The use of affirmative defenses for summary disposition.

Upon service of a complaint, the defendant must answer it or move for dismissal. A motion to dismiss will be denied unless:

- there is no jurisdiction;
- the location of the lawsuit is improper;
- there was insufficient service of process or the original notice was deficient;
- a necessary party was not included; or
- the complaint fails to state a valid claim.

The defendant must usually file an answer, along with affirmative defenses (often included as boilerplate and not argued during the case). Sometimes, the applicability of an affirmative defense is apparent in the complaint. If so, it may lend itself to summary disposition. In such a case, the defendant will answer the complaint, but shortly thereafter files a motion for summary judgment. Some of the most effective but underutilized affirmative defenses for summary disposition are laches, equitable and promissory estoppel, and estoppel by acquiescence. They are all similar, yet distinct.

If you are sued, but think to yourself, "it's not fair," then one of these affirmative defenses (or a different one) may apply.

1. Laches.

Applicable when (a) the plaintiff delays filing a lawsuit for an unreasonable and inexcusable length of time, and (b) the delay injures the defendant.

2. Equitable estoppel.

Applicable when (a) the plaintiff does or says something the defendant relies on, (b) the plaintiff later changes his/her mind and sues on it, and (c) it is inequitable to allow the plaintiff's claim to proceed. In other words, the plaintiff must "bait-and-switch."

3. Estoppel by acquiescence.

Applicable when the plaintiff expressly or impliedly consents to the defendant's conduct.

4. Promissory estoppel.

Applicable when (a) the plaintiff makes a promise that the defendant relies on, and (b) the plaintiff later reneges on the promise and brings a lawsuit based on it. This is comparable to equitable estoppel, but does not require the degree of bad faith that equitable estoppel does.