Answer

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Answer

• Rule 8(b)-(d)

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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.

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Responses Compared
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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.

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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 ??

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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.

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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?

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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

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. . . 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