Legal Memorandum: Rebuttal of an Affirmative Defense in MN

Issue: Does Rule 8(c) of the Federal Rules of Civil Procedure give the opposing party a right rebut an affirmative defense in Minnesota?

Generally speaking, pursuant to Rule 8(c) of the Federal Rules of Civil Procedure, the failure to plead an affirmative defense results in a waiver of that defense.  E.g., First Union Nat’l Bank v. Pictet Overseas Trust Corp., Ltd., 477 F.3d 616, 622 (8^th Cir. 2007) (citing, inter alia, Fed. R. Civ. P. 8(c)).  The United States Supreme Court has explained that the Rule 8(c) pleading requirement is intended to give the opposing party both notice of the affirmative defense and an opportunity to rebut it.  Id. at 622 (citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971); Grant v. Preferred Research, Inc., 885 F.2d 795, 797-98 (11th Cir.1989)).

Acknowledging these purposes, the Eighth Circuit has eschewed a literal interpretation of Rule 8(c) that places form over substance.  Id. (citing Thomas v. St. Luke’s Health Sys., Inc., 869 F. Supp. 1413, 1428-29 (N. D. Iowa, 1994), aff’d per curiam, 61 F.3d 908 (8th Cir.1995) (unpublished table decision)).  Instead, the Eighth Circuit has held that, “[w]hen an affirmative defense ‘is raised in the trial court in a manner that does not result in unfair surprise, . . . technical failure to comply with Rule 8(c) is not fatal.'” Id. (quoting Fin. Timing Publ’ns, Inc. v. Compugraphic Corp., 893 F.2d 936, 944 n.9 (8th Cir.1990) (quoting Allied Chem. Corp. v. Mackay, 695 F.2d 854, 855 (5th Cir.1983))). 

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