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Answer

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'Central to requiring the pleading of affirmative defenses is prevention of ... A ? should not be permitted to lie behind a log' and ambush a ? with an ... Robins? ... – PowerPoint PPT presentation

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Title: Answer


1
Answer
  • Rule 8(b)-(d)

2
Rule 8(b)-(d)
  • 8(b) types of responses
  • Admit
  • Deny
  • Dont know
  • 8(c) affirmative defenses
  • Central to requiring the pleading of affirmative
    defenses is prevention of unfair surprise. A ?
    should not be permitted to lie behind a log and
    ambush a ? with an unexpected defense. Ingraham
    v. United States, 808 F.2d 1075 (5th Cir. 1987).
  • 8(d) if you dont deny it, you admit it.

3
Responses Compared
4
How to Admit, Deny, be Without Knowledge
  • Defendant admits the averments contained in
    Paragraph 5 of Plaintiffs Complaint.
  • Defendant denies the averments contained in
    Paragraph 5 of Plaintiffs Complaint.
  • Defendant is without knowledge or information
    sufficient to form a belief as to the truth of
    the averments contained in Paragraph 5 of
    Plaintiffs Complaint.
  • Defendant denies the averments contained in
    Paragraph 1 of Plaintiffs Complaint, except
    admit that Plaintiff purports to assert claims
    arising from X.
  • Paragraph 5 contains a conclusion of law as to
    which no responsive pleading is required.

5
How Not to Deny Allegations
  • Complaint On January 14, 2004, ? ran over ?
    with her car in Macon.
  • Wrong On January 14, 2004, ? was on vacation
    in the Bahamas.
  • Argumentative denials are improper.
  • But what about this? ? denies that on January
    14, 2000 she ran over ? with her car in Macon.
  • Did she run over ? on January 15? With a truck?
    In Warner Robins?
  • How can ? phrase the answer to put ? on notice
    that she intends to challenge whether she ran
    over ??

6
How Not to Be Without Knowledge or Information
  • Complaint ? is an unincorporated association.
  • Answer ? is without knowledge or information
    concerning the averments of Paragraph 5 and
    therefore denies same.

7
How Not to Raise Affirmative Defenses
  • Complaint ? breached its contract.
  • Answer ? was contributorily negligent.
  • Complaint ? committed an intentional tort.
  • Answer ? assumed the risk.
  • Why is this bad? What can a judge do to punish
    you if you do it?

8
Sample Affirmative Defenses
  • accord and satisfaction
  • adhesion contract
  • after-acquired evidence
  • arbitration and award
  • assumption of risk
  • breach of warranty
  • buyer in ordinary course of business
  • circuity of action
  • claim that a lenders sale of collateral was not
    commercially reasonable
  • claim that a written contract is incomplete
  • concealment of an alleged prior undissolved
    marriage
  • contributory negligence
  • custom of trade or business
  • discharge in bankruptcy
  • discharge of a contract obligation through
    novation or extension
  • duress
  • equitable recoupment
  • estoppel
  • failure of consideration
  • failure to mitigate damages
  • failure to exhaust state (or administrative)
    remedies
  • fraud
  • good faith belief in lawfulness of action
  • hindrance of contract
  • illegality
  • immunity from suit (common-law or statutory)
  • injury by fellow servant
  • insurance policy exclusion
  • invalidity of patent
  • joint venture

9
. . . continued
  • judgment against a defendants joint tortfeasor
  • laches
  • lack of standing
  • liability of phantom party
  • license
  • merger
  • misuse
  • mitigation and setoff
  • non-cooperation of an insured
  • non-manufacture
  • party not named in administrative-level complaint
  • payment
  • preemption
  • provocation
  • release
  • res judicata
  • rescission or mutual abandonment of a contract
  • settlement agreement or release barring an action
  • state automobile injury reparations law
  • statute of frauds
  • statute of limitations
  • statutory employer
  • statutory limitation on liability
  • termination agreement
  • timeliness of removal petition
  • unclean hands
  • usury
  • violation of law or regulations
  • voidable preference in bankruptcy
  • waiver
  • wrong party
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