affirmative defense in District of Columbia

2025Bleck v. Power, 955 A.2d 712, 715 (D.C. 2008). 7 It has long been established that the statute of limitations is an affirmative defense that “must be set forth in a responsive pleading, and may be waived if not promptly pleaded.” Whitener v. WMATA, 505 A.2d 457, 458 (D.C. 1986) (citing Super.

2024Day v. McDonough, 547 U.S. 198, 202 (2006) (“Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant’s answer 17 or in an amendment thereto.”); see also Feldman v. Gogos, 628 A.2d 103, 104 (D.C. 1993) (“The statute of limitations is an affirmative defense which . . . must be set forth affirmatively in a responsive pleading and may be waived if not promptly pleaded” (alteration omitted) (quoting Whitener v. WMATA, 505 A.2d 457, 458 (D.C.1986)). 5 The Superior Court was therefore correct not to consider this argument at the summary judgment stage.

2024Day v. McDonough, 547 U.S. 198, 202 (2006) (“Ordinarily in civil litigation, a statutory time limitation is forfeited if not raised in a defendant’s answer 17 or in an amendment thereto.”); see also Feldman v. Gogos, 628 A.2d 103, 104 (D.C. 1993) (“The statute of limitations is an affirmative defense which . . . must be set forth affirmatively in a responsive pleading and may be waived if not promptly pleaded” (alteration omitted) (quoting Whitener v. WMATA, 505 A.2d 457, 458 (D.C.1986)). 5 The Superior Court was therefore correct not to consider this argument at the summary judgment stage.

2010There is no indication that appellants asserted a statute of limitations defense, see Feldman v. Gogos, 628 A.2d 103, 104 (D.C.1993) (“[T]he statute of limitations is an affirmative defense which, under [Super.

2022This court has long recognized in other contractual scenarios that “the failure to mitigate damages is an affirmative defense and the tenant has the burden of showing the absence of reasonable efforts to mitigate.” Norris v. Green, 656 A.2d 282, 287 (D.C. 1995).

2022This court has long recognized in other contractual scenarios that “the failure to mitigate damages is an affirmative defense and the tenant has the burden of showing the absence of reasonable efforts to mitigate.” Norris v. Green, 656 A.2d 282, 287 (D.C. 1995).

2018Bsharah v. United States , 646 A.2d 993 , 998 (D.C. 1994) (interpreting the licensed dealer exception to the crime of carrying a pistol without a license under D.C. law, and finding that, "[w]hen a defendant relies on a statutory exception as an affirmative defense to a criminal charge, the burden is on the defendant to bring himself or herself within the exception." (citing Middleton v. United States , 305 A.2d 259 , 261 (D.C. 1973) ). 10 This court analyzes self-defense under a similar framework: the government must prove the absence of self-defense only if some evidence in the case suggests

2012See Bsharah v. United States, 646 A.2d 998, 998 (D.C.1994) (“When a defendant relies on a statutory exception as an affirmative defense to a criminal charge, the burden is on the defendant to bring himself or herself within the exception.” (citing Middleton v. United States, 305 A.2d 259, 261 (D.C.1973))).

2011At that time, D.C.Code § 22-3007 (2001) (since amended) stated that “[cjonsent by the victim is a defense, which the defendant must establish by a preponderance of the evidence....” In Russell v. United States, 698 A.2d 1007 (D.C.1997), we upheqld the constitutionality of this statute, but cautioned “that the jury should be expressly instructed that it may consider the affirmative defense evidence when it determines whether the government has met its burden to prove all the elements of the offense beyond a reasonable doubt.” Id. at 1015-16 .

2011At that time, D.C.Code § 22-3007 (2001) (since amended) stated that “[cjonsent by the victim is a defense, which the defendant must establish by a preponderance of the evidence....” In Russell v. United States, 698 A.2d 1007 (D.C.1997), we upheqld the constitutionality of this statute, but cautioned “that the jury should be expressly instructed that it may consider the affirmative defense evidence when it determines whether the government has met its burden to prove all the elements of the offense beyond a reasonable doubt.” Id. at 1015-16 .

2022See Mayo v. Mayo, 508 A.2d 114, 115-16 (D.C. 1986) (“A statute of limitation is an affirmative defense which must be asserted in a responsive pleading before the trial court.

1992See, e.g., Mayo v. Mayo, 508 A.2d 114, 116 (D.C.1986) (statute of limitations is an affirmative defense, and failure to plead it results in its waiver); Graves v. United States, 490 A.2d 1086, 1098 (D.C.1984), cert. denied, 474 U.S. 1064 , 106 S.Ct. 814 , 88 L.Ed.2d 788 (1986) (prompt assertion of right to speedy trial is a significant factor in determining whether criminal defendant has been denied that right). .

2013See Stone v. McConkey, 761 A.2d 276, 277 (D.C.2000) (“[T]he affirmative defense of res judicata ... is subject[,] like other affirmative defenses[,] to waiver if not raised in the answer or timely asserted thereafter.” (citing Group Health Ass’n, Inc. v. Reyes, 672 A.2d 74, 75 (D.C.1996))).

2009See, e.g., Group Health Ass’n v. Reyes, 672 A.2d 74, 75 (D.C.1996) (noting that, absent certain exceptions inapplicable in that case, as well *618 as this one, a party that did not “amend, or seek leave to amend, its answer to plead res judicata before trial as an affirmative defense” had waived that argument); Cal. Code Civ.

2011Because "[t]he statute of limitations is an affirmative defense which ... may be waived if not promptly pleaded,” Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 734 (D.C.2000) (citations and internal quotation marks omitted), a matter is not legally subject to dismissal until the statute of limitations bar is pled.

2007As we said in Executive Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 734 (D.C.2000), “[t]he statute of limitations is an affirmative defense which ... must be set forth affirmatively in a responsive pleading and may be waived if not promptly pleaded” (citations omitted); see also Oparaugo v. Watts, 884 A.2d 63, 73 (D.C.2005).

2011“Recognizing the limited role of the courts in eminent domain jurisprudence, we are especially careful not to indulge baseless, conclusory allegations that the legislature [or executive branch] acted improperly.” See Franco, 930 A.2d at 171 (applying the Rule 12(b)(6) standard in evaluating the sufficiency of an affirmative defense).

2008R. 8(f) ("All pleadings shall be so construed as to do substantial justice.”); cf. Franco v. Nat’l Capital Revitalization Corp., 930 A.2d 160, 170 (D.C.2007) (irrespective of the title, when assessing the pleader’s affirmative defense, the court should also consider the factual allegations set forth in the pleader’s dismissed counterclaims). 12 .

2016To be sure, this court has acknowledged that a complaint may nonetheless be dismissed when affirmative defenses are “established on the face of the complaint.” Francis v. Rehman, 110 A.3d 615, 621 (D.C. 2015) (quoting Hafley v. Lohman, 90 F.3d 264 , 266 (8th Cir. 1996)).

2015An affirmative defense such as illegality can be the basis for granting a Rule 12(b)(6) motion to dismiss “only when the [defense] is established on the face of the complaint.” Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir.1996).

2014“Generally, [res judicata ] must be raised early in the life of a case[;] ... [otherwise the point of the doctrine — namely shielding parties from vexatious litigation and freeing judicial resources — is not fulfilled.” Mitchell v. Gales, 61 A.3d 678, 687 (D.C. 2013) (citations omitted). “[Njeither of these objectives is advanced where a party raises a res judicata defense ‘[ajfter a final judgment has been entered’; thus ‘it is most unlikely that a court could be persuaded to vacate the judgment so as to permit an assertion that could have been made earlier.’” Id. (citation omitted); see Gold

1993See Flippo Construction Co. v. Mike Park’s Diving Corp., supra, 531 A.2d at 267 (no prejudice where motion for summary judgment put non-movant on no *715 tice of the defense and allowed them an opportunity to respond); Goldkind v. Snider Brothers, supra, 467 A.2d at 472 (where “an affirmative defense is raised by motion at the pleading stage, courts will generally ignore the technical requirements” of the rule); Super.Ct.Civ.R. 8(c).

