Re: 3-13-2003 post-being sued after sol. Whats this

Posted by lawguy (68.119.155.69) on March 13, 2003 at 22:23:00:

In Reply to: Re: 3-13-2003 post-being sued after sol. Whats this posted by Why Chat on March 13, 2003 at 20:52:14:

If the plaintiff has stated the date the cause of action acrues in his complaint, and that date is beyond the limitations period, then the defendnat should move for a dismissal for failure to state a claim upon which relief may be granted, in lieu of filing an answer. In ruling on such a motion, the court will look only to the pleadings and will not receive any evidence outside the pleadings. In other words, no evidence is requird of either party. If evidence is received, it will be converted to a motion for summary judgment.

If the motion to dismiss is resolved unfavorable for the defendant, the defendant may then file an answer, usually within ten days of the order denying the motion. See Rule 12 of the FRCP or corresponding state rule.

Your understanding of the discovery process and of affirmative defenses is wrong. Affirmative defenses are defenses that need to be proved by the defendant, and if so proved, they will bar the plaintiffs claim even if the plaintiff satisfies his burden of proof as to the allegations in his complaint.

It works like this. Plaintiff makes his complaint. Certain facts will become facts in issue based on the plaintiffs claim. The plaintiff and defendant may then submit evidence on these issues of fact. If the defendant pleads an affirmative defense, then the facts of the affirmative defense become facts in issue as well. Its like adding issues to the case.

The plaintiff need not "disprove" an affirmative defense, the burden is on the defendant to prove the defense. The plaintiff will need to offer evidence against the defense if the defendant offers positive evidence in favor of the defense. But that gets into the shifting burdens of production, and is a topic too complex to deal with in this post.

As for discovery, a defendant (or any party or person) may indeed be forced to disclose information or other documents adverse to their position. This happens all the time, and is one of the major functions of discovery. (Perhaps you are confusing a criminal defendants right against self incrimination? There is no corresponding right in a civil suit.) The only limits to discovery are 1) the information is privileged, 2) production of the information would be unduly burdensome, 3) the requested information is not "reasonably calclulated to lead to the discovery of relevant evidence" and 4) the request does not conform to the procedural rules for obtaining discovery. See generally Rules 26-35 of the FRCP and corresponding state rules.

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