Opinion
No. 01 C 2370
April 28, 2003
MEMORANDUM OPINION AND ORDER
Before an amendment to the Indian Arts and Crafts Act (the "Act"), 25 U.S.C. § 305e, only a Native American tribe could bring a private party lawsuit under the Act, On November 9, 2000, Congress amended the Act to grant Native American arts and crafts organizations standing to sue. This Court concluded on January 21, 2003 that it was inappropriate to retroactively apply the amendment to the Act to allow Plaintiff to seek damages for conduct that occurred before November 9, 2000. See Native Am. Arts, Inc. v. Waldron Corp., ___ F. Supp.2d ___, 2003 WL 164210 (N.D.Ill. 2003).
Plaintiff filed a motion asking the Court to reconsider its January 21, 2003 ruling on several grounds. The Court disposed of most of Plaintiff's arguments in a February 3, 2003 order. (R. 143-1) The Court ordered additional briefing on the issue of whether Defendant waived the issue that Plaintiff lacked standing before the 2000 amendment by not raising it as an affirmative defense in its answer. The Court finds that Defendant did not waive the issue because lack of standing is not an affirmative defense and is not subject to waiver. Accordingly, the Court denies Plaintiff's motion for reconsideration.
ANALYSIS
I. Lack of Standing Is Not An Affirmative Defense Under Federal Law
Federal Rule of Civil Procedure 8(c) provides for the need to plead affirmative defenses. Rule 8(c) lists several affirmative defenses: accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. It does not list standing as an affirmative defense. See id. Standing's absence is not dispositive, however, because Rule 8(c)'s list is not exhaustive. See Fed.R.Civ.P. 8(c) (a party must plead "any other matter constituting an avoidance or affirmative defense.")
Where issues are not listed in Rule 8(c), therefore, courts must analyze whether they are affirmative defenses. By their nature, affirmative defenses require defendants to bear the buider of proof on those particular issues. See Publications Int'l., Ltd. v. Landoll, Inc., 164 F.3d 337, 339-40 (7th Cir. 1998). Another way to look at it is that affirmative defenses are reasons why defendants are not liable even if they admit the facts alleged in the complaint. Instituto Nacional de Comercializacion Agricola v. Continental Ill., Nat'l Bank Trust Co., 576 F. Supp. 985, 989 (N.D. Ill. 1983).
By these definitions, it is clear that standing is not an affirmative defense under federal law. This is true because Plaintiffs bear the burden of pleading and proving standing. Lujan v. Defenders of Wildife, 504 U.S. 555, 561k 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992); Indemnified Capital Invs., S.A. v. R.J. O'Brien Assoc., 12 F.3d 1406, 1408 (7th Cir. 1993). Defendants can challenge standing on a motion to dismiss — where the only issue is whether plaintiffs can establish the elements of their claims based on their allegations. See Charles Wright Arthur Miller, 13A Federal Practice and Procedure § 3531.15 (2d ed. 1984). Courts can also raise the issue sua sponte. Id. It is apparent, therefore, that standing is a plaintiffs requirement to plead and provo. Accordingly, standing is not an affirmative defense.
II. Standing Is Not A Waivable Issue
Plaintiff's argument that the issue of standing is waivable flies in the face of clearly established Constitutional law. The issue of standing is "jurisdictional and not subject to waiver. Lewis v. Casey, 518 U.S. 343, 349 n. 1, 116 S.Ct. 2174, 2178 ml, 135 L.Ed.2d 606 (1996); see also Perry v. Sheahan, 222 F.3d 309, 313 (7th Cir. 2000); Wiggins v, Martin, 150 F.3d 671, 673 (7th Cir. 1998). Standing is a threshold requirement imposed by Article III of the Constitution, which limits federal subject matter jurisdiction to claims that present an actual case or controversy in whose outcome a plaintiff has a personal stake." Perry, 222 F.3d at 313. Even where the parties agree that a plaintiff has Constitutional standing, courts must satisfy themselves that the jurisdictional requirement is met. Rhodes v. Johnson, 153 F.3d 785, 787 (7th Cir. 1998). See also Fed.R.Civ.P. 12(h)(3) ("Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."). Defendant, therefore, has not waived the standing issue even if it contested standing for the first time at the pre-trial stage.
Plaintiff relies upon LINC Finance Corp. v. Onwuteaka, 129 F.3d 917, 922 (7th Cir. 1997) in support of its position that lack of standing is a waivable affirmative defense. A closer look at Linc Finance reveals, however, that the Seventh Circuit had subject matter over that case through diversity jurisdiction. The Court was therefore applying state law pursuant to the Erie doctrine. Under Illinois law, lack of standing is an affirmative defense. See Glisson v. City of Marion, 720 N.E.2d 1034, 1039 (Ill. 1999). Linc Finance therefore does not stand for the proposition that lack of standing is a waivable affirmative defense under federal law.