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Affirmative Defenses
Affirmative Defenses
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Sample Defenses Taken from Various Answers
AFFIRMATIVE DEFENSES
1. The Complaint fails to state a claim upon which relief
can be granted.
2. This Court lacks jurisdiction as Plaintiff seeks
equitable relief and jurisdiction and venue is properly vested in
the Chancery Court of Rankin County, Mississippi.
3. That the Plaintiff is guilty of the Doctrine of Unclean
Hands and is entitled to no relief whatsoever due to Plaintiff's
diversion of funds due to partnership.
4. Punitive damages must not be awarded unless Plaintiff
proves his case beyond a reasonable doubt in the determination of
a unanimous jury.
5. The prayer for punitive damages seeks to impose an
excessive fine within the meaning of the Excessive Fines Clause of
the Eighth Amendment to the Constitution of the United States.
6. This Defendant avers that any award of punitive damages
to the Plaintiff in this case would violate the procedural and/or
substantive safeguards provided to the Defendant under the Fifth,
Sixth, Eighth and/or Fourteenth Amendments to the Constitution of
the United States and/or under Article 3, Section 14 and Section
26 of the Constitution of the State of Mississippi, in that
punitive damages are penal in nature and, consequently, the
Defendant is entitled to the same procedural and/or substantive
safeguards accorded to criminal defendants.
7. This Defendant avers that it would violate the selfincrimination clause of the Fifth Amendment to the Constitution of
the United States of America and/or Article 3, Section 26 of the
Constitution of the State of Mississippi, to impose against the
Defendant punitive damages, which are penal in nature, yet compel
the Defendant to disclose potentially incriminating documents and
evidence.
8. This Defendant affirmatively alleges that, inasmuch as
the Plaintiff prays for punitive damages, an award of such damages
should be denied for the reason that such an award violates the
due process requirements of the Fourteenth Amendment and/or Fifth
Amendment of the Constitution of the United States of America and
Article 3, Section 14 of the Constitution of the State of
Mississippi in that:
a. Said damages are intended to punish and deter
Defendant and thus this proceeding is essentially criminal in
nature;
b. That Defendant is being compelled to be a witness
against itself in a proceeding essentially and effectively criminal
in nature, in violation of Defendant's right to due process and in
SECOND DEFENSE
Defendants Star Insurance Company and Worldwide Weather
Insurance Agency assert the defenses of insufficiency of process
and insufficiency of service of process pursuant to Rules l2(1)(4)
and 12(1,)(5), respectively.
FIRST DEFENSE AND MOTION TO STRIKE
This defendant moves this honorable court pursuant to Miss. R.
Civ. Pro. 12 to strike the words and its liability carrier from
paragraphs 13 and 14 of the complaint as immaterial and impertinent
matter improperly inserting mention of liability insurance in this
action.
SECOND DEFENSE
The facts not having been fully developed, Defendant further
affirmatively pleads the following affirmative defenses as may be
applicable in this action: accord and satisfaction, arbitration and
award, assumption of risk, contributory negligence, discharge and
bankruptcy, duress, estoppel, failure of consideration, fraud,
illegality, injury by fellow servant, laches, license, payment,
release, res ludicata, statute of frauds, statute of limitations,
waiver, and any other matter constituting an avoidance or
affirmative defense.
AFFIRMATIVE DEFENSES
7.
The Complaint fails to state a claim upon which relief
may be granted and, therefore, should be dismissed.
8.
The incident, which is the subject of this lawsuit
allegedly occurred at Jitney Premier, a subsidiary of Jitney
Jungle Stores of America, Inc. Therefore, the named Defendant
in this action should be "Jitney Jungle Stores of America,
Inc." and not "McCarty-Holman Co., d/b/a Jitney Jungle.
9.
The alleged injuries, if any, and damages, if any, of the
Plaintiff and the derivative injury and damages, if any of the
Plaintiff were proximately caused by a pre-existing condition
or injury and/or by actions of others or events separate,
distinct, unrelated and remote to any action or inaction of
this Defendant, which said separate distinct unrelated actions
of others or events or accidents were the sole proximate cause
of plaintiff's alleged injuries and damages, if any, for which
Defendant cannot be liable, or were such separate intervening
and superseding causes thereof as to absolve Defendant of any
responsibility or liability therefor.
10.
Plaintiffs's negligence was the sole cause or a contributing
FIRST DEFENSE
This Count lacks in personal jurisdiction over this defendant
and in accordance with the Mississippi Rules of Civil Procedure,
Rule l2(2), and on account thereof, this action should be dismissed
as against this defendant.
SECOND DEFENSE
There is insufficiency of process and insufficiency service of
process against this defendant and in accordance with the
Mississippi Rules of Civil Procedure, Rule l2(4) and Rule l2(5),
and on account thereof, this action should be dismissed as against
this defendant.
AND NOW, having denied any liability whatsoever to the
Plaintiff in the premises, this defendant would set forth the
following Special Affirmative Matters.
FIRST AFFIRMATIVE DEFENSE
This defendant denies each and every material allegation of
the Complaint filed herein against it by Plaintiff by which
Plaintiff seeks to impose liability upon it and affirmatively
pleads that it was/is guilty of no act or omission in the premises
and was/is in no way negligent, strictly liable or in breach of any
warranty, and is in no way tiable to Plaintiff herein.
SECOND AFFIRMATIVE DEFENSE
This action is barred by the applicable statutes of limitation
and governing substantive laws of the State of Mississippi.
THIRD AFFIRMATIVE DEFENSE
Plaintiff failed to observe and/or exercise ordinary care and
prudence for his own safety and personal well being, such conduct
or omission being the sole proximate cause of Plaintiff's injuries