affirmative defense in Delaware

2025“Laches is an affirmative defense that the plaintiff unreasonably delayed in bringing suit after learning of an infringement of [their] rights.” Levey v. Brownstone Asset Mgmt., LP, 76 A.3d 764, 769 (Del. 2013).

2025“Laches is an affirmative defense that the plaintiff unreasonably delayed in bringing suit after learning of an infringement of [their] rights.” Levey v. Brownstone Asset Mgmt., LP, 76 A.3d 764, 769 (Del. 2013).

2026C. § 8106. 14 Reid v. Spazio, 970 A.2d 176 , 182–83 (Del. 2009). 15 See Quiller v. Barclays American/Credit, Inc., 11th Cir., 727 F.2d 1067, 1069 (1984) (“Nevertheless, a complaint may be dismissed under Rule 12(b)(6) when its own allegations indicate the existence of an affirmative defense, so long as the defense clearly appears on the face of the complaint.”).

2025Mar. 27, 2024) (quoting Reid v. Spazio, 970 A.2d 176, 183 (Del. 2009)). “[U]nless it is clear from the face of the complaint that an affirmative defense exists and that the plaintiff can prove no set of facts to avoid it, dismissal of the complaint based upon an affirmative defense is inappropriate.” Stephen G.

2024Aug. 18, 2006) (barring defendants from relying on an exculpation clause where defendants raised the defense, which is “in the nature of an affirmative defense,” after discovery was closed and after plaintiffs had shaped their trial plans, making it prejudicial to the plaintiffs (quoting Emerald P’rs v. Berlin, 726 A.2d 1215, 1223 (Del. 1999))); Zaman v. Amedeo Hldgs., Inc., 2008 WL 2168397 , at *15 (Del.

2020Delaware Supreme Court precedent at the time indicated that a court’s ability to assess the availability of exculpation at the pleading stage depended on the standard of review, and that a court could not dismiss a defendant based on exculpation at the pleading stage if entire fairness applied.14 Under this framework, exculpation operated as an affirmative defense, and director defendants could “avoid 14 Compare Emerald P’rs v. Berlin, 726 A.2d 1215, 1223 (Del. 1999) (holding that in a challenge to a transaction with majority stockholder to which entire fairness applied, the court could not ap

2024The LLC Agreement not only empowers Star Infra to use its “sole and absolute discretion” to set “terms and conditions” of the new CEO’s employment.134 It also 130 Restatement (Second) of Contracts § 203(c) (1981); see DCV Hldgs., Inc. v. ConAgra, Inc., 889 A.2d 954, 961 (Del. 2005) (“[W]here specific and general provisions conflict, the specific provision ordinarily qualifies the meaning of the general one.”). 131 JX 152 at 29-30. 132 Def.’s Post-trial Br. 30-33. 133 Id. at 30. 134 LLC Agreement § 8.3(a). 24 permits it to exercise its discretion without consideration of other members’ or the C

2024Nov. 17, 2023) (citing DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 958 (Del. 2005)). 55 Welgo styled its fraud allegation as an affirmative defense.

2021Although the evidence would invite a predictive inference (ie., suggesting what N.D.’s mother would have done rather than what she in fact did on a particular occasion), the inference violates the spirit of 404(b), which is to “forbid[] the proponent ... from offering evidence of . . . misconduct to support a general inference of bad character.” Getz v. State, 538 A.2d 726, 730 (Del. 1988). 72 See id. at 71:7-71:14; see, e.g., id. at 68:19-21 (“The . . . issue is when did [Plaintiff] learn of the HIV diagnosis for [N.D] and what role that may have played.”); id. at 70:22—71:6 (“[T]here are ref

2001See id. (distinguishing a case in which the prosecution offered bad act evidence to rebut an anticipated entrapment defense "that never actually materialized"). [25] Getz, 538 A.2d at 734 . [26] 11 Del.C. § 432(a) provides: "it is an affirmative defense that the accused engaged in the proscribed conduct because the accused was induced by a law-enforcement official or the law-enforcement official's agent... to engage in the proscribed conduct ... when such person is not otherwise disposed to do so." [27] Although D.R.E. 404(b) does not explicitly permit evidence of prior bad acts to prove predi

1990Tydings v. Loewenstein, Del.Supr., 505 A.2d 443, 446 (1986); City of Wilmington v. Spencer, Del.Supr., 391 A.2d 199, 203 (1978); Super.Ct.Civ.Rule 8(c).

1988See City of Wilmington v. Spencer, Del.Supr., 391 A.2d 199 (1978); see also 2A Moore’s Federal Practice, 118.27[3]; Mayo v. Mayo, D.C.App., 508 A.2d 114 (1986); LaBounty v. LaBounty, R.I.

