Failure to Assert Affirmative Defense — Waiver or Constructive Amendment of Answer by Raising Defense in Motion for Summary Judgment? — Factors — Good Quote

Sky Harbor Air Serv. v. Reams, 2012 U.S. App. LEXIS 14899 (10th Cir. July 20, 2012):

The illegality of a contract is a defense that "a party must affirmatively state" in a pleading. See Fed. R. Civ. P. 8(c)(1); see also Int'l Bhd. of Elec. Workers, Local Union Nos. 12, 111, 113, 969 v. Prof'l Hole Drilling, Inc., 574 F.2d 497, 500 (10th Cir. 1978). The "best procedure is to plead an affirmative defense in an answer or amended answer." Ahmad, 435 F.3d at 1202. But if a party has not formally moved to amend its answer under Rule 15(a) of the Federal Rules of Civil Procedure, a district court may allow the party to "'constructively' amend [its] answer," such as by raising an affirmative defense in a motion for summary judgment. Id.

Courts should consider several factors in determining whether to allow a party's constructive amendment. A primary consideration is whether the opposing party will suffer prejudice. Id. In addition, denial of a proposed amendment is appropriate if the amendment is an attempt to make a pleading a "moving target" or "to salvage a lost case by untimely suggestion of new theories." See Minter v. Prime Equip. Co., 451 F.3d 1196, 1206 (10th Cir. 2006) (quotations omitted). "[A] motion to amend may also be denied on grounds such as undue delay, bad faith or dilatory motive." Ahmad, 435 F.3d at 1202 (quotations omitted).

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