Under federal law, are defendants allowed to plead “negative” defenses in answer to a federal complaint in federal court? Here’s my point of view.
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AFFIRMATIVE DEFENSES
“An affirmative defense, under the meaning of Fed.R.Civ.P. 8(c), is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven.” Lane v. Page, 272 F.R.D. 581, 598 (D.N.M. 2011) (internal citation omitted) (hyperlinks added). The burden for establishing affirmative defenses generally lies on the defendant. Id. (internal citation omitted).
NEGATIVE DEFENSES
However, “negative” defenses are merely rebuttal to plaintiff’s claims and should be stricken; the courts have held these so-called affirmative defenses (or negative defenses) simply provide a basis to negate an element of the prima facie case for relief and are restatements of denials present in earlier parts of the complaint. See id. (citing Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (striking eight “negative” defenses); see Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002) (“A defense which demonstrates that plaintiff has not met its burden of proof [as to an element plaintiff is required to prove] is not an affirmative defense.”(citing Flav-O-Rich v. Rawson Food Service, Inc., 846 F.2d 1343, 1349 (11th Cir.1988))) (internal quotation marks omitted) (hyperlinks added).
CONCLUSION
It appears that under federal law, defendants may plead “negative” defenses in answer to a federal complaint in federal court, but such negative defenses are not affirmative defenses and should be stricken as a defense. A fundamental consideration is whether the time, expense, and risk in bringing the motion to strike is outweighed by the benefit. Obviously, that is only a question for a party or party representative to answer relative to their particular matter.
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