2017The statute of limitations is an affirmative defense that is normally raised in an answer.11 Generally, if a defendant does not plead an affirmative defense, that defense is waived.12 A defendant seeking judgment on a statute of limitations defense usually does so by way of a motion for summary 7 Id. 8 See Desert Equities, Inc., 624 A.2d at 1205 ; Warner Commc’ns, Inc., 583 A.2d at 965 . 9 Del.

2017The statute of limitations is an affirmative defense that is normally raised in an answer.11 Generally, if a defendant does not plead an affirmative defense, that defense is waived.12 A defendant seeking judgment on a statute of limitations defense usually does so by way of a motion for summary 7 Id. 8 See Desert Equities, Inc., 624 A.2d at 1205 ; Warner Commc’ns, Inc., 583 A.2d at 965 . 9 Del.

2023Motors Corp. v. Wolhar, 686 A.2d 170, 172 (Del. 1996) (stating that Superior Court’s decision to strike an affirmative defense decided a question of law and that “[t]herefore, the applicable standard of review is de novo or plenary”). 31 Reserves Mgmt.

2023Motors Corp. v. Wolhar, 686 A.2d 170, 172 (Del. 1996) (stating that Superior Court’s decision to strike an affirmative defense decided a question of law and that “[t]herefore, the applicable standard of review is de novo or plenary”). 31 Reserves Mgmt.

2021Ct. Aug. 7, 2012) (“Ordinarily a defendant may amend a pleading to assert an affirmative defense even where the statute of limitations or other considerations would bar the assertion of a substantially similar counterclaim.”); PNC Bank, Del. v. Turner, 659 A.2d 222, 225 (Del.

2019Aug. 7, 2012) (“Ordinarily a defendant may amend a pleading to assert an affirmative defense even where the statute of limitations or other considerations would bar the assertion of a substantially similar counterclaim.”); PNC Bank, Del. v. Turner, 659 A.2d 222, 225 (Del.

2026Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (“The complaint generally defines the universe of facts that the trial court may consider in ruling on a Rule 12(b)(6) motion to dismiss.”). 4 plaintiff’s favor.15 In Delaware, the standard to survive a motion to dismiss is reasonable conceivability.16 In other words, the Court may not dismiss a claim unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.17 A statute of limitations defense is an affirmative defense.

2022Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006). 370 AlixPartners, LLP v. Mori, 2019 WL 6327325 , at *15 (Del.

2025Ch. 2024) (quoting Brandywine Smyrna, Inc. v. Millenium Builders, LLC, 34 A.3d 482, 486 (Del. 2011)). 79 Columbia Pipeline, 316 A.3d at 406–07. 21 held in common and is not accountable for such use in the absence of ouster.”80 Ouster requires more than sole possession and is an affirmative bar or expulsion of the tenant not in possession from the property—one party must have been excluded from the property by the other co-owner.81 Such may include one party’s denouncement of the other’s ownership rights, or if they otherwise purport to be a sole owner or deny access to the property.82 The Resp

2025Ch. 2024) (quoting Brandywine Smyrna, Inc. v. Millenium Builders, LLC, 34 A.3d 482, 486 (Del. 2011)). 79 Columbia Pipeline, 316 A.3d at 406–07. 21 held in common and is not accountable for such use in the absence of ouster.”80 Ouster requires more than sole possession and is an affirmative bar or expulsion of the tenant not in possession from the property—one party must have been excluded from the property by the other co-owner.81 Such may include one party’s denouncement of the other’s ownership rights, or if they otherwise purport to be a sole owner or deny access to the property.82 The Resp

2024The complaint adequately alleged that the benefit to the defendants was material because (i) “the defendant directors focused on the ability of the conversions to reduce or eliminate litigation risk,” (ii) “[t]he board materials discussed those issues and called out past cases,” and (iii) “the proxy statements told the stockholders that the directors were recommending the conversions to reduce or eliminate litigation risk.”21 Levinson, 385 A.2d at 720 (“[T]he Court determined that an affirmative defense was not available, and the consequence of the decision was that the parties must proceed to

2023See also Levinson v. Conlon, 385 A.2d 717, 720 (Del. 1978) (“[T]he Court determined that an affirmative defense was not available, and the consequence of the decision was that the parties must proceed to trial, a ruling which our cases have held is not [a] basis for an interlocutory appeal.”). 27 See, e.g., In re Pure Res., Inc. S’holders Litig., 2002 WL 31357847 , at *2 (Del.