2025Nicklin v. Stonesdale Unit Owners’ Ass’n, 307 A.3d 477 , 488 (D.C. 2024) (“The doctrine of laches is an affirmative defense that applies only where the party invoking the doctrine shows ‘an undue and unexplained delay on the part of one party which works an injustice to the other party.’” (quoting Amidon v. Amidon, 280 A.2d 82, 84 (D.C. 1971))).

2024The doctrine of laches is an affirmative defense that applies only where the party invoking the doctrine shows “an undue and unexplained delay on the part of one party which works an injustice to the other party.” Amidon v. Amidon, 280 A.2d 82, 84 (D.C. 1971); see also Am.

2025See, e.g., Herrington v. United States, 6 A.3d 1237, 1245 (D.C. 2010) (stating that whether circumstance was affirmative defense is “a matter 7 of statutory interpretation”); cf. Smith v. United States, 279 A.3d 850 , 854 (D.C. 2022) (“The legislature has authority to establish crimes and define their elements.”); id. (within constitutional limits, whether circumstance is element of offense or sentencing factor to be determined by trial court is “a matter of statutory interpretation”).

2013In Herrington v. United States, 6 A.3d 1237 (D.C.2010), we invalidated the UA statute, as construed in Logan, insofar as it made proof of registration an affirmative defense.

2024A jury instruction “on the affirmative defense of entrapment [is warranted] when there is sufficient evidence of government inducement of the crime and a lack of predisposition on the part of the defendant to engage in that criminal conduct.” Daniels, 33 A.3d at 327 (quoting Minor, 623 A.2d at 1187 ); see Hampton, 425 U.S. at 489-90 . 16 B.

2011Analysis of Mr. Daniels’ Arguments A. Entrapment “A jury may be instructed on the affirmative defense of entrapment when there is sufficient evidence of government inducement of the crime and a lack of predisposition on the part of the defendant to engage in that criminal conduct.” Minor v. United States, 623 A.2d 1182, 1187 (D.C.1993) (citing Mathews v. United States, 485 U.S. 58, 63 , 108 S.Ct. 883 , 99 L.Ed.2d 54 (1988)) (emphasis in Minor).

2024See, e.g., Mitchell v. Gales, 61 A.3d 678, 683-87 (D.C. 2013) (“The affirmative defense of res judicata is subject, like other affirmative defenses, to waiver if not raised in 9 the answer or timely asserted thereafter.”) (brackets, ellipsis, and internal quotation marks omitted).

2014“Generally, [res judicata ] must be raised early in the life of a case[;] ... [otherwise the point of the doctrine — namely shielding parties from vexatious litigation and freeing judicial resources — is not fulfilled.” Mitchell v. Gales, 61 A.3d 678, 687 (D.C. 2013) (citations omitted). “[Njeither of these objectives is advanced where a party raises a res judicata defense ‘[ajfter a final judgment has been entered’; thus ‘it is most unlikely that a court could be persuaded to vacate the judgment so as to permit an assertion that could have been made earlier.’” Id. (citation omitted); see Gold

2020See id. at 1120 .

2013Cf. Hatch v. United States, 35 A.3d 1115, 1122 (D.C.2011) (explaining that an affirmative defense of consent to a prosecution for forcible sexual abuse "makes sense only in the unusual case,” because ordinarily "it is 'difficult to conceive [how] the government could establish force beyond a reasonable doubt yet the [defendant] could prove consent by a preponderance of the evidence' ”) (quoting Gaynorv.

