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 Associate’s Corner Each month, Kluger Kaplan‘s associates will take to the blog to talk about topics relevant to their practice areas. This month, Jeffrey Berman reminds us of the consequences for failing to reply to affirmative defenses. Don’t Forget to Reply to Affirmative Defenses! By Jeffrey M. Berman In a recent case, I encountered an issue that is often overlooked in litigation—replying to affirmative defenses. Under the Florida Rules of Civil Procedure, a party is not required to reply to the opposing party’s affirmative defenses merely to deny them. In fact, under Rule 1.110(e) affirmative defense are automatically deemed as denied in the absence of a reply. Fla. R. Civ. P. 1.110(e). However, where a party knows of facts that are outside the pleadings that avoid or negate the opposing party’s affirmative defenses (and not merely denies them), that party isrequired to file a reply setting forth those facts. In other words, a party must file a reply and plead its affirmative defense to the opposing party’s affirmative defense. Why is this so important? Because Florida law is clear that where a party fails to raise contentions outside the pleadings in a reply to an affirmative defense, the party may have just waived its right to later assert those facts in order to refute the affirmative defense. See, e.g., Burton v. Linotype Co., 556 So. 2d 1126, 1128 (Fla. 3d DCA 1990) (“As an affirmative defense, Linotype asserted the limited warranty clause. However, the contention that the limited warranty failed of its essential purpose was an avoidance which Burton and MLG waived by failing to plead in a reply.”); North American Phillips Corp., Inc. v. Boles, 405 So. 2d 202, 203 (Fla. 4th DCA 1981) (holding that it was reversible error to allow the plaintiff to introduce a letter from his counsel and argue that the letter demonstrating that the plaintiff had satisfied conditions precedent where the defendant had alleged a failure of conditions precedent as an affirmative defense and the plaintiff had failed to avoid it with an adequate reply); Reno v. Adventist Health Systems/Sun-Belt, 516 So. 2d 63, 65 (Fla. 2d DCA 1987) (“By having failed to reply to the [affirmative] defense, plaintiff would not be entitled at trial to raise new matters in avoidance thereof.”). For example, a plaintiff asserts a claim for money lent, and the defendant asserts the statute of limitations as an affirmative defense. The plaintiff believes that there are facts outside the pleadings that demonstrate that the defendant is estopped from asserting this defense due to its actions or unclean hands. Thus, although the plaintiff does not need to reply to the statute of limitations defense merely to deny that the claim is time barred, under this scenario the plaintiff must reply to the affirmative defense and seek to avoid it with the specific facts that the plaintiff will ultimately use to establish that the defendant is estopped from asserting the statute of limitations (i.e. the plaintiff must plead the specific facts that support its affirmative defense to the defendant’s affirmative defense). While there is a litany of case law on this issue, this important facet of the Florida Rules of Civil Procedure is often overlooked, and can lead to dire consequences for your client later in the proceeding, not to mention inadvertently committing malpractice. So let it serve as a reminder to attorneys to carefully review your opponent’s affirmative defenses, speak with your clients and investigate whether there are facts to avoid them, and be sure to reply to those affirmative defenses when necessary. (a) Pleadings. Only these pleadings are allowed: (1) a complaint; (2) an answer to a complaint; (3) an answer to a counterclaim designated as a counterclaim; (4) an answer to a crossclaim; (5) a third-party complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an answer. (b) Motions and Other Papers. (1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought. (2) Form. The rules governing captions and other matters of form in pleadings apply to motions and other papers. Notes(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983; Apr. 30, 2007, eff. Dec. 1, 2007.) Notes of Advisory Committee on Rules—1937 1. A provision designating pleadings and defining a motion is common in the State practice acts. See Ill.Rev.Stat. (1937), ch. 110, §156 (Designation and order of pleadings); 2 Minn.Stat. (Mason, 1927) §9246 (Definition of motion); and N.Y.C.P.A. (1937) §113 (Definition of motion). Former Equity Rules 18 (Pleadings—Technical Forms Abrogated), 29 (Defenses—How Presented), and 33 (Testing Sufficiency of Defense) abolished technical forms of pleading, demurrers, and pleas, and exceptions for insufficiency of an answer. 