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BOBBITT v. VICTORIAN HOUSE
February 16, 1982
RICHARD A. BOBBITT, PLAINTIFF,
VICTORIAN HOUSE, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Richard A. Bobbitt ("Bobbitt") sues Victorian House, Inc.
("Victorian House") and its President Albert Morlock
(a) appointment of an independent receiver to
run Victorian House;
(b) dissolution of Victorian House;
(c) an accounting of corporate funds misapplied
or wasted by Morlock; and
(d) an injunction restraining Morlock from
mismanaging the affairs of Victorian House,
usurping the powers of the board of directors and
intruding on the rights of Bobbitt.
Defendants have answered the complaint and filed eight
affirmative defenses.*fn1 Bobbitt has moved to strike those
defenses. For the reasons stated in this memorandum opinion and
order Bobbitt's motion is granted in part and denied in part.
Two preliminary areas should first be addressed:
Second, it is constructive as a threshold matter to examine
the general role of an affirmative defense. Rule 8(c) requires
a party to set forth any affirmative defense in a responsive
pleading. Failure to do so may waive the right to present
evidence at trial on that defense. Henry v. First National Bank
of Clarksdale, 595 F.2d 291, 298 n. 1 (5th Cir. 1979). In the
real world, however, failure to plead an affirmative defense
will rarely result in waiver. Affirmative defenses — like
complaints — are protected by the direction of Rule 15(a) that
courts are to grant leave to amend pleadings "freely . . . when
justice so requires." Accordingly, failure to advance a defense
initially should prevent its later assertion only if that will
seriously prejudice the opposing party.
Nonetheless the very possibility of waiver makes it important
(and certainly prudent) to plead all appropriate affirmative
defenses. That leads to a definitional question: What is an
affirmative defense? Rule 8(c) lists 17 specific defenses but
concludes that a party must also plead "any other matter
constituting an avoidance or affirmative defense." That creates
the sometimes difficult problem of determining what
unspecified matters are also "affirmative defenses" that must
be pleaded separately in an answer. 5 Wright and Miller,
Federal Practice and Procedure § 1270 at 292 speaks of an
affirmative defense as something that generally admits the
matters in a complaint but suggests some other reason why there
is no right of recovery. 2A Moore's Federal Practice ¶ 8.27
at 8-250, 8-254 calls it something that raises a matter outside
the scope of plaintiff's prima facie case and is thus a matter
not raised by a simple denial.
Both those definitions are obviously imprecise. So the
cautious pleader is fully justified in setting up as
affirmative defenses anything that might possibly fall into
that category, even though that approach may lead to pleading
matters as affirmative defenses that could have been set forth
in simple denials.
Both major treatises have taken the same position on that
problem. 2A Moore's Federal Practice ¶ 8.27 at 8-251 says:
A so-called affirmative defense that is
surplusage, in that it merely raises matters
already at issue under a denial, may be stricken.
But if there is any real doubt about the
defendant's right, under his denial, to offer
proof of ...
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