2018See , e.g. , Hernandez v. United States , 853 A.2d 202 , 205 (D.C. 2004) (a defendant is entitled to a jury instruction on self-defense if there is "some evidence" of it); Parker v. United States , 155 A.3d 835 , 842 (D.C. 2017) (when a defendant presents evidence that he acted in self-defense, the government must prove beyond a reasonable doubt that he did not); Richardson v. United States , 98 A.3d 178 , 187 n.11 (D.C. 2014) (when a defendant has offered sufficient evidence to justify a jury instruction on self-defense, the burden shifts to the government to disprove defendant's self-defense

2009Hernandez v. United States, 853 A.2d 202, 205 (D.C.2004); see United States v. Bailey, 444 U.S. 394, 415 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980) (“[I]t is essential that the testimony given or proffered meet a minimum standard as to each element of the defense, so that, if a jury finds it to be true, it would support an affirmative defense”).

2016Rather, the application of this affirmative defense is “a question of fact, to be judged in light of all the circumstances surrounding a given transaction.” Shaw v. Marriott Intern., Inc., 474 F. Supp. 2d 141, 150-51 (D.D.C. 2007) (quoting Randazzo v. Harris Bank Palatine, N.A., 262 F.3d 663 , 669 n.1 (7th Cir. 2001)) (concluding that “[w]hatever the merits of” the voluntary payment defense, appellant was “certainly correct that it raises factual issues that cannot be resolved in the context of a motion to dismiss”).

2016Rather, the application of this affirmative defense is “a question of fact, to be judged in light of all the circumstances surrounding a given transaction.” Shaw v. Marriott Intern., Inc., 474 F. Supp. 2d 141, 150-51 (D.D.C. 2007) (quoting Randazzo v. Harris Bank Palatine, N.A., 262 F.3d 663 , 669 n.1 (7th Cir. 2001)) (concluding that “[w]hatever the merits of” the voluntary payment defense, appellant was “certainly correct that it raises factual issues that cannot be resolved in the context of a motion to dismiss”).

2016To be sure, this court has acknowledged that a complaint may nonetheless be dismissed when affirmative defenses are “established on the face of the complaint.” Francis v. Rehman, 110 A.3d 615, 621 (D.C. 2015) (quoting Hafley v. Lohman, 90 F.3d 264 , 266 (8th Cir. 1996)).

2016To be sure, this court has acknowledged that a complaint may nonetheless be dismissed when affirmative defenses are “established on the face of the complaint.” Francis v. Rehman, 110 A.3d 615, 621 (D.C. 2015) (quoting Hafley v. Lohman, 90 F.3d 264, 266 (8th Cir. 1996)).

2006LEXIS 4709 , at *20 (D.D.C.1992), is an affirmative defense to a suit for breach of contract which provides that “money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered by the payor solely because the claim was illegal.” Smith v. Prime Cable of Chicago, 276 Ill.App.3d 843, 847 , 213 Ill.Dec. 304 , 658 N.E.2d 1325, 1329 (1995).

2006LEXIS 4709 , at *20 (D.D.C.1992), is an affirmative defense to a suit for breach of contract which provides that “money voluntarily paid under a claim of right to the payment, and with knowledge of the facts by the person making the payment, cannot be recovered by the payor solely because the claim was illegal.” Smith v. Prime Cable of Chicago, 276 Ill.App.3d 843, 847 , 213 Ill.Dec. 304 , 658 N.E.2d 1325, 1329 (1995).

2016Co. v. Watson, 522 S.W. 2d 111 , 114 & n.1 (Mo. Ct. App. 1975) (―Payment is an affirmative defense . . . .‖); Estate of Kosuga v. Rockstar Media, LLC, No. 10.

2015Co. v. Watson, 522 S.W.2d 111 , 114 & n. 1 (Mo.Ct.App.1975) (“Payment is an affirmative defense.... ”) Estate of Kosuga v. Rockstar Media, LLC, No. 10.

1997However, in Patterson v. New York, 432 U.S. 197, 210 , 97 S.Ct. 2319, 2327 , 53 L.Ed.2d 281 (1977), the *1017 Court held that state legislatures may, within the limits of due process, exclude an element of an offense from the definition of that offense and make that element an affirmative defense which the defendant must prove by a preponderance of the evidence.

