In federal court, as in California state court, the affirmative defenses you list in your Answer will depend on an individualized analysis of the complaint and the facts of the case. Reference to treatises such as California Affirmative Defenses may be helpful. There are no mandatory affirmative defenses that must appear in a federal court Answer. However, you should check the list of suggested affirmative defenses set forth in FRCP 8(c)(1), which reads:
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:
• accord and satisfaction;
• arbitration and award;
• assumption of risk;
• contributory negligence;
• duress;
• estoppel;
• failure of consideration;
• fraud;
• illegality;
• injury by fellow servant;
• laches;
• license;
• payment;
• release;
• res judicata;
• statute of frauds;
• statute of limitations; and
• waiver.
“Injury by fellow servant”? Sounds a defense from the 1800s. Of course, you should also include language reserving your right to assert additional affirmative defenses as you discover them. If you need to, you can move under FRCP 15 to amend your Answer.
