Legal Memorandum: Determination of an Unpleaded Defense–US

Issue: What is the standard for determining whether a district court should allow a defendant to prove an unpleaded defense in Minnesota?

The construction of pleadings is a question of law for the trial judge for the trial judge, see Hammonds v. Hartford Fire Ins. Co., 501 F.3d 991, 995 n.5 (8th Cir. 2007); when the issue is whether a district court should allow a defendant to prove an unpleaded defense, however, it appears that the abuse-of-discretion standard applies, as the cases cited below discuss.  Further, while "'[a]n affirmative defense which is not pleaded is . . . deemed waived," "in practice an affirmative defense is not waived to the extent that the party who should have pled the defense introduces evidence in support thereof without objection by the adverse party.’"  Okeson v. Tolley Sch. Dist. No. 25, 760 F.2d 864, 867 (8th Cir. 1985) (quoting Jones v. Miles, 656 F.2d 103, 107 n.7 (5th Cir. 1981), and citing Mason v. Hunter, 534 F.2d 822, 825 (8th Cir. 1976)).

Many of the cases discuss whether the trial court properly allowed a defendant to amend the answer to include the omitted affirmative defense.  For example, in Madison v. IBP, Inc., 149 F. Supp. 2d 730 (S.D. Iowa 1999), aff’d in pt., vacated in pt. on other grounds, 257 F.3d 780 (8th Cir. 2000), vacated on other grounds, 536 U.S. 919 (2002), the plaintiff contended that the defendant waived a statutory cap on damages, 42 U.S.C. § 1981a(b)(3), by not including it as an affirmative defense in its […]