Dumas v. Ropp , 98 Idaho 61 ( 1977 )

BAKES, Justice,

concurring specially:

I agree with the majority that this complaint could not properly be dismissed unrer a 12(b)(6) motion for the additional reason that under the Idaho Rules of Civil Procedure the defense of the statute of limitations should not ordinarily be considered before a responsive pleading to the complaint is filed. Motions to dismiss under I.R.C.P. 12(b) go to the initial question of whether, for a variety of procedural or jurisdictional reasons, the court may consider the case, or whether there is a prima facie case to be considered. They do not permit factfinding with regard to the merits of a claim or a defense, and they do not contemplate requiring a party to develop facts in order to negate the merits of a claim or a defense. On the contrary, I.R. C.P. 8(c) provides that affirmative defenses, including the defense of the statute of limitations, must be pleaded in answer to the complaint. That is because the defendant has the burden of proving the facts in support of any affirmative defense which bars the action, and the plaintiff should not be required to anticipate affirmative defenses and then deny them, or allege contrary facts even before the affirmative defense is pleaded. As stated in 1A Barron & Holtzoff, Federal Practice & Procedure, § 281, p. 190 (1961):

“One objection to permitting the defense of limitations to be raised by [a Rule 12 (b) (6) ] motion is that there may be facts which have tolled the running of the statute which do not appear on the face of the complaint. It has been suggested that where plaintiff has shown facts which would make the statute of limitations a bar, it is incumbent on him, either in his initial pleading or by amendment thereof, to show why he falls under any exception to that bar. Yet this seems contrary to the requirement of simple pleading under Rule 8.” (Footnote omitted).

The incongruity of requiring the plaintiff to anticipate affirmative defenses and then plead around them or negate them is best demonstrated when one examines the simple federal complaint forms approved by the United States Supreme Court and originally approved in Rule 84, I.R.C.P., pp. 431-432, forms 4-11. One wonders how the pleading philosophy behind those simple statements of a claim for relief contained in those form complaints, when viewed together with Rule 8(c) which expressly requires the defense of the statute of limitations to be raised in the answer as an affirmative defense, could ever be interpreted to require the plaintiff to negate the defense of statute of limitations in his complaint. The fact that some of the federal courts have chosen not to follow Rule 8(c) and have required plaintiffs to negate the defense of statute of limitations merely indicates that some judges are willing to take shortcuts at the expense of justice in some cases — a practice which doesn’t seem to have much to commend it.

It is sometimes argued in support of the practice of permitting the statute of limitations to be raised by a 12(b)(6) motion that it is senseless to require a defendant to go to trial when the plaintiff’s complaint shows that the statute has run. The short answer to that argument is that the defense of statute of limitations can be raised prior to trial by a motion for summary judgment where the parties are able to develop facts by way of affidavits, interrogatories or depositions, and thus determine whether there are triable issues of fact regarding the statute of limitations. Summary judgment is much the preferable way to handle statute of limitations defenses. Had that practice been followed in this case this whole appeal, with all of its attendant expenses, could have been avoided.

SHEPARD, J., dissents without opinion.