Whether a defendant may assert an affirmative defense in a summary judgment motion without previously pleading it in an answer, despite Rule 8(c)(1) and potential Rule 16(b)(4) limitations

Rule 8(c)(1) of the Federal Rules of Civil Procedure provides that a party “must” plead “any” affirmative defense. The question presented is: Where a defendant has filed an answer without pleading an affirmative defense, may the defendant nonetheless assert that affirmative defense as the basis for a summary judgment motion, without amending or seeking to amend its answer to plead that affirmative defense, and may a defendant do so even if an amendment adding that affirmative defense would be barred by Rule 16(b)(4)? ii PARTIES The parties are Dr. Jasmine Younge and the Fulton Judicial Circuit District Attorney’s Office, Georgia.