Health Care

Key Points:

• Affirmative defenses that do not give rise to a good faith basis to plead such defenses violate Federal Rule of Civil Procedure 11.
• A court may impose sanctions for violating Federal Rule of Civil Procedure 11.
• The Federal Rules of Civil Procedure give other options to filing an answer without a factual basis when there is not enough time to conduct an investigation.

It is common for lawyers to want plead any and all affirmative defenses in answers to complaints in order to prevent a waiver. However, the Federal Rules of Civil Procedure do not allow this tactic or the assertion of boilerplate affirmative defenses. Specifically, Rule 11 of the Federal Rules of Civil Procedure states that a lawyer who presents to the court a “pleading, written motion, and other paper” confirms “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the “claims defenses and other legal contentions are warranted by existing law” and that the “factual contentions have evidentiary support after a reasonable opportunity for further investigation or discovery.” Fed. R. Civ. P. 11(b)(2), (3). If Rule 11 is violated, a lawyer may be sanctioned by the court. See Fed. R. Civ. P. 11(c)(1), (3).

In Greenspan v. Platinum Healthcare Group, LLC, 2021 WL 978899 (E.D. Pa. Mar. 16, 2021), the court imposed sanctions under Rule 11 by striking affirmative defenses from an answer, without prejudice. The case arose out of a fall suffered by Ruth Greenspan at a Platinum Healthcare facility due to the alleged negligent care provided by the facility, which caused Ms. Greenspan’s death. According to the court’s opinion, a complaint was filed by the Administrator of the decedent’s estate against Platinum Healthcare and others on November 23, 2020. The plaintiff served Platinum Healthcare on December 7, 2020, which would have made their answer due on December 28, 2020. However, Platinum Healthcare did not file an answer by the deadline. Then, on January 28, 2021, the court issued an order directed to the plaintiff, stating that if he did not seek a default by February 22, 2021, the case would be dismissed for failure to prosecute. Thereafter, on February 22, 2021, Platinum Healthcare filed an answer, asserting 25 affirmative defenses, including: lack of personal jurisdiction, lack of subject matter jurisdiction, the plaintiff’s execution of a jury waiver or an arbitration agreement, comparative or contributory negligence, assumption of risk, the statute of limitations, res judicata or collateral estoppel, and accord and satisfaction.

The court opined that the defendant failed to aver any allegations or provide any facts or evidence that would give rise to a good faith basis to plead the defenses asserted. Rather, the court found that they were raised to prevent waiver. The court held that the defendant’s affirmative defenses violated Rule 11 because they were pleaded with conditional language, signaling to the court that the defendant did not have evidentiary support as to the assertion of its defenses.

The court went on to further reject two of Platinum Healthcare’s arguments in its memorandum defending its answer. First, Platinum Healthcare stated that the assertion of the above-named affirmative defenses was supported through experience in defending other similarly situated health care providers in similar cases, as these affirmative defenses often arise throughout the course of discovery. The court opined that Rule 11 does not allow counsel to merely “assert defenses that might apply based on experience in a particular field. It only allows affirmative defenses that the evidence supports in this case.” Second, Platinum Healthcare attempted to further defend its answer by stating that their counsel had became aware of the case just 12 days before filing the answer and that its investigation of the facts was reasonable given the short amount of time it had to file its answer. The court stated that Rule 11 allows for a bit of factual inaccuracy, but “a short time to investigate does not obviate the requirement that a lawyer have a good faith basis to contend that there is an evidentiary basis for each affirmative defense that is in an answer.” Therefore, the court concluded that Platinum Healthcare did not meet that requirement.

The court opined that stating such boilerplate affirmative defenses is harmful and magnifies discovery in cases, making it harder for them to come to a resolution. It compels a plaintiff’s lawyer to serve discovery to determine the factual basis for each affirmative defense that can result in motions to withdraw certain defenses—which tacks unnecessary time onto the litigation—for affirmative defenses that should not have been asserted to begin with.

The court reminded lawyers that there are options to comply with Rule 11, such as asking plaintiff’s counsel and/or the court for a brief extension to file an answer in order to conduct a reasonable investigation of the facts. Also, an answer without affirmative defenses can be filed and then amended pursuant to Fed. R. Civ. P. 15(a)(1)(A). The court even goes further to state that Federal Rule of Civil Procedure 15(a)(2) orders that courts “freely give leave when justice so requires.” With these options in mind, the court stated that “the answer is never to file an answer—or any other pleading—without a factual basis.”

For a defense lawyer, it is important when asserting affirmative defenses in federal court that he or she have a good faith basis to plead such defenses. Otherwise, one might find oneself in the unfortunate situation of defending a Rule 11 motion.

*Holli is an associate in our King of Prussia, Pennsylvania, office. She can be reached at 610.354.8258 or hkbott@mdwcg.com.

_{Defense Digest, Vol. 27, No. 4, September 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}