2. Note to Subdivision (a). This preserves the substance of [former] Equity Rule 31 (Reply—When Required—When Cause at Issue). Compare the English practice, English Rules Under the Judicature Act (The Annual Practice, 1937) O. 23, r.r. 1, 2 (Reply to counterclaim; amended, 1933, to be subject to the rules applicable to defenses, O. 21). See O. 21, r.r. 1–14; O. 27, r. 13 (When pleadings deemed denied and put in issue). Under the codes the pleadings are generally limited. A reply is sometimes required to an affirmative defense in the answer. 1 Colo.Stat.Ann. (1935) §66; Ore.Code Ann. (1930) §§1–614, 1–616. In other jurisdictions no reply is necessary to an affirmative defense in the answer, but a reply may be ordered by the court. N.C.Code Ann. (1935) §525; 1 S.D.Comp.Laws (1929) §2357. A reply to a counterclaim is usually required. Ark.Civ.Code (Crawford, 1934) §§123–125; Wis.Stat. (1935) §§263.20, 263.21. U.S.C., Title 28, [former] §45 (District courts; practice and procedure in certain cases) is modified insofar as it may dispense with a reply to a counterclaim. For amendment of pleadings, see Rule 15 dealing with amended and supplemental pleadings. 3. All statutes which use the words “petition”, “bill of complaint”, “plea”, “demurrer”, and other such terminology are modified in form by this rule. Notes of Advisory Committee on Rules—1946 Amendment This amendment [to subdivision (a)] eliminates any question as to whether the compulsory reply, where a counterclaim is pleaded, is a reply only to the counterclaim or is a general reply to the answer containing the counterclaim. See Commentary, Scope of Reply Where Defendant Has Pleaded Counterclaim (1939) 1 Fed.Rules Serv. 672; Fort Chartres and Ivy Landing Drainage and Levee District No. Five v. Thompson (E.D.Ill. 1945) 8 Fed.Rules Serv. 13.32, Case 1. Notes of Advisory Committee on Rules—1963 Amendment Certain redundant words are eliminated and the subdivision is modified to reflect the amendment of Rule 14(a) which in certain cases eliminates the requirement of obtaining leave to bring in a third-party defendant. Notes of Advisory Committee on Rules—1983 Amendment One of the reasons sanctions against improper motion practice have been employed infrequently is the lack of clarity of Rule 7. That rule has stated only generally that the pleading requirements relating to captions, signing, and other matters of form also apply to motions and other papers. The addition of Rule 7(b)(3) makes explicit the applicability of the signing requirement and the sanctions of Rule 11, which have been amplified. Committee Notes on Rules—2007 Amendment The language of Rule 7 has been amended as part of the general restyling of the Civil Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. Former Rule 7(a) stated that “there shall be * * * an answer to a cross-claim, if the answer contains a cross-claim * * *.” Former Rule 12(a)(2) provided more generally that “[a] party served with a pleading stating a cross-claim against that party shall serve an answer thereto * * *.” New Rule 7(a) corrects this inconsistency by providing for an answer to a crossclaim. For the first time, Rule 7(a)(7) expressly authorizes the court to order a reply to a counterclaim answer. A reply may be as useful in this setting as a reply to an answer, a third-party answer, or a crossclaim answer. Former Rule 7(b)(1) stated that the writing requirement is fulfilled if the motion is stated in a written notice of hearing. This statement was deleted as redundant because a single written document can satisfy the writing requirements both for a motion and for a Rule 6(c)(1) notice. The cross-reference to Rule 11 in former Rule 7(b)(3) is deleted as redundant. Rule 11 applies by its own terms. The force and application of Rule 11 are not diminished by the deletion. Former Rule 7(c) is deleted because it has done its work. If a motion or pleading is described as a demurrer, plea, or exception for insufficiency, the court will treat the paper as if properly captioned. How long do you have to reply to affirmative defenses in Florida?DEFENSES. (a) When Presented. (1) Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication.
What is the rule 7?Rule 7 – Pleadings allowed
(1) In General. A request for a court order must be made by motion. The motion must: (A) be in writing unless made during a hearing or trial; (B) state with particularity the grounds for seeking the order; and (C) state the relief sought.
What is Rule #10?A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading.
What is the most common affirmative defense?Several affirmative defenses are nationally recognized, with the more common ones being necessity, duress, self-defense, entrapment, and insanity.
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Do you have to respond to affirmative defenses in federal court
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