The Forgotten Pleading’ Serves As Guide to Determining Best Defense

CHICAGOLAWBULLETIN.COM WEDNESDAY, JULY 25, 2018

Volume 164, No. 144 Serving Chicago’s legal community for 163 years ‘The Forgotten Pleading’ serves as guide to determining best defense

e have previous - Sporting Goods Inc. v. BB Holdings ly explored the BY JULIANNE M. H ARTZELL AND DAVID N. P ATARIU Inc. , No. 15-CV-11652, 2016 WL teachings by the Julianne M. Hartzell is a litigation partner at Marshall, Gerstein & Borun LLP 2733285, at *2 (N.D. Ill., May 11, late U.S. District and chair of its medical devices practice group. She is a trial attorney handling 2016) (J. St. Eve); Manley v. judge Milton I. patent, trademark, copyright and trade secret cases. David N. Patariu is an Boat/U.S. Inc. , No. 13-CV-5551, SWhadur about answering a com - associate at Marshall, Gerstein who focuses on data privacy matters and 2016 WL 1213731, at *5 (N.D. Ill., plaint and pleading affirmative technology litigation. March 29, 2016) (J. Dow); Sarkis’ defenses. Cafe Inc. v. Sarks in the Park LLC , We now focus on negative and plaintiff’s claim; negative defens - defenses, not affirmative 55 F.Supp.3d 1034, 1040–41 (N.D. affirmative defenses as dis - es should not be separately defenses. The asserted defense Ill. 2014) (J. Lee). If either is true, cussed in “The Forgotten Plead - pleaded or repeated as affirma - was a direct attack on the allega - the defense is an affirmative de - ing” by 7th U.S. Circuit Court of tive defenses, she says. tions made in the plaintiffs’ com - fense. Appeals Judge Amy J. St. Eve In contrast, an affirmative de - plaint about the putative The available procedure a party and Michael A. Zuckerman, a fense is an implicit admission of collective action. can use to defeat or pursue a de - former St. Eve law clerk. 7 Fed. the factual allegations in the The court struck this affirma - fense depends on the type of de - Cts. L. Rev. 152 (2013) (available complaint, but avoids liability, in tive defense challenging the ade - fense — negative or affirmative. at SSRN). whole or in part, based on addi - quacy of the class because it was For example, a defendant seek - Like Shadur’s teachings in his tional allegations of excuse, justi - more accurately classified as a ing early case termination on the appendix in State Farm, St. Eve’s fication or other negating negative defense and was not ap - basis of an affirmative defense “The Forgotten Pleading” pro - matters. Federal Rule of Civil propriately pleaded as an affir - should first answer the com - vides important tips on properly Procedure 8(c); see Sloan Valve mative defense. plaint, second, plead the affirma - pleading defenses and mastering Co. v. Zurn Industries Inc. , 712 F. For a second example, “failure tive defense in the answer and, the answer. Supp. 2d 743, 749 (N.D. Ill. 2010) to state a claim” is a negative de - third, move for judgment on the In “The Forgotten Pleading,” (“the basic concept of an affirma - fense that argues the plaintiff pleadings under Federal Rule of St. Eve examines the affirmative tive defense is an admission of has not met its burden in estab - Civil Procedure 12(c). and negative defenses that can the facts alleged in the com - lishing one or more elements of a Unlike negative defenses, affir - be pleaded in the answer. Often plaint, coupled with the assertion claim. See Unigestion Holding mative defenses are external to a defendant will plead a grocery of some other reason defendant S.A. v. UPM Technology Inc. , 305 the complaint — they do not in - list of affirmative defenses, is not liable”) (J. St. Eve); Riemer F.Supp.3d 1134 (D. Or. 2018); see validate the claim for relief many of which are negative de - v. Chase Bank USA N.A. , 274 also Hiramanek v. Clark , No. 13- pleaded in the complaint. So dis - fenses cast as affirmative F.R.D. 637, 639 (N.D. Ill. 2011) (M.J. 00228, 2015 WL 693222, at *2 positive motions based on affir - defenses. Cole); see also Zivkovic v. Southern (N.D. Calif., Feb. 18, 2015) (“Failure mative defenses should be raised What’s the difference? A nega - California Edison Co. , 302 F.3d to state claim: [defendants] agree after the pleadings are closed, tive defense is an attack on a 1080, 1088 (9th Cir. 2002) (“A de - to remove this affirmative de - under Rule 12(c) Motion for plaintiff’s prima facie case, a de - fense which demonstrates that fense, which is an improper nega - Judgment on the Pleadings, not fense that directly contradicts el - plaintiff has not met its burden of tive defense.”). While commonly under Rule 12(b)(6) which “tests ements of the plaintiff’s claim for proof [as to an element plaintiff is used, failure to state a claim is not whether the complaint states a relief. Fed. Rule of Civil Procedure required to prove] is not an affir - an affirmative defense. claim for relief,” according to 8(b); Neylon v. County of Inyo , No. mative defense.”). How does one determine “The Forgotten Pleading.” 1:16-CV-0712 AWI JLT, 2017 WL For example, in Escobedo v. Os - whether a defense is negative or Problems created by poorly 3670925, at *3 (E.D. Calif., Aug. 25, wego Junction Enterprises , No. 17- affirmative? Federal Rule of Civil delineated defenses and clut - 2017) (“‘negative’ defenses, i.e., CV-0682, 2017 WL 3130643, at *4 Procedure 8(c) enumerates sev - tered pleadings manifest them - defenses that simply negate an el - (N.D. Ill., July 24, 2017) (M.J. eral affirmative defenses and the selves during trial preparation, ement of the plaintiff’s claim or Cox), a class-action case, the 7th Circuit has identified two ap - as St. Eve explained in “The For - defenses that state the plaintiff plaintiff sought to strike an affir - proaches for determining gotten Pleading”: cannot meet her burden as to an mative defense alleging the puta - whether a defense not specifical - “Some may not even be cog - element of proof, are not affirma - tive class was overly broad and ly found in Rule 8(c) of the Feder - nizable under the applicable tive defenses”). that both named plaintiffs were al Rules of Civil Procedure is an substantive law (for example, “A negative defense arises out not qualified to act as class rep - affirmative defense: (a) “if the the ‘operation of nature’ or ‘act of the defendant’s specific re - resentatives because they were defendant bears the burden of of god defense’). Of the affirma - sponse in its answer to the alle - not similarly situated to other proof” under state law, or (b) “if tive defenses that are properly gations in the complaint,” St. Eve class members. it [does] not controvert the plain - pleaded as such, many will writes. Negative defenses like “I The court observed that chal - tiff’s proof.” Winforge Inc. v. nonetheless lack sufficient evi - did not do it” are included in the lenges to the adequacy of class al - Coachmen Industries Inc. , 691 F.3d dentiary support, but if the defendant’s specific response to legations are treated as negative 856, 872 (7th Cir. 2012); Maurice plaintiff never moved for

