Don’t Neglect To Address Affirmative Defenses: What Plaintiffs Moving For Summary Judgment in Washington Need To Know
As most familiar with the litigation process know, litigation in real life bears faint resemblance to its portrayal in film, literature, or television. Unlike the prototypical legal drama (which culminates in suspense-filled verdict from the jury), the majority of lawsuits end in settlement or through a pre-trial motion, sometimes even before the attorneys ever set foot in a court room. And one of the most important tools for resolving a case before trial is a motion for summary judgment. Since the 1980s, federal courts and Washington State courts have largely applied the same standard—in theory at least—in resolving motions for summary judgment. So it might come as a surprise to hear that several recent Washington decisions have departed from the federal standard in at least one notable area: To what extent must a plaintiff seeking summary judgment on its claims preemptively address a defendant’s affirmative defense?
A brief discussion on affirmative defenses and the history of summary judgment in federal and Washington State courts helps put this development into context. Generally speaking, an affirmative defense is a defense that allows a defendant to avoid liability, in whole or part, even if the plaintiff otherwise has a valid claim for relief. One of the most common affirmative defenses is that statute of limitations. In a car accident case, for example, if the defendant runs a red light and hits the plaintiff, but the plaintiff files a lawsuit after the statute of limitations has expired, the plaintiff’s claim for negligence will be barred even though the plaintiff probably would have been able to win on that claim. One of the key differences with affirmative defenses, however, is that the defendant—rather than the plaintiff—bears the burden of proof.
As to summary judgment, in plain English, a motion for summary judgment allows a court to decide specific claims and defenses (and sometimes an entire lawsuit) before trial if certain criteria are met. In essence, a motion for summary judgment allows a trial court to consider evidence before trial and make a decision whether a reasonable judge or jury at trial could find for the plaintiff or defendant. If the court finds that no reasonable judge or jury could find for a party on certain claims or defenses, then those claims or defenses will be dismissed. Sometimes, summary judgment can resolve an entire case, but it can also result in dismissal of only certain claims and defenses, leaving only those genuinely in dispute for trial.
While summary judgment is often thought of as primarily a mechanism for defending a lawsuit, it can also be a powerful tool for plaintiffs to resolve specific issues in a case or prevail entirely before trial, particularly in commercial cases. For example, in a simple breach of contract case—e.g., the defendant borrowed money, promised to pay it back, and then failed to do so—a motion for summary judgment could resolve the entire case much more quickly and efficiently than going to trial. In both Washington and federal courts, a plaintiff can seek partial summary judgment on the issue of liability, leaving only the calculation of damages for trial. CR 56(a), (d). Finally, a plaintiff can also seek partial summary judgment on some or all of a defendant’s affirmative defenses, removing these defenses from consideration at trial.
Even in cases where a plaintiff’s motion for summary judgment does not fully resolve the case, a motion that establishes and/or dismisses can yield significant benefits by giving the plaintiff additional leverage in settlement negotiations and positioning the plaintiff for a better result if trial is necessary.
In the 1980s, the United States Supreme Court decided a “trilogy” of cases that made summary judgment even more important to modern litigation. Specifically, in Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986), the Court held that party can obtain summary judgment by simply challenging the opposing party’s ability to present sufficient evidence as to an issue on which they will bear the burden of proof at trial. The burden then shifts to the opposing party to marshal evidence sufficient to show that the issue is genuinely in dispute and must be resolved by a judge or jury weighing the evidence at trial. If the opposing party fails to marshal such evidence, however, then the court can dismiss a claim, defense, or entire case before trial. In essence, Celotex removed the obligation for parties “prove a negative” on issues where they do not have the burden of proof. Instead, if a party has the burden of proof, they must be prepared to marshal evidence that could carry that burden at trial or face dismissal.
Three years later, the Washington Supreme Court followed the United States Supreme Court’s lead and adopted the Celotex standard in Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989). In doing so, the Washington Supreme Court endorsed the same policy goal behind Celotex: That courts should spare litigants from unnecessary trials when there are no genuine issues of material fact for a judge or jury hearing the evidence to resolve. And the lesson from Washington’s adoption of Celotex is clear: in both Washington State and federal courts, litigants must be prepared to marshal sufficient evidence to support their claims even before trial; failure to do so will result in dismissal of the litigant’s claims or entire case.
