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BOBBITT v. VICTORIAN HOUSE

February 16, 1982

RICHARD A. BOBBITT, PLAINTIFF,
v.
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 ("Morlock") seeking:

    (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:

First, the Complaint appears to pose a substantive problem. Its prayers for relief just listed as (c) and (d) are asserted against Morlock for his alleged mismanagement of Victorian House and misappropriation of corporate funds. Those allegations charge a breach of fiduciary duties to Victorian House rather than to Bobbitt individually. Ordinarily a stockholder like Bobbitt can bring such an action only in a derivative status. But the Complaint does not in terms allege a derivative lawsuit.*fn2 Absent Bobbitt's appropriate amendment of the Complaint, this Court must treat this action as one solely for dissolution and receivership.*fn3

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[3] 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[3] 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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