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Affirmative Defenses

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slade69

Member
What is the name of your state? California

In my ongoing legal adventure, the defedants attorney finally forwarded his answer to my complaint. This was after I submitted a MOTION FOR NO ANSWER DEFAULT JUDGMENT. At the end of the complaint he listed the affirmative defenses that they are claiming. Basically he copied and pasted every one that is listed in Federal Rules of Civil Procedure. In looking over these some contradict others and some just don't apply. Is this a common procedure for the defense? Just throw them all at the Plaintiffs and see if one sticks.

My wife and I have filed suit Pro Se and find this to be a little confusing. :confused:
 


dcatz

Senior Member
Is this a common procedure for the defense? Just throw them all at the Plaintiffs and see if one sticks.

Unfortunately, it’s more common than it should be and, unfortunately, is more tolerated by some judges than others. (Big hand for the judge who sent an attorney to the law library for a day to revise an Answer containing personal injury defenses to a breach of contract cause of action or have it stricken!)

You’re in Federal Court. You may have to tolerate more leniency.

It seems that your case is in the early stages and there probably have been no orders circumscribing discovery. When receiving everything-but-the-kitchen-sink Answers, [some people] like to turn it around on opposing counsel by way of Interrogatories directed to each Defense:

“State with specificity sufficient to support a Request to Produce, each and every fact upon which you rely in support of the assertion that “xxxxxxxxxx”, as alleged in the First Affirmative Defense of the Answer on file herein”. (optional) If you will do so without a Request to Produce, attach a copy of each and every document evincing said assertion to your response to this Interrogatory No. 1.”

Cut and paste 20-30 times as needed and promptly serve warm. It tends to winnow the scope of the case.
 

VeronicaLodge

Senior Member
some defenses are waived if not asserted in the first response so people assert them even if they dont apply just in case as the case progresses they could have been.
 

slade69

Member
interesting defenses

I think some of the funnier ones were:

Laches: I had to file a motion for a no answer default judgment in order to obtain a copy of their answer.

Statute of Limitations: It's a malpractice suit and I filed it within 8 months of the occurance. 1 month after a judge said, "put it in writing"

Injury by Fellow Servant: State Bar of California Rule 3-110 3rd paragraph (He has claimed that late filed paperwork was due to vacations and sickness in his office)

And more.

Can I claim Overtry :D
 

slade69

Member
no response

I tried the above and have not received a response. It has been over a month. How long should I give? What would be the recourse?
 

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