Fulton DA's Office presents oral argument before U.S. Supreme Court in case addressing whether late-raised affirmative defenses are permissible at summary judgment

Client(s) Fulton Judicial Circuit District Attorney's Office

Jones Day presented oral argument on behalf of the Fulton Judicial Circuit District Attorney's Office before the U.S. Supreme Court in a case addressing the question whether a defendant may assert an affirmative defense at summary judgment, where it failed to plead that defense in its answer as required by Rule 8, but there is no prejudice to the plaintiff due to the delay.

In 2020, the petitioner sued the DA's Office under Title VII. The DA's Office moved for summary judgment, arguing that petitioner did not satisfy Title VII’s statutory requirements. In response, the petitioner argued that the DA's Office was trying to raise an affirmative defense, which it could not do because it had failed to plead the defense in its answer. The district court held that the DA's Office could proceed with the unpleaded defense because the petitioner suffered no prejudice from the DA Office's failure to plead it in its answer. On the merits, the district court agreed that the facts supporting the unpleaded defense were undisputably established during discovery and granted summary judgment for the DA's Office. The Eleventh Circuit affirmed. The petitioner sought certiorari, contending that a defendant permanently waives all unpleaded affirmative defenses, even if the plaintiff suffers no prejudice at all. After the Supreme Court granted certiorari, Jones Day was retained to defend the decision below. At the Supreme Court, Jones Day will argue that text, precedent, history, and the structure of the Federal Rules all confirm that courts can consider unpleaded affirmative defenses at summary judgment, so long as there is no prejudice to the plaintiff—a rule in keeping with the Federal Rules' express, animating principles of elevating a fair, correct decision on the merits over hypertechnicality.

Younge v. Fulton Jud. Cir. Dist. Att'y's Off., No. 25-352 (U.S.)