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concerning the concept of implied consent in the context of Rule
41(b)(1) in connection with the Rule 39 requirement to plead
affirmative defenses.
Where there is a failure to plead an affirmative defense,
such as collateral estoppel, courts have held that the defense
has been waived. See, e.g., Pinto Trucking Serv., Inc. v. Motor
Dispatch, Inc., 649 F.2d 530, 534 (7th Cir. 1981); Standish v.
Polish Roman Catholic Union of Am., 484 F.2d 713, 721 (7th Cir.
1973). The waiver of an unpleaded affirmative defense is, in
some respects, parallel to the requirement in Rule 34 that any
issue not raised in the assignments of error be deemed conceded.
See, e.g., Lilley v. Commissioner, T.C. Memo. 1989-602.
The procedural rules require the pleading of affirmative
defenses to provide “the opposing party notice of the plea of
estoppel and a chance to argue, if he can, why the imposition of
an estoppel would be inappropriate.” Blonder-Tongue Labs. v.
University of Ill. Found., 402 U.S. 313, 350 (1971). Otherwise,
a party raising an affirmative defense, could “‘lie behind a log’
and ambush * * * [an opposing party] with an unexpected defense”
causing unfair surprise and prejudice. Ingraham v. United
States, 808 F.2d 1075, 1079 (5th Cir. 1987).
The Court of Appeals for the Fifth Circuit has addressed
whether an affirmative defense (res judicata) was tried with
implied consent of the parties. United States v. Shanbaum, 10
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