The Statute of Limitations on Affirmative Defenses

Time Frame

• An affirmative defense, in most instances, must be timely raised by a defendant and stated in his answer to a complaint. In most states, a defendant has 30 days to respond to a complaint. If a defendant fails to raise an affirmative defense in his first pleading, absent compelling circumstances, he will be barred from introducing an affirmative defense thereafter.
  
  

Implication

• Once a defendant raises an affirmative defense, he bears the responsibility for proving (through facts and evidence) that the defense applies to him.
  
  

Distinction

• In federal lawsuits, the time in which a defendant must plead an affirmative defense is shortened. Federal Rule of Civil Procedure provides that a defendant must file a response to a complaint within 21 days of its receipt.
  
  

Tip

• Statute of limitations is an affirmative defense. When raising the statute of limitations defense, a defendant is arguing to the court that the plaintiff did not timely file the lawsuit according to the time limits for that type of action as specified in the state's statutes.