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Desandies v. Encore Grp. (USA), LLC, 2024 U.S. Dist. LEXIS 71580, 2024 WL 1704982 (April 19, 2024) (Wolson, J.).

Encore Group had to have a good faith basis to claim that the statute of limitations applies to one of the claims that Mr. DeSandies asserts against it. By its own admission, it doesn’t have that basis. Its Answer therefore violates Rule 11. I gave it a chance to correct this problem, and it refused. I will therefore strike Encore Group’s affirmative defenses, though it can seek leave to amend its answer to re-assert any for which it has a good faith basis.

Upon my review of the answer, it appeared that Encore Group asserted its first affirmative defense on a prophylactic basis, rather than because it thinks there is a claim in the case that the statute of limitations bars.

These improper assertions of affirmative defenses warrant sanctions. The assertion of prophylactic affirmative defenses is not harmless. It expands discovery in the case and makes it harder to get cases to resolution. A plaintiff’s lawyer faced with a multitude of prophylactic affirmative defenses must serve interrogatories to ferret out the factual basis for each defense. If there is not such a basis, the plaintiff’s counsel either has to file a motion or persuade defense counsel to withdraw that defense, all for a defense that should not have been in the case in the first place. Permitting such a practice would not help “secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P. 1. It would do just the opposite by adding to the proceedings.

Pleadings are not an opportunity for lawyers to throw things against the wall and see what sticks. Rule 11 requires lawyers to give some thought to the assertions that they include in pleadings before they file them. Defense lawyers might ask, “What are we to do?” And the answer is, assert the defenses for which you have a basis and then see how the case develops. If something new creates a reason to assert new affirmative defenses, then ask for leave to do that, either under Rule 15 or Rules 15 and 16, as appropriate. Encore Group and its counsel didn’t do that. I therefore impose sanctions and strike Encore Group’s affirmative defenses. An appropriate Order follows.