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Legal Memorandum: Affirmative Defense

Issue: Is a defendant’s affirmative defense argument (that its right of first refusal grants it a ‘privilege’ to interfere with the plaintiff’s contracts and prospective business relations) waived by the defendant’s failure to assert the argument in its answer?

Area of Law: Business Organizations & Contracts, Litigation & Procedure
Keywords: Affirmative defense; Justified interference
Jurisdiction: Federal
Cited Cases: None
Cited Statutes: Federal Rule Civil Procedure 8(c), 12(h); Restatement § 773
Date: 11/01/2006

See 86 C.J.S. Torts § 47 (2006) (“Justified interference does not subject the interfering party to tort liability.  This is an affirmative defense . . ..”); see also Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 989 (1st Cir. 1983) (Restatement § 773 is an “affirmative defense”); Donovan v. Digital Equip. Corp., 883 F. Supp. 775, 788 (D.N.H. 1994) (“affirmative defense”); Westfield v. Rifle Inv. Assoc., 786 P.2d 1112, 1119 (Colo. 1990) (“affirmative defense”); K&K Mgmt. v. Lee, 557 A.2d 965, 992 (Md. 1992) (“affirmative defense”).

Federal Rule Civil Procedure 8(c), entitled “Affirmative Defenses” provides that “[i]n a pleading to a preceding pleading, a party shall set forth affirmatively . . . [certain enumerated affirmative defenses] and any other matter constituting an avoidance or affirmative defense.”  (emphasis added).  Where there is no proper excuse for this failure to plead the affirmative defense in the Answer, the defense is waived.  See Sec. Servs., Inc. v. K Mart Corp., 996 F.2d 1516, 1519 n.2 (3d Cir. 1993) (“K Mart, however, has failed to assert [in its answer] this affirmative defense and therefore has waived it.”); Van Sant v. Am. Express Co., 169 F.2d 355, 372 (3d Cir. 1948) (under federal Rules 8(c) and 12(h) affirmative defense must be pleaded in answer or be the subject of a motion under Rule 12 or it is waived); Johnson v. Miller, 925 F. Supp. 334, 341 (E.D. Pa. 1996) (“The Federal Rules of Civil Procedure clearly state that all affirmative defenses and avoidances ‘shall’ be pleaded in the answer.  […]

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