Consistent with the logic and policy of Celotex, federal district courts have ruled that “[a] plaintiff moving for summary judgment is not obligated to negate affirmative defenses, but an affirmative defense will negate summary judgment where each element of the affirmative defense is supported by summary judgment evidence.” See, e.g., McCollough v. Johnson, Rodenberg & Lauinger, 587 F. Supp. 2d 1170, 1176 (D. Mont. 2008), aff’d sub nom. McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011); Valley Fresh Produce, Inc. v. W. Skyways, Inc., 17-CV-01450-PAB-KLM, 2019 WL 4695668, at *15 (D. Colo. Sept. 25, 2019). What this means is that, in federal court, a plaintiff has no obligation to pre-emptively address a defendant’s affirmative defenses. Instead, when the defendant has the burden of proof on an affirmative defense, the defendant must be prepared to come forward with actual evidence in support of that defense in opposing summary judgment—even if the plaintiff does not specifically seek to “negate” the defense at the outset.
This standard furthers a number of important policy goals. To start, it promotes parity between plaintiffs and defendants in litigation: since plaintiffs have the burden of proof on claims, and defendants have the burden of proof on affirmative defenses, it makes sense that both must be require to proffer evidence in support of their respective burdens to avoid summary judgment. It also helps streamline and improve the efficiency of litigation: if a plaintiff moves for summary judgment, and a defendant fails to even mention an affirmative defense in response, it does not make sense to burden the resources of the plaintiff and the court with addressing that defense. This becomes all the more important in complex cases or situations where a defendant serially pleads dozens (or hundreds) of affirmative defenses, many of which might be duplicative or legally meritless. Instead, the federal standard forces litigants to focus on the critical issues of a case.
Nevertheless, several recent Washington decisions have not followed federal cases on this issue. In Robbins v. Mason Cty. Title Ins. Co., 5 Wn. App. 2d 68, 84, 425 P.3d 885, 894–95 (2018), aff’d, (Wash. May 7, 2020), the court of appeals held that “[w]here, as here, the plaintiff does not request summary judgment on a number of affirmative defenses, CR 56(e) does not require the defendant to show an issue of fact concerning them.” The Washington Supreme Court subsequently upheld that decision, despite acknowledging that the defendant had in fact raised those defenses in opposing summary judgment. Robbins v. Mason Cty. Title Ins. Co., 195 Wn.2d 618, 636, 462 P.3d 430, 439 (2020). Under the federal standard explained above, the defendant could have still successfully opposed the plaintiff’s motion for summary judgment since the defendant at least attempted to explain why those defenses raised an issue of material fact that might preclude the plaintiff’s claim. But the court of appeals and Washington Supreme Court both determined that the defendant did not even need to justify its affirmative defenses since the plaintiff had not specifically requested summary judgment on them. Later that year, Division I of the court of appeals reached a similar result in Evanston Ins. Co. v. Penhall Co., 13 Wn. App. 2d 863, 870–71, 468 P.3d 651, 656 (2020), review denied, 196 Wn.2d 1040, 479 P.3d 713 (2021) (“Evanston’s motion for summary judgment did not specifically address the affirmative defenses. Given that WRS did not state with particularity that it was seeking summary judgment on the issue of affirmative defenses, Penhall cannot be said to have been given notice that summary judgment on the affirmative defenses was the relief sought.”).
Although there might be a fair debate on which standard is better policy, the lesson of Robbins and Evanston is clear: In Washington State courts, plaintiffs considering a motion for summary judgment on their claims must be prepared to affirmatively address and overcome affirmative defenses either in the same motion or earlier in the case. Failure to do so could result in further (avoidable) litigation on the defendant’s affirmative defenses or reversal by the court of appeals. A plaintiff seeking summary judgment can no longer assume they have no obligation to pre-emptively “negate” affirmative defenses, as in federal court.
Given this additional procedural burden, plaintiffs facing a barrage of affirmative defenses should consider utilizing additional procedural tools to disposes of these defenses before seeking summary judgment on their actual claims. For example, an early motion to strike affirmative defenses under CR 12(f) might be able to dispose of some affirmative defenses on the pleadings well in advance of summary judgment. Another option might be to file an early motion for partial summary judgment targeted at the defendant’s affirmative defenses, followed by a later motion addressing the plaintiff’s claims. At the latest, however, a plaintiff needs to be sure to specifically request dismissal of the defendant’s affirmative defenses at the same time they move for summary judgment on specific claims. Otherwise, the plaintiff might be in store for a surprise at trial or disappointment on appeal.
By Jacob M. Knutson – Jeffers, Danielson, Sonn & Aylward, P.S.