Answer, Affirmative Defenses, and Counterclaims

AuthorChadwick A. McTighe
Few clients like answers (if they can be said to like any pleading). They
prefer not to have been sued in the rst place. When avoiding litigation is
impossible, however, the next best thing is to have the suit dismissed at the
outset. Therefore, the rst instruction from many clients upon hiring coun-
sel to defend against the complaint is to nd a way to get rid of it (perhaps
even an express instruction to le a motion to dismiss). Many litigators
similarly seem to have a default assumption that a motion to dismiss will
be led almost before they read the complaint. For some, ling an answer
thus may seem like a sign of defeat, the result of a failed attempt to escape
the case before having to engage in prolonged and expensive discovery,
motion practice, and the many other undesirable components of a lawsuit.
Of course, as any litigator knows, motions to dismiss do not always suc-
ceed and sometimes cannot be led at all. Even in federal court, where Bell
Atlantic Corp. v. Twombly
and Ashcroft v. Iqbal
establish a plausibility
pleading standard seemingly higher than the standards imposed by many
1. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
2. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
Answer, Afrmative
Defenses, and
Chadwick A. McTighe
Nelson_BizTorts_20140514_15-35 Confirmation Pass.indd 93 8/12/14 10:25 AM
state courts, motions to dismiss often are denied. In some cases, a good
faith motion to dismiss will not even be possible. In others, the grounds for
a motion to dismiss may be so tenuous that prudence counsels forgoing the
opportunity to le a document that will do little more than undermine the
credibility of the defendant and its counsel.
Business torts, in particular, can be difcult to dispose of through a
motion to dismiss. Fiduciary duty claims, for example, frequently can sur-
vive a motion to dismiss because of the factual and legal analysis required
to determine whether such a duty exists (even before considering any other
elements of the claim).
Tortious interference claims (in their various forms)
also can be difcult to dismiss because the elements of such claims, such as
proof of “improper” interference, can require consideration of fact-intensive
factors not likely to be subject to resolution on a motion to dismiss.
it can be especially difcult to obtain outright dismissal of many business
tort claims, knowing how to draft a proper answer is especially important
for attorneys litigating such claims.
Given the critical nature of the answer, attorneys often pay surpris-
ingly little attention to it. Many unfortunately tend to treat the answer
as a procedural necessity that can be thrown together quickly, led, and
forgotten—after all, no one reads them anyway, right? Too many answers
led by different attorneys in different cases look like carbon copies—a
series of generic denials followed by a list of boilerplate afrmative defenses
stated in conclusory terms. Admittedly, answers are somewhat formulaic by
nature, and the provisions of Rule 8 provide few opportunities for creative
pleading (nor would it necessarily be useful, or advisable, to stray from the
Rule). That said, following a basic formula is a far cry from simply cobbling
together generic denials and boilerplate afrmative defenses. The answer is
important, and it is unwise to give it too little thought.
3. See, e.g., In re Cardinal Health ERISA Litig., 424 F.Supp.2d 1002, 1030 (S.D. Ohio
2006); In re Electronic Data Sys. Corp., 305 F.Supp.2d 658, 665 (E.D. Tex. 2004).
4. See R (S)  T ch. 37, introductory note (1979); id. §§766–
67; Prime Contr., Inc. v. Wal-Mart Stores, Inc., No. 06-383-JBC, 2008 U.S. Dist. LEXIS 56449,
at *19 (E.D. Ky. July 22, 2008) (holding that questions of good faith, improper purpose, and
motive are questions of fact).
B  T: A P  G   L
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