I.

Twiqbal and Affirmative Defenses

A. Twiqbal is an interpretation of the language of Rule 8a2, Affirmative Defenses aren’t

controlled by 8a2, therefore Twiqbal does not apply to Affirmative Defenses

1. They are controlled by 8b

B. Affirmative Defenses are more akin to Rule 12b6

1. The reason you failed to state a claim is because of this [affirmative defense]

2. “You failed to state a claim upon which relief can be granted, because of res judicata/

unclean hands/etc”

C. Affirmative Defenses don't usually take up a lot of discovery time, thus they evade the

policy concerns of Twiqbal

D. Defendants can get a court to act on an affirmative defense through a 12c motion

(judgment on the pleadings), BUT as a defendant you need facts to support your

affirmative defense to exercise this option.

1. Note that the court would likely order the plaintiff to file a reply to an answer from

under Rule 7a7.

2. The plaintiff will then respond to the defendant’s answer by admitting/denying the

facts in it.

3. In a 12c motion, the court will then look at all the pleadings (complaint, answer, reply

to the answer), in particular at the agreed upon facts.

4. If there is a sufficient factual dispute, the court will deny the 12c.

E. The contents of the original complaint control wether the defendant files a pre-answer

12b6 or a 12c after Answer.

 1. Sometimes the original complaint does not have enough facts to fuel a defendant’s

affirmative defense (lack of a built in defense), requiring the defendant to file an

answer to include the necessary facts for a 12c

2. If the original complaint has sufficient facts, you can file a pre-answer 12b6

a) For example if the original complaint has enough facts to show that the statute of

limitations has passed on this claim, a defendant would file a 12b6 with a

memorandum noting that the statute of limitations has run

3. A defendant’s actions are also governed by the considerations that 12b defenses

(subject to 12h) might be waived if they aren’t filed in the first response, and that 8c

defenses are waived subject to amendment under rule 15.

F. Affirmative Defenses put the burden of pleading and proof on the Defendant. Whereas

the Plaintiff has the burden in a Failure of proof defense.

1. Both can turn on the same fact, but elements of claims involve failure of proof

defenses, while particular facts deal with affirmative defenses.

2. For Example, in a Debt claim as defined by current law, all the defendant has to show

is that they paid (this is an affirmative defense). So the minimum the defendant has

to allege in order to invoke the affirmative defense is that they paid.

a) The plaintiff, in making a debt claim, only has to allege that the defendant

borrowed money from them.

b) Because of how the law defines a Debt claim, the only burden the plaintiff carries

is in alleging/proving that the defendant borrowed money. The plaintiff does not

have to allege/prove that the defendant didn’t pay the money back, and therefore

the defendant cannot use a failure of proof defense. The defendant can however
 allege that they paid the debt as an affirmative defense, the difference being that

defendant is the one who has to plead this and will ultimately be responsible for

proving.

3. In another example, Civil Sexual Battery is currently defined as (1) Sexual Contact

without (2) Consent. As is, the plaintiff would have to allege and prove both

elements. If sexual battery was instead defined as just (1) Sexual Contact, then the

defendant could use consent as an affirmative defense.

a) “Yes, sexual contact occurred, but, with consent”

b) In Kinnsman, Winston denied that there was sexual contact without consent, but

then alleged consent as an affirmative defense, which is trying to take on the

plaintiffs burden. Don’t do this.

II. New Claims

A. Counterclaims, Crossclaims, Impleader

1. A defendant can file new claims in an answer. This is not the same thing as defending

against the claim that was brought against you. The new claim is not the same as a

defense against the old claim. This is the defendant seeking remedy for their own

damages.

2. When you add claims to a reply, it becomes a pleading that becomes a claim for relief,

and is thus controlled by 8a2 and Twiqbal. If your new claim is fraud/mistake, then

9b controls.

3. The plaintiff must then reply to the defendant’s new claims.

 a) In Jones v. Ford, the plaintiff originally brought a claim for racial discrimination in

lending under the ECOA. Ford replied with a new claim (counterclaim) with a

Debt claim. The plaintiff replied with a 12b1

4. In responding to a counterclaim, it is necessary to state your failure of proof defense:

admit/deny the facts. You can also reply with new claims and affirmative defenses.

And if you reply with new claims, the other party has to reply to them.