Copyright © 2018 Law Bulletin Media. All rights reserved. Reprinted with permission from Law Bulletin Media. summary judgment on that These problems continue es in its answer and many of judicial and private resources.” basis, the defenses will re main. when the parties file motions in them fail as a matter of law. No The answer and its defenses “Other remaining affirmative limine and as the parties consid - matter, the defendant retorts, can present procedural traps for defenses will be boilerplate and er jury instructions: because the plaintiff never filed the unwary, hobbling a case for perfunctory statements of law “The parties now dispute an appropriate motion to strike its duration. (‘the claim is extinguished by ac - whether the court should in - the defenses,” St. Eve writes. Reviewing the helpful guid - cord and satisfaction’), but the struct the jury on each remain - Trial judges can, under Federal ance contained in “The Forgot - plaintiff never moved to strike ing affirmative defense pleaded Rule of Civil Procedure 16, use the ten Pleading” by St. Eve, et al., these defenses as insufficient in the answer. The defendant pretrial conference to remove clut - and the late judge Shadur’s ap - under Rule 12(f). So they too will wants the instructions, but the ter from pleadings and narrow is - pendix in State Farm can reduce remain, although the nature and plaintiff points out that the de - sues for trial, but St. Eve notes this the risk of harm from these traps theory of the defense may be fendant pleaded the kitchen sink late stage remedy often results and give a party advantages dur - wholly unclear.” of purported affirmative defens - “in a tremendous waste of both ing the lifecycle of a case.