• August 27, 2015

Soo_Line_2500_StreamlinerIt has bothered me that plaintiffs are held to a somewhat high standard, in my view, as to what they can plead and what they cannot plead in their complaints when defendants are given substantially more leeway in their answers to plaintiffs’ complaints.

This rule makes sense but it still bothers me.

It makes sense because plaintiffs START lawsuits. They put the whole mess in motion. Our court system, naturally, would like to impose a punitive rule for people (or even their close relatives, lawyers) who start lawsuits where there is no reasonable basis for the lawsuit, either as a matter of fact or as a matter of law.

Defendants, on the other hand, don’t start lawsuits. They REACT to lawsuits. And the amount of time to answer  lawsuits is not a lot of time. And if defendants fail to raise what are called “affirmative defenses,” then they might be held later to have waived them. So defendants are given more leeway in raising affirmative defenses (that very often have no reasonable basis as a matter of fact or as a matter of law) than plaintiffs are given in making allegations in complaints.

So when is it appropriate for plaintiffs to move to strike affirmative defenses, which have no basis in fact or no realistic legal application to the case at hand?

That is, if defendants are allowed to say that plaintiff’s claims fail or these 25 reasons (here is an answer with 25 affirmative defenses raised), is it worth a plaintiff’s time and energy to move to strike some or all of those “reasons” if the plaintiff thinks they have no factual or legal validity in the case?

“Affirmative defenses” are invoked in every case, and often in an over-the-top everything-included way. It is undoubtedly a waste of time and money to seek to have affirmative defenses stricken in many cases.

On the other hand, some affirmative defenses could be entirely fatal to a plaintiff’s claim. Particularly contingent fee lawyers might be wise to test the validity of these affirmative defenses at the earliest possible opportunity so that a losing case is not litigated for a year or more, only to be lost on an issue that was “teed up” early in the case. Other affirmative defenses might greatly add to discovery costs even when they are factually or legally baseless and, if so, maybe a motion to strike at the outset would be warranted in such cases.

Congratulations to the careful work of railroad plaintiffs’ lawyers Yaeger & Jungbauer Barristers PLC in bouncing Defendant Soo Line’s affirmative defenses in a “FELA” case (Federal Employers’ Liability Act).  U.S. District Court Chief Judge John R. Tunheim (D. Minn.) overruled the objections that Soo Line raised to U.S. Mag. Judge Steven E. Rau’s striking of an affirmative defense which could have been fatal to plaintiff’s claim if it had been adopted by the Court.


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