1997However, in Patterson v. New York, 432 U.S. 197, 210 , 97 S.Ct. 2319, 2327 , 53 L.Ed.2d 281 (1977), the *1017 Court held that state legislatures may, within the limits of due process, exclude an element of an offense from the definition of that offense and make that element an affirmative defense which the defendant must prove by a preponderance of the evidence.

2022See 24 D.C.M.R. § § 2344.1 (2022) (providing that “[a] licensee shall carry any pistol in a manner that it is entirely hidden from view of the public when carried on or about a person . . . .”). 22 “When a defendant relies on a statutory exception [such as the LEOSA exception] as an affirmative defense to a criminal charge, the burden is on the defendant to bring himself or herself within the exception.” Bsharah v. United States, 646 A.2d 993, 998 (D.C. 1994).

2018Bsharah v. United States , 646 A.2d 993 , 998 (D.C. 1994) (interpreting the licensed dealer exception to the crime of carrying a pistol without a license under D.C. law, and finding that, "[w]hen a defendant relies on a statutory exception as an affirmative defense to a criminal charge, the burden is on the defendant to bring himself or herself within the exception." (citing Middleton v. United States , 305 A.2d 259 , 261 (D.C. 1973) ). 10 This court analyzes self-defense under a similar framework: the government must prove the absence of self-defense only if some evidence in the case suggests

2021See Bowman, 412 A.2d at 12 & n.5. 34 Winfield, 676 A.2d at 6 -7 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). 16 Bowman, however, did not expressly say that its barrier to court-ordered pretrial disclosure of “the general nature of the defense” 35 was a constitutional ruling; rather, we concluded that “the trial court’s action amounted to a[] usurpation of power”; 36 “the trial judge’s order was outside the scope of express authority” 37 — at law, commonly called ultra vires (“beyond power”). 38 Bowman nonetheless was clear, providing Moghalu’s fundamental argument: absent a statute,

2021See Bowman, 412 A.2d at 12 & n.5. 34 Winfield, 676 A.2d at 6 -7 (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). 16 Bowman, however, did not expressly say that its barrier to court-ordered pretrial disclosure of “the general nature of the defense” 35 was a constitutional ruling; rather, we concluded that “the trial court’s action amounted to a[] usurpation of power”; 36 “the trial judge’s order was outside the scope of express authority” 37 — at law, commonly called ultra vires (“beyond power”). 38 Bowman nonetheless was clear, providing Moghalu’s fundamental argument: absent a statute,

2019We have further held that it is an abuse of discretion to deny a motion to amend and assert this defense absent a showing of significant prejudice. 6 See District of Columbia v. Tinker, 691 A.2d 57, 62 (D.C. 1997).

2019We have further held that it is an abuse of discretion to deny a motion to amend and assert this defense absent a showing of significant prejudice. 6 See District of Columbia v. Tinker , 691 A.2d 57 , 62 (D.C. 1997).

2015However, we have added an important clarification: "It is not correct that any evidence, however weak, entitles the defendant to an instruction; rather, there must exist evidence sufficient to find in the defendant's favor," or "[i]n other words ... evidence ... sufficient to create a prima facie defense.” Id. (emphasis added). 15 .See United States v. Bailey, 444 U.S. 394, 415 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980) ("[I]t is essential that the testimony given or proffered meet a minimum standard as to each element of the defense, so that, if a jury finds it to be true, it would support an af

2015However, we have added an important clarification: "It is not correct that any evidence, however weak, entitles the defendant to an instruction; rather, there must exist evidence sufficient to find in the defendant's favor," or "[i]n other words ... evidence ... sufficient to create a prima facie defense.” Id. (emphasis added). 15 .See United States v. Bailey, 444 U.S. 394, 415 , 100 S.Ct. 624 , 62 L.Ed.2d 575 (1980) ("[I]t is essential that the testimony given or proffered meet a minimum standard as to each element of the defense, so that, if a jury finds it to be true, it would support an af