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Rule 8(c) provides: 'In pleading to a preceding pleading, a party shall set forth affirmatively . . . waiver, and any other matter constituting an avoidance or affirmative defense.' The rule is intended to notify a party of the existence of certain issues, and its mandatory language has impelled us to conclude that a party's failure to plead an affirmative defense bars its invocation at later stages of the litigation. See Satchell v. Dilworth, 745 F.2d 781, 784 (2d Cir. 1984).
Rule 8(c) requires that ' . . . a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.' The failure to raise an affirmative defense timely constitutes a waiver.
Rule 8(c) first lists 19 specific affirmative defenses, and concludes with the residuary clause 'any other matter constituting an avoidance or affirmative defense.' In the years since adoption of the rule, the residuary clause has provided the authority for ...