2024Thus, unless it is clear from the face of the complaint that an affirmative defense exists and that the plaintiff can prove no set of facts to avoid it, dismissal of the complaint based upon an affirmative defense is inappropriate.”153 The analogous statute of limitations for a reformation claim is the three-year statute for breach of contract.154 “The law in Delaware is crystal clear that a claim accrues as soon as the wrongful act occurs.”155 Because Lannett’s reformation claim is based on mistake, Andor argues that the claim “accrues when the claimant discovered or becomes aware of his mist

2022Declaratory judgment would be inequitable, Moving Defendants aver, because Gower waited 232 days to file his lawsuit and unwinding the Share Sales would cause substantial prejudice to the Moving Defendants and Trux. 108 Moving Defendants’ appeal to equity and the exercise of discretion is nothing short of a laches defense. “[D]ismissal of the complaint based upon an affirmative defense is inappropriate” under Delaware law “[u]nless it is clear from the face of the complaint that an affirmative defense exists and that the plaintiff can prove no set of facts to avoid it.” Reid v. Spazio, 970 A.2

2023The resulting inquiry would turn solely on the employer’s conduct and whether, by engaging in the litigation, the employer “knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right.”62 Delaware cases likewise permit parties to waive their right to arbitrate. 63 While serving as a Vice Chancellor, Justice Jacobs wrote that “a waiver of arbitration will be found if the party seeking arbitration has ‘actively participated in a lawsuit or taken other action inconsistent with the right to arbitration.’”64 The defendant had included the arbitration provision as an aff

2023The resulting inquiry would turn solely on the employer’s conduct and whether, by engaging in the litigation, the employer “knowingly relinquish[ed] the right to arbitrate by acting inconsistently with that right.”62 Delaware cases likewise permit parties to waive their right to arbitrate. 63 While serving as a Vice Chancellor, Justice Jacobs wrote that “a waiver of arbitration will be found if the party seeking arbitration has ‘actively participated in a lawsuit or taken other action inconsistent with the right to arbitration.’”64 The defendant had included the arbitration provision as an aff

2023AB v. Mirror Image Internet, Inc., 842 A.2d 1245 , 1260 n.39 (Del.

2023AB v. Mirror Image Internet, Inc., 842 A.2d 1245 , 1260 n.39 (Del.

2023Jur. 2d Release § 4, Westlaw (database updated Feb. 2023) (describing the invocation of a covenant not to sue as “an affirmative defense to an action”). 7 See, e.g., Seven Invs., 32 A.3d at 396 (considering implications of general release at the pleading stage where it appeared in a document incorporated by reference in the complaint); Meer v. Aharoni, 2010 WL 2573767 , at *3 (Del.

2023When a pleadings-stage dispositive motion “relies upon affirmative defenses, such as waiver and release, the Court may dismiss a claim if the plaintiff includes in its pleadings facts that incontrovertibly constitute an affirmative defense to a claim.’”70 Because the Stock Purchase Agreement integral to Mr. Menna’s Complaint incontrovertibly contains a release that Defendants rely on as an affirmative defense, Mr. Menna will survive Defendants’ motion for judgment on the pleadings only if the Complaint contains “enough facts to plausibly suggest” that he is still entitled to the relief he seek

2022The Superior 69 475 U.S. 767, 775 (1986) (“[A]s one might expect given the language of the Court in [Sullivan] . . . [the] plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.”). 70 Id. 71 Barker v. Huang, 610 A.2d 1341, 1350 (Del. 1992). 72 Cahill, 884 A.2d at 463 (citing Hepps, 475 U.S. at 777 ). 73 Re, 496 A.2d at 557 (citing Williams v. WCAU–TV, 555 F.Supp. 198, 202 (E.D.

2017Barker v. Huang, 610 A.2d 1341, 1350 (Del. 1992).

2022Indeed, such affirmative statements are a stronger demonstration of a waiver ‘than the mere absence of an objection.’”) (footnotes omitted) (quoting King v. State, 239 A.2d 707, 708 (Del. 1968); see also King, 239 A.2d at 708 (stating that, “[t]he instant case is not a case of silence and failure to object; this is, rather, a case of an affirmative waiver.”); Opening Br. at 27 (acknowledging that “trial counsel elected not to challenge the admissibility of the prints or corresponding testimony”) (emphasis added). 43 See, e.g., DFC Glob.

2022Indeed, such affirmative statements are a stronger demonstration of a waiver ‘than the mere absence of an objection.’”) (footnotes omitted) (quoting King v. State, 239 A.2d 707, 708 (Del. 1968); see also King, 239 A.2d at 708 (stating that, “[t]he instant case is not a case of silence and failure to object; this is, rather, a case of an affirmative waiver.”); Opening Br. at 27 (acknowledging that “trial counsel elected not to challenge the admissibility of the prints or corresponding testimony”) (emphasis added). 43 See, e.g., DFC Glob.

