I once heard someone say that if your defense has a name then it has to go in your answer. If you don’t put that defense in the answer you might lose it. But it’s worth remembering that waiver and timing can be two different questions. Once you’ve preserved your defense by putting it in your answer you then have to decide when to push that defense. The Sixth Circuit recently considered—and rejected—the argument that the only time to push a claim-preclusion defense is in a Rule 12 motion.

David and William Raub sued their property owners’ association, town, and county, claiming the defendants conspired against them in retaliation for a lawsuit the Raubs filed a decade ago. The association responded that the Raubs had already brought—or could have brought—these same claims in another set of lawsuits. The Eastern District of Michigan agreed and dismissed the suit (awarding attorneys’ fees to the association along the way).

The Sixth Circuit affirmed. On appeal the Raubs argued that the association wasn’t allowed to raise the claim preclusion argument at summary judgment. Rather, the Raubs claimed, the only time to argue preclusion is on a Rule 12(b)(6) motion to dismiss or a Rule 12(c) judgment on the pleadings. The Sixth Circuit disagreed: “Defendants are allowed to raise res judicata at summary judgment, especially when the defense would not have been effective at the time the plaintiff filed suit.” And in this case the preclusion argument could not have been raised on a Rule 12 motion. “[T]wo of the cases that precluded the Raubs’ claims did not reach a final decision until months after the Raubs filed their complaint. . . . It was thus entirely permissible for the defendants to raise res judicata when they moved for summary judgment.”

It’s important to notice that the association didn’t wait until summary judgment to spring a preclusion trap on the Raubs. “[E]ach defendant listed res judicata as an affirmative defense and referenced the pending state cases in their answers.” So this case wasn’t about waiver, just timing. Had the defendants not mentioned preclusion in their answers this analysis might have turned out differently.

The Sixth Circuit’s opinion is here.