ignorance of the law. Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases. See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
– business judgment rule (hat tip Iain Johnston)
– claim of right (defense to element of intent required to prove theft)

3 Responses to “affimative defenses”

  1. Deadly Clear April 10, 2013 at 4:29 pm #

    Reblogged this on Deadly Clear and commented:
    “But your Honor, they really did all that to me!”

  2. A Workaholic April 11, 2013 at 2:25 am #

    I can not thank you enought for all the help that you have provided through the newsletters. I wish though, that you would go a little further and actually help homeowners facing self-defense in court. Attorneys just like most judges throw the case to whoever has the most money and they railroad a homeowners with lies and abbreviations that a simple hard working homeowner can not understand. Such public education should be paid by the government. As they have already proven to look the oher way in a court room.

    I am also going through 2 auto accidents and I am currently seeking Neurosurgeons. Hoswever, I find that my condition according to all doctors will be permanent. However, because our society has grown to FEAR AUTO INUSRANCE COMPANIES and BANKS. The public has a right to know their rights through T.V., Radio any and all forms of communications. The air-time was enabled because air waves were discovered. Such air waves(I do not know the right terminology) MUST be used to help the public keep them away from scammers, aware of areas where the level of crime/murder/theft has risen by what percentage. They can also be used to teach our children to stay away from strangers and even help them with their homework. Provide school competitions always seeking prodigent children. Their is so much good that we are now misusing. Right now, unless we fight and hold on to our houses and find ways to teach each other how to grow, prosper and defend the rights that our FourFathers Gave Us. We do not want to go back to EXPLOITATION, war, crime, mafia, home invasions that are already on the rise, identity theft because the U.S. has no clue as to how to allow the right immigrant to enter our country instead of millions who are evading capture for murder!!

    On 4/10/13, North Cal. 925-957-9797 So.Cal. 909-890-9192

  3. wheresmyson April 11, 2013 at 11:17 pm #

    Just one more thing ,)
    Did I lose my dam mind or is my gut right on
    Must be more then enough to of asked

    I read how others take over with ones trust
    I would prefer and demand to be involved in the group
    Then I can decide if how or hell no
    Have my say first
    What gives a child or family member the right to decide who will or is trustee over the trust ?

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