There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure. For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense. Here is the text of the rule:
In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation. {Emphasis added.}
Why is this important? A defendant cannot simply say "there was insufficiency of service of process" or "I allege the comparative fault of Smith." No, the defendant must go further and set forth the facts that support that defense. Of course, the allegations of those facts can be changed via amendment under Rule 15, but the initial pleading raising the defense must include facts. If not, the court should strike the affirmative defense Rule 12.06 as insufficient.
A new decision of the Tennessee Court of Appeals makes it clear that Rule 8.03 means what it says. Allgood v. Gateway Health Systems, No. MC-CC-CV-MA-06-391 (Tenn. Ct. App. Sept. 22, 2009) did not let a defendant who asserted an insufficiency of process that was bare of any facts use that defense to seek dismissal of the case after the plaintiff could not longer cure the deficiency.
The Allgood decision will be addressed in more detail in the November issue of the Tennessee Trial Law Report. Click here to subscribe.