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On the question of whether an affirmative defense can be first raised, in the absence of an answer, by a motion for summary judgment, there is an apparent tension between Rules of Civil Procedure 8(c) and 56.


 - Rule 8(c) requires a party to set forth in a responsive pleading 'any . . . matter constituting an avoidance or affirmative defense' including, among other numerous affirmative defenses, the statute of limitations. Rule 8(c) provides in pertinent part: 'In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitations . . . and any other matter constituting an avoidance or affirmative defense. Such pleading shall contain a short and plain statement of any matter constituting an avoidance or affirmative defense sufficiently particular to give the court and the parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved.'


 - Rule 56, on the other hand, provides that a defending party 'may, at any time, move with or without supporting affidavits for a summary judgment. . . .' Rule 56(b) provides: '(b) For defending party. -- A party against whom a claim, counterclaim or ...

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