B. Holmes Hypos

1. Holmes commissioned software from Clear Code after Cosgrove sold their services to

him. Clear Code subcontracted the coding for the software to Jasper. Jasper did the

coding work on a computer he bought from High Tech. The following claims arose

a) Holmes against Clear Code for breach of contract for selling a defective product.

b) Holmes against Cosgrove for fraudulently inducing him into entering the contract

with Clear Code.

c) Clear Code against Holmes for failing to pay on the current contract and for

failing to pay on a previous contract for work Clear Code did for Holmes

d) Cosgrove against Clear Code for wrongful termination (CC fired Cosgrove after

the deal wirth Holmes went bad) and to indemnify him on Holmes' claims

against him pursuant to his employment agreement

e) Clear Code against Cosgrove for violating a non-compete and going to work for a

rival company

f ) Clear Code against its insurance company, getting it to indemnify it for Holmes'

claims pursuant to its insurance agreement

 g) Clear Code against Jasper for contribution; Jasper made the defective code that

CC gave to Holmes

h) Jasper against Clear Code for non-payment on the current contract and non-

payment on a past job Jasper did for CC

i) Jasper against High Tech for leasing him a defective computer that Jasper used to

make the (allegedly defective) code for the Holmes job

j) Jasper against Holmes for quantum meruit (the value of the work Jasper did for

Holmes' benefit) and for defamation (because of Holmes' criticism of Jasper's

work).

k) Holmes against Jasper for tortious interference with Holmes' contract with Clear

Code

2. The Clear Code and Cosgrove claims arose from the same transaction, and now that

they’re been sued, they have to respond. The first claim is a crossclaim under 13g.

a) Cosgrove and Clear Code are both defendants with respect to Holmes, and thus

they are co-parties. Any crossclaims between Cosgrove and Clear Code have to

arise from the same transaction as Holmes’ claim against Cosgrove or Clear Code.

b) A crossclaim essentially says, “If I (defendant 1) am liable to the plaintiff, then

you (defendant 2) are liable to me for part or all of the claim.” This is contingent

liability.

(1) Two types of contingent liability: Indemnification via K or other relation or

Contribution.

3. Impleader under 14a allows defending party to bring in a third party. 14a allows this

only on contingent liability for the original complaint.

 a) Downstream claims must arise from same transaction or occurrence.

b) The person you pull in, the third party plaintiff, must be served under rule 4.

c) It is never compulsory to bring a crossclaim or an impleader

(1) Impleaders are conditional, and both crossclaims and impeders have to be

related to the original claim by either arising from the same transaction/

occurrence or are contingent on the original claim.

(2) Impleaders and crossclaims are permissive because their necessity is

contingent on the defendant being found liable. The defendant can wait to see

if they’re found liable. This avoids the co-defendants from cannibalizing each

other’s defense

4. Counterclaims are between opposing parties

a) Counterclaims don’t have to be related to the original claim.

(1) If the counterclaim is related to the original claim, you must bring it.

(2) If it is not related to the original claim, then you don’t have to bring it

b) Compulsory counterclaims follow the same principle of Res Judicata: we don’t

want to keep rehashing the same facts over and over again.

(1) If you don’t bring a compulsory counterclaim before the final judgment, you

waive it under claim preclusion/res judicata.

c) Permissive counterclaims are allowed via Rule 18a. We want the parties to settle

every dispute between them.

5. When Defending parties may bring in a third party

a) Rule 14 outlines how third parties can defend against the plaintiff.
 (1) 14A2B Allows Third Parties To Defend Against the plaintiff or defend the

defendant from the plaintiff because if the Defendant is found not liable, then

the third party isn’t found liable either

(2) 14a2d allows the third party to bring their own claims against the plaintiff

(3) 14a5 allows the third party to implead a fourth party for contingent liability.

This new fourth party must now also file an answer.

(4) 14a5 allows the plaintiff to bring new claims against the third party

defendants, so long as they arise form the same T/O as the original claim.

6. We use the logical relationship test for determining if claims arise from the same T/O.

If logical relationship doesn’t give us an answer, we turn to the same evidence test.

a) In Jones, the court said that the facts that gave the rise to the counterclaim (you

didn’t pay us) were not from the same T/O. A But-For relationship is not enough.

Plaintiff stopped paying loan because of discrimination (a self help measure) and

thus Ford counterclaimed for lack of payments. This was not enough.

