Answer to affirmative defenses not required

Civil Procedure

Cover Page
Vol. 25, No. 15
February 21, 2011

Affirmative defenses are not pleadings to which a party is to respond, even if a demand is made for such a response, the Michigan Court of Appeals ruled.

The decision means that filing an answer to a defendant’s affirmative defenses is “optional, not mandatory,” said Howard Yale Lederman of Norman Yatooma & Associates.

But, Andrew R. Jarvis of the City of Detroit Law Dept. said the decision contradicts the court’s other decision released just one week earlier.

In McCracken, et al v. City of Detroit et al. (Lawyers Weekly No. 07-75276, 6 pages), a group of white city of Detroit emergency medical services employees filed a discrimination suit against the city. The city filed affirmative defenses as part of its responsive pleadings, and demanded the plaintiffs file an answer to the defenses.

When the plaintiff chose not to reply, the city moved for the circuit court to deem the defenses admitted and summary disposition. The circuit court granted the city’s motions and dismissed the case.

In a per curiam decision, the Court of Appeals reversed the trial court, ruling the Michigan Court Rules don’t require that a party answer affirmative defenses, even if requested.

First, the court said, MCR 2.110 provides an exclusive and specific list of what is considered a pleading under the court rules. Affirmative defenses are not listed among the pleadings.

Second, the court noted that, while affirmative defenses are required as a “responsive pleading” under MCR 2.111, “they are not synonymous with answers and other pleadings and are defined separately from them within the Michigan Court Rules. ….”

“In other words, despite the language in MCR 2.111(F)(3) that affirmative defenses should be part of the responsive pleadings, affirmative defenses do not amount to a pleading by themselves nor do affirmative defenses demanding a reply count as a pleading requiring a response.”

The panel concluded that the trial court also wrongly deemed the defenses as admitted, and should have simply taken them as denied under MCR 2.111.

Lederman, whose practice represents both plaintiffs and defendants in litigation, said the practice of asking for a demand to affirmative defenses is somewhat common.

As a plaintiff, Lederman said, he can see answering affirmative defenses as part of various motions, but not in an “answer to affirmative defenses,” to defeat certain law-based defenses like the statute of limitations.

Despite the somewhat common usage of demands for answers to the defenses, most courts don’t use the failure to reply as a reason to dismiss the case, Lederman said.

“Judges seldom treated failure to reply to affirmative defenses on time as dispositive or decisive,” he said. “In my experience, judges often allowed late replies and really didn’t see this area as any big deal. Well, we ran into an exception here.”

But, Jarvis said, the Court of Appeals had recently dealt with the same issue and issued the exact opposite ruling in an unpublished decision, Donaldson v. Department of Agriculture (Lawyers Weekly No. 08-75180, 2 pages).

In that case, the plaintiff sued to compel the department to produce documents under the Freedom of Information Act. And like in this case, he failed to respond to defendant’s request to answer its affirmative defenses, which the Court of Appeals agreed was dispositive to his case.

“The trial court correctly ruled that plaintiff’s failure to respond to these averments in the face of a demand to do so resulted in plaintiff admitting to them,” the court wrote in Donaldson. “And because these admissions went to the heart of plaintiff’s claims, the trial court properly granted summary disposition on their basis.”

What’s puzzling, Jarvis said, is that Donaldson was decided just two weeks before McCracken.

“It’s almost the same identical circumstances. You have a demand for an answer, and they found that Vannoy [v. City of Warren], was applicable,” Jarvis said.

The Vannoy decision held that “failure to respond to affirmative defenses when a demand is made amounts to a concession of the truth of the affirmative defenses.” While the court in Donaldson followed Vannoy, the court in McCracken chose not to do so under MCR 7.215(J)(1), because the case was decided in 1968.

Jarvis said the affirmative defenses are required as part of the defendant’s answer and, thus, a response, if requested, should be required under MCR 2.110(A)(6), and 2.111(E)(5). McCracken, he said, renders those court rules meaningless.

He said the city is strongly considering appealing the decision to the Michigan Supreme Court.

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