Second Circuit Discusses Difference between Waiver and Forfeiture; Declines to Consider Forfeited SOL Defense

Per Patterson v. Balsamico, --- F.3d ----, 2006 WL 459260 (2d Cir. Feb. 27, 2006) regarding Rule 8(c):

Balsamico contends that Patterson's state law claim for intentional infliction of emotional distress, on which virtually all of the compensatory damages were awarded, should have been dismissed as time barred. . . .

Patterson responds that this defense was never raised in the district court and was therefore waived. See Nat'l Mkt. Share, Inc. v. Sterling Nat'l Bank, 392 F.3d 520, 526 (2d Cir.2004) (if an affirmative defense required to be pleaded under Fed.R.Civ.P. 8(c) is neither pleaded nor tried with the parties consent, the defense is usually waived). As Balsamico notes, however, the defense was raised in the Answer and in Paragraph 10 of Gorman's Affidavit dated August 29, 2002 in support of the defendants' original motion for summary judgment. This defense was therefore not “waived,” because “the term ‘waiver’ is best reserved for a litigant's intentional relinquishment of a known right.” Hamilton v. Atlas Turner, Inc., 197 F.3d 58, 61 (2d Cir.1999).

We conclude, however, that this defense was forfeited by Balsamico's failure to pursue it during the earlier appeal or after remand. “Forfeiture” is the failure to make the timely assertion of a right. Id.“Where a litigant's action or inaction is deemed to incur the consequence of loss of a right, or, as here a defense, the term ‘forfeiture’ [rather than waiver] is more appropriate.” Id.Although the issue of the statute of limitations was raised as a basis for dismissing the intentional infliction of emotional distress claim in the initial motion for summary judgment, the district court never reached that defense. Having dismissed all of the federal claims, the district court declined to exercise supplemental jurisdiction over the state law claims and dismissed them without prejudice. . . . Balsamico concedes that, although the district court had not ruled upon it, his trial attorney, Diodati, never raised the issue before the district court after the case was remanded. (Appellant Br. at 24.). . . .

Until this appeal, therefore, the defense was last raised in Gorman's August 29, 2002 affidavit, before the prior appeal. Although ample opportunity existed to reassert the limitations defense throughout the pre-trial activity in the case, the trial itself, and litigation of the post-trial motions, no reference was made to it. Balsamico therefore asks this Court to pass on an affirmative defense that was never determined in the trial court. Due to the extensive opportunities to litigate the statute of limitations issue that were foregone, we conclude that Balsamico abandoned this defense to Patterson's intentional infliction of emotional distress claim. Hamilton, 197 F.3d at 61.

. . . In this case, however, we decline to reach the statue of limitations issue because we conclude that there is no justification for the failure to pursue it after remand, at a time when the issue could have been resolved. We also cannot say that the jury would have, in the absence of this state law claim, awarded only nominal damages on Patterson's civil rights claims. . . . Because of this uncertainty, vacating the judgment on the intentional infliction of emotional distress claim would present a substantial “ ‘risk of prejudice to” 'Patterson. Krumme, 238 F.3d at 142 (quoting Amcel Corp. v. Int'l Exec. Sales, 170 F.3d 32, 36 (1st Cir.1999)). This risk of prejudice is a sufficient basis to decline to consider this forfeited defense.