Supreme Court Rules that Pleading General 12(b)(6) Defense Does Not Preserve Specific Affirmative Defenses
The Mississippi Supreme Court issued its first opinions for 2011 today, including an interesting opinion in Loggers, LLC v. 1 Up Technologies, LLC. Here is the Court's opinion.
Justice Graves wrote the Court's opinion.
The underlying case was a small breach of contract case in the Pearl River County Circuit Court. The case was tried before a special master.
At the close of plaintiff's case-in-chief, defendant moved for a dismissal under Miss. R. Civ. P. 12(b)(6) and 41(b) on the ground that the plaintiff was barred from bringing the suit under Miss. Code Ann. 79–29–1007(1). The statute relates to a foreign limited liability company having to be registered in the state to assert a cause of action.
The special master ruled that the defendant waive the affirmative defense by failing to raise it in its answer and then raising it for the first time during trial. The Circuit Court adopted the special master's report and added that a specific affirmative defense such as this cannot be raised by pleading rule 12(b)(6).
On appeal, defendant cited Howard v. Estate of Harper, 947 So. 2d 854 (Miss. 2006) and another case. In Howard, the Court found that a general Rule 12(b)(6) assertion in a motion to dismiss was sufficient to preserve an issue in a medical malpractice case. The Court rejected the argument, stating:
[defendant] cannot merely assert a general defense in its initial response to preserve any other defenses that might be asserted months or years later.
Chief Justice Waller and Justices Carlson, Kitchens, Chandler and Pierce concurred. Justice Randolph concurred in result only without separate opinion. Justices Dickinson and Lamar concurred in part and in result, without separate opinion.
My Take:
I really wish that the concurring Justices issued opinions. What is their problem with Justice Graves' opinion?
But at least there is an apparent solid six justice majority (5 if you don't count Graves due to expected departure to 5th Circuit) that defendants have to specifically plead and timely assert affirmative defenses. Howard kind of made the waiver law a joke. I consider this opinion to overrule Howard, but it does not clearly state that.
Cynics will say that this shows that different rules apply for doctors, since Howard was a medical malpractice case.
I'm going to miss some of the the flowery catch-all affirmative defenses I've noticed popping up in answers in the last couple of years.
For earlier posts on the waiver of affirmative defense issue, see here.
I'm going to miss some of the the flowery catch-all affirmative defenses I've noticed popping up in answers in the last couple of years.
Are those impaired? Your post suggests that it's merely the "fails to state a claim upon which relief can be granted" defense that the court ruled upon.
That seems correct -- it does nothing to place the plaintiff on notice.
But the catchall "preserve such further defenses as may appear applicable after discovery" seems pertinent, provided you plead the defense promptly after you discover the facts in question.
... Howard was a good op in some respects, but a bit confused here and there. One has to bear in mind the court's evident frustration with the Wilkes & McHugh "laundry list" complaint, which alleges everything without any tailoring to the particular plaintiff in question.
They already did this in the Transocean case several months ago. The court refused to apply a statute barring indemnity clauses in construction contracts because it was not specifically plead, even though it was raised on multiple occasions. Justice Graves dissented in the original opinion and concurred in the rehearing opinion. Of course, he also ignored the fact that the case was voluntarily stayed for years while a related case was on appeal to the Fifth Circuit...
Whoops, I should say that the Transocean majority did not make this holding. Judge Graves made that point.
... Another thing about Howard is, the defendants were nursing-home administrators, not doctors or even nurses. The Court allowed the affirmative defense that they couldn't be liable for med-mal. Had the defense not been so obvious, perhaps the Court would not have taken a shortcut to reach it.
In that regard, the problem with Howard is that it says the licensee of a nursing home isn't liable for med-mal. That has to be wrong, on the present state of things at least. The problem arose when MSDH wouldn't issue a license to a corporate entity, only to a person -- so admins ended up being the names on the license, as with the Howards.
Today however MSDH has caught up with the 19th century, and because a nursing home can be sued for med-mal (see MCA 15-1-36), the licensee, where that's the real entity operating the facility, has to be on the hook. Who else?