Can an affirmative defense be raised in a motion to dismiss?
federal, United States of America
The following excerpt is from Wilson v. Desert Realty, Inc. (In re Lindsey), Adv. No. 14-1116-BTB, BAP No. NV-14-1583-KiDJu, BAP No. NV-15-1071-KiDJu (Related appeals) (B.A.P. 9th Cir. 2016):
6. We note that when an affirmative defense "is obvious on the face of a complaint" the defendant can raise that defense in a motion to dismiss without the motion being converted to summary judgment. Rivera v. Peri & Sons Farms, Inc., 735 F.3d 892, 902 (9th Cir. 2013). However, that rule is generally reserved for defenses such as statute of limitations. Id.
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