2022The Superior 69 475 U.S. 767, 775 (1986) (“[A]s one might expect given the language of the Court in [Sullivan] . . . [the] plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.”). 70 Id. 71 Barker v. Huang, 610 A.2d 1341, 1350 (Del. 1992). 72 Cahill, 884 A.2d at 463 (citing Hepps, 475 U.S. at 777 ). 73 Re, 496 A.2d at 557 (citing Williams v. WCAU–TV, 555 F.Supp. 198, 202 (E.D.

2022At common law, truth was an affirmative defense to a claim of defamation, meaning that defamatory statements could be actionable even if “the factfinding process [was] unable to resolve conclusively whether the speech [was] true or false.”48 But in Philadelphia Newspapers, Inc. v. Hepps, the United States Supreme Court determined that, when the challenged statements address matters of public concern, “the common law’s rule on falsity—that the defendant must bear the burden of proving truth—must . . . fall . . . to a 47 App. to Opening Br. at A46. 48 Hepps, 475 U.S. at 776 . 14 constitutional r

1993“An affirmative defense is one that admits the doing of the act charged, but seeks to justify, excuse or mitigate it_” Halko v. State, Del.Supr., 175 A.2d 42, 49 (1961).

1977See, e. g., Rogers v. State, Del.Supr., 343 A.2d 608 (1975); Miller v. State, Del.Supr., 233 A.2d 164 (1967); Halko v. State, Del.Supr., 4 Storey 180 , 175 A.2d 42 (1961).

1977In Rivera v. State, Del.Supr., 351 A.2d 561 , appeal dismissed, 429 U.S. 877 , 97 S.Ct. 226 , 50 L.Ed.2d 160 (1976), 11 Del.C. § 401 which classified mental illness as an affirmative defense, with the resulting allocation of burdens of proof, was unsuccessfully attacked as violative of the Due Process Clause.

1976Fuentes v. State, Del.Supr., 349 A.2d 1 (1975); see also Rivera v. State, Del.Supr., 351 A.2d 561 (1976).

2024“The affirmative defense of laches generally requires the establishment of three things: first, knowledge by the claimant; second, unreasonable delay in bringing the claim; and third, prejudice to the defendant.” Homestore, Inc. v. Tafeen, 888 A.2d 204, 210 (Del. 2005).

2007ODC then applied a three-prong test for determining whether an affirmative defense of laches is met, as recited by the Delaware Supreme Court in Homestore, Inc. v. Tafeen, [ 888 A.2d 204 ] 2005 WL 3091887 , at (Del.Supr., Nov. 17, 2005) (footnote omitted)6.

2024The cases that Appellant cites in support of its argument161 all address un-pleaded affirmative defenses raised at the pre-trial stage and not a preliminary injunction stage.162 Additionally, Appellant’s argument presumes that Jackson was required to plead an affirmative defense to challenge the enforceability of the LLC Agreement based on Nielsen and Britton’s conduct.163 But Appellant had the burden of establishing an enforceable contract as an element of its claim in order to obtain a preliminary injunction.164 The Court of Chancery therefore did not abuse its discretion in considering the

2024May 5, 2020) (“[T]he failure to raise an affirmative defense may constitute a waiver, if that defense is not raised in a timely fashion.”). 141 In re Nantucket Island Assocs., 2002 WL 31926614 , at *4. 142 Alexander v. Cahill, 829 A.2d 117 , 128–29 (Del. 2003).

2024But that’s 133 Id. at 657–58. 134 Id. at 660 . 135 Defendants say that courts do not treat stockholder ratification as an affirmative defense, citing a number of cases for the premise that courts “across jurisdictions have recognized the power of ratification to moot stockholder litigation” after litigation has commenced.

2024But that’s 133 Id. at 657–58. 134 Id. at 660 . 135 Defendants say that courts do not treat stockholder ratification as an affirmative defense, citing a number of cases for the premise that courts “across jurisdictions have recognized the power of ratification to moot stockholder litigation” after litigation has commenced.

2022The Superior 69 475 U.S. 767, 775 (1986) (“[A]s one might expect given the language of the Court in [Sullivan] . . . [the] plaintiff must show the falsity of the statements at issue in order to prevail in a suit for defamation.”). 70 Id. 71 Barker v. Huang, 610 A.2d 1341, 1350 (Del. 1992). 72 Cahill, 884 A.2d at 463 (citing Hepps, 475 U.S. at 777 ). 73 Re, 496 A.2d at 557 (citing Williams v. WCAU–TV, 555 F.Supp. 198, 202 (E.D.

2017Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005) (citing Philadelphia Newspapers v. Hepps, 475 U.S. 767 , 106 S.Ct. 1558 ,. 89 L.Ed.2d 783 (1986)).