Several things to keep in mind in writing these (or any other) essays. First, focus on the question asked and do the analysis relevant to that. If you are asked about an affirmative defense, don't talk about counterclaims. There is no need to survey everything about pleading (such as time limits or defaults), just go to what you are asked to analyze. Second, it is not enough to throw out a bunch of rules--you need to apply them to the facts at hand. This question asked you to explain how each procedural approach might work, which required some application. Third, it is obvious from many answers that the writers are working from their class notes (and what they may or may not have heard correctly in class), rather than going to the primary source of the text of the rules. Fourth, key terms always should be defined. Here, for example, you should explain what an affirmative defense is (we discussed a good definition in class and on the blog).
Section A: Median 11.5; Mean 13.3
Section C: Median: 10; Mean: 8.7
Zervos v. Trump
A defendant must state its defenses to claims in short and plain terms. FRCP 8(b)(1)(A). A defendant can raise an affirmative defense, or avoidance, against a claim for relief, pursuant to FRCP 8(c). An affirmative defense provides “allegations or statements of new matter, in opposition to former pleading which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect.” Colloquially, through an affirmative defense, a defending party argues “yes, but”: “Yes, the facts in the complaint are true and ordinarily would subject me to liability, but there is another legal or factual issue that causes me not to be liable.” The defendant bears the burden of pleading the facts supporting the affirmative defense and the burden of persuasion on those facts at trial.
An affirmative defense contrasts with a “failure of proof” defense, in which the defendant denies the truth of the allegations in the plaintiff’s complaint (FRCP 8(b)(1)(B)) and puts the plaintiff to carry its burden of persuasion on the elements of the claim.
FRCP 8(c) lists several affirmative defenses that a party must include in its responsive pleading. But the Rule says possible affirmative defenses to be raised in an answer “includ[e]” those listed, indicating the list is non-exhaustive and that other affirmative defenses may be raised if recognized by applicable substantive law. These include, for example, qualified immunity (Iqbal).
Affirmative defenses interact with the concept of failure to state a claim upon which relief can be granted (FRCP 12(b)(6)). An affirmative defense may provide the reason that the pleading fails to state a claim—accepting the allegations in the Complaint as true, it still fails to state a claim because the legal and factual issues raised by the outside affirmative defense preclude the plaintiff from recovery and relief, despite what the claim-creating rule ordinarily provides.
Presidential Temporal Immunity qualifies as an affirmative defense that can be raised under FRCP 8(c). Although not listed in that Rule, it is (at least potentially) recognized by substantive law, having its origins in constitutional principles of separation of powers and the vesting of the executive power in the President. The defense involves new matter—the fact that defendant Donald J. Trump is the sitting President and the law of separation of powers—in opposition to the allegations of defamation in the complaint. Even admitting those facts, immunity prevents the President from being held liable to the plaintiff for defamation, at least while he serves as President. While the facts in the Complaint, taken as true, ordinarily might establish liability under the law of defamation, the separate legal issue of presidential immunity protects President Trump from suit and liability, at least now.
A defendant can raise an affirmative defense and have the court act on it in one of two ways.
The first, and more common, way is to include the defense and the facts supporting the defense in a responsive pleading, in this case, the Answer to the Complaint. In some cases, the defendant then can move for Judgment on the Pleadings on the affirmative under FRCP 12(c), arguing that the facts in all the pleadings establish the affirmative defense and require entry of judgment. In such a situation, the court will give the plaintiff an opportunity to file a Reply to an Answer (FRCP 7(a)(7)) to respond to the new facts alleged in support of the affirmative defense.
Once the plaintiff has responded, the court can look at all three pleadings (Complaint, Answer, and Reply to the Answer) and determine whether the allegations show a dispute over the facts supporting the affirmative defense. If the plaintiff denies the essential facts of the defense to create a dispute, the FRCP 12(c) motion must be denied. If the plaintiff admits the essential facts of the defense, the court then can consider the legal question of whether the affirmative defense exists and whether, on these undisputed facts, it has been established.
Here, we could file an Answer to the Complaint containing the Presidential Temporal Immunity defense, pleading in support that Trump was elected President on November 8, 2016, inaugurated on January 20, 2017, and now is the sitting President of the United States. If ordered to file a Reply to an Answer, the plaintiff almost certainly will admit those facts, since she cannot deny that he was elected or inaugurated, leaving no factual dispute. The court now must resolve the legal question of whether Presidential Temporal Immunity exists as a legally valid defense, on the undisputed fact that the defendant in this action is the sitting President.
A defendant also can raise an affirmative defense via a pre-Answer FRCP 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. On a 12(b)(6) motion, the court is limited only to facts appearing in the four corners of the complaint. This strategy therefore is reserved for “built-in defenses,” where the facts supporting the affirmative defense appear in the Complaint. In resolving a 12(b)(6) motion, the court takes all the non-conclusory facts in the Complaint as true—including the facts supporting the affirmative defense. The defendant thus can argue through that motion that, taking the facts in the Complaint as true, the affirmative defense is established, leaving the court to decide the legal question of whether the defense exists in law and thus whether the action should be dismissed. This option is not available, however, where the plaintiff did not plead in the Complaint the facts that could support the defense.