7. Bose v. Consumer’s Union Hypo

a) Bose sues a magazine on an unfair competition and trademark violation claim

after the magazine gave a bad review. Consumer could counterclaim with a

defamation and abuse of process claim, are these counterclaims permissive or

compulsory?

(1) They are permissive. The T/O is the bad review. The claims for defamation

and abuse of process didn’t arise from the bad review, they rose from Bose’s

lawsuit and press release. This establishes a but-for connection, not a logical

relationship.
 8. Crossclaims are between co-parties, but when co-parties bring a valid claim against

each other, they become opposing parties and can thus bring in unrelated

counterclaims against each other under 18a.

a) If Holmes sues Clear Code, and Clear Code imp leads Jasper, Jasper can sue the

Holmes under rule 14a2d

9. Affirmative Defenses=Shield, Counterclaims=Sword, but Fraud can act as both. A

party can use it as a defense (fraud in the inducement) and as a counterclaim (Injury

to Fraud)

10. Rule 8c2 speaks to when party mistakenly designates a counterclaim as a affirmative

defense and vice versa: Court will interpret it correctly despite the mistake. (Provided

justice requires)

11. Pleadings are closed/Issues are joined: when every claim for relief that has not been

dismissed has been responded to (subject to amendment 15)

12. Claims that aren’t replied to: Default answer under rule 55a (a concession that the

claim is true), this answer can be converted into a default judgment under 55b.

a) A default answer can be set a side for good cause, and a default judgment can be

reversed by 60b

13. Plaintiff can voluntarily dismiss their own claims 41a

a) Before there’s been an answer or before a summary judgment a1a1

b) a1a2 by agreement of the parties

c) a2 by court order, also preserving defendant’s counterclaim that was attached to

dismissed claim

III. Amendments
A. Rule 15 allows amendment as a matter of course–without permission of the court or the

other party–and amendment by leave of court/written consent of opposing party

1. Most common papers that are amended are those to which a responsive pleading are

required: complaints, answers with counterclaims and crossclaims, impleaders. See

15a1b for amendments to these papers

2. 15a1a for papers to which a responsive pleading is not required: answers without

new claims

B. You have 21 days after filing the paper you want to amend to amend

C. You can only amend once as a matter of course. 15a2 is for who you can’t do it as a matter

of course–when either the time has expired or you already have done it before.

1. The court gives leave to amend whenever justice so requires

2. Krupsky tells us that liberal leave to amendment is an important part of federal notice

pleading

3. Court also uses “when justice so requires” in dismissals when trying to determine

whether to dismiss with or without prejudice (an implicit adoption).

D. The amended pleading is a complete new pleading, you submit an entire new document

1. The old pleading no longer has legal authority, it is superseded by the amended

pleading.

2. Amended complaints require a new responsive pleading, pending motions on the old

pleading are denied as moot.

3. Nomenclature: Complaint->Amended Complaint->2d amended complaint. “2d

amended answer to the third amended complaint.”

E. Reservations to amend (see Kinnsman) have no legal effect. 15a controls, not

reservations.

F. Stanard Examples

1. Original complaint was dismissed w/o prejudice, plaintiff ’s lawyer moved for leave to

amend. This is wrong! dismissal w/o prejudice automatically=leave to amend.

G. Foman v Davis; 6 reasons for denying leave to amend i.e. when justice does not so require

under 15a2. Only when you need leave to amend!

1. Undue delay in trying to amend (the consequence of delaying)

a) How much time has passed “why didn’t you do it in the first place?”

b) how far you’re into the case and what negative consequences will it have on

litigation

2. Bad Faith amendment

a) When moving party knows that this amendment lacks merit

3. Dilatory nature of amendment (your purpose is to delay.

a) You’re amending only to delay or stall

4. Repeated failures to cure

a) You’ve had plenty of chances to cure, but you haven't. 1 chance is probably the

minimum, the lawyer in Stanard had 2 opportunities, including with specific

instructions now hat to cure.

5. Undue Prejudice

a) prejudices are disadvantages/burdens that are greater than they would have been

had the plaintiff filed this originally. It becomes undue when the ordinary cost/

burden of the amendment becomes greater because of the time of the amendment.
6. Futility of Amendment

a) Even if amended, the paper would not survive a motion to dismiss so save us the

time and let it die.

b) You make the same arguments here that you would in a motion to dismiss. The

moving party has to attach the proposed amendment . “Jones said do not allow

Ford to end their claim because there’s no subject matter jurisdiction in this court

and therefore futile.