It’s possible that, as an affirmative defense, if they failed to raise it in their initial Answer to the Complaint, they would have lost the ability to raise it again. Court rules generally are calculated against allowing parties to a civil suit to bring up new affirmative defenses one at a time without reason. Tends to draw out litigation. So it’s kind of use it or lose it if your defense is along the nature of “We’re not saying we’re responsible, but if we are responsible, you still can’t hold us liable because…”
Here’s Above the Law’s coverage of it: Disney Backs Away From Terrible Argument After Onslaught Of Negative Publicity - Above the Law
But the flip side of that is that using an affirmative defense affirms the claim. Once you use one, you can’t use a “but I didn’t do it” defense.
I’m not sure I follow; let’s say I’m suing you over, I dunno, an alleged breach of contract — and let’s say you want to argue that, as it happens, no, you didn’t actually sign the contract in question. But let’s also say that you’d like to argue that, given the dates in question, what I’m alleging seems like it would’ve taken place too long ago for me to now prevail, given the statute of limitations. And, what the heck: that, given the dates in question, even if the signature on there had been yours, you believe you would’ve been way too young to sign a valid contract.
If you make either of those arguments about the relevant dates, would you then be unable to use the “but that’s not my signature” defense?
I don’t think " You signed up for Disney plus and therefore we are entitled to arbitration" is an affirmative defense of the sort where the facts are admitted. In this particular case, it’s a motion to compel arbitration, which is not a defense at all. But if Disney doesn’t file that motion now and allows the lawsuit to proceed in court, they can’t demand arbitration later.
Sure you can. You can plead in the alternative.
And I should note that I’m not certain if what Disney put forward was strictly an affirmative defense, or some sort of challenge to venue/jurisdiction. It’s not my area of law. But the point remains, such defenses generally have to be raised up front, or else they are lost.
Disney didn’t necessarily have the option to first try to argue they didn’t own the restaurant, and only if that failed argue that they still shouldn’t be held liable because they have an arbitration agreement. The mere fact that they got to the point of trying to argue that they weren’t the owner, and then lost, would likely (I suspect almost certainly) be considered to waive any such arbitration agreement.
No doubt if I were evaluating this issue during my 1st semester of law school or while I was studying for the bar exam, I’d have known the answer cold. But now, well… IAALBNTKOL.
Yeah, that seems to track.
Plus, this being a Florida case, filed in state court rather than federal court, I can only guess what the rules of civil procedure would say. In law school and for the bar exam, we are only expected to know the Federal Rules of Civil Procedure. And on top of that, I’m not licensed (and do not practice) in Florida.
At the risk of introducing facts into the thread…
Here is the as-filed complaint (needed for understanding the document that follows):
Raglan Road Lawsuit | PDF | Waiting Staff | Negligence (scribd.com)
Here is Disney’s as-filed “Answer and Affirmative Defenses” (NOT the filing asking that the matter be arbitrated):
The interesting part of Disney’s filing is the following:
In response to paragraph 45, WDPR admits only that it owns the land located at1486 Buena Vista Drive, Orlando, Orange County, Florida 32830, a portion of which is subject toa lease agreement between WDPR and Great Irish Pubs Florida, Inc. (the “Lease”). The Lease speaks for itself. For example, the Lease states that Great Irish Pubs Florida, Inc. is responsible for the “Management and operation of the Premises” including hiring its own employees and making any decisions to “recruit, train, supervise, direct, discipline, and if necessary, discharge personnel working at the Premises” and “develop the food and beverage offering and all menus or offering sheets to be used.”
I am not a lawyer, but it seems that having a lease that specifically states that Disney does not direct or manage the restaurant or the menu would be a pretty good thing to have for defending against this claim.
It also seems that somehow, Disney managed to file a defense to the complaint prior to filing a request to make this case an arbitration. Again, IANAL, but it would seem to refute the claims in this thread that Disney has offered no defense against the facts alleged.
Carry on.
As usual, the excellent YouTube channel LegalEagle has a good summary of the legal issues in this case:
