David H. Taylor

Document Type



The complications involved in addressing whether Rule 11 sanctions on plaintiff are appropriate in an instance where affirmative defenses are available to defendant are addresses in this article. The federal court’s different approaches to this issue, yes to sanctions, no to sanctions, and sometimes sanctions, are discussed. The Fourth Circuit’s decision in Brubaker v. City of Richmond and its approach on with respect to imposing sanctions are discussed at length. Souran v. Travelers Ins. Co. is discussed as an example of courts not sanctioning plaintiffs where affirmative defenses existed. When addressing the sometimes or middle-ground approach White v. General Motors Corp. is evaluated. The discussion of a middle ground approach evaluates the possibility of sanctions when the affirmative defense was “obvious.” The challenges of defining obvious are considered. In addition to determining what is obvious this article highlights that requiring a plaintiff to account for affirmative defenses that are not part of the substantive claim is in opposition to the Rules Enabling Act, 28 U.S.C. § 2072(b), which prohibits a procedural rule from “abridg[ing], enlarg[ing], or modify[ing] a substantive right.” Burdens and challenges of plaintiffs and defendants in addressing the difficulty of dealing with filed actions subject to affirmative defenses are addressed. A proposal somewhat of the middle-ground nature is provided whereby plaintiffs that file an action in which an affirmative defense is asserted must on their own dismiss the action, thus eliminating the need for defendant to do so through what may amount to a summary judgment motion involving far more of the parties’ and courts’ resources than is necessary.

Publication Date


Original Citation

David H. Taylor, Filing With Your Fingers Crossed: Should a Party Be Sanctioned for Filing a Claim to Which There is a Dispositive, Yet Waivable, Affirmative Defense?, 47 Syracuse L. Rev. 1037 (1997).


College of Law

Legacy Department

College of Law





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