Opinion
Case No. 4:06-CV-697 (JCH).
October 29, 2007
MEMORANDUM AND ORDER
The matter is before the Court on Plaintiff's Motion for Partial Summary Judgment (Doc. No. 85), filed August 31, 2007. Upon consideration, more briefing is needed regarding Defendant's argument against summary judgment on Counts III and V. Specifically, Defendant appears assert the affirmative defense of set-off. See Buchweiser v. Estate of Laberer, 695 S.W.2d 125, 129 (Mo. 1985) (explaining that set-off "is generally founded on a liquidated debt and used to discharge or reduce plaintiff's claim by an opposite claim arising from a transaction extrinsic to the plaintiff's cause of action."). Defendant, however, has not explicitly raised set-off, either as a counterclaim or affirmative defense, in its pleadings. See Sveum v. J. Mess Plumbing, Inc., 965 S.W.2d 924, 927 (Mo.Ct.App. 1998) (holding a party must raise a claim for set-off in its pleadings).
As such, the Court requires additional briefing on two discrete questions: (1) Under Missouri law, must set-off be pled as a counterclaim or may it be pled as an affirmative defense? (2) Does Defendant's Second Amended Answer and Counterclaim (Doc. No. 74) sufficiently assert a set-off counterclaim or affirmative defense?
The previous round of briefing on this summary judgment motion was almost devoid of citation to legal authority. The Court reminds the parties that they cite relevant legal authority in their briefs.
Accordingly,
IT IS HEREBY ORDERED that Defendant shall file a brief no later Friday, November 2, 2007 answering these two questions. Plaintiff may file a response no later than Wednesday, November 7, 2007. Defendant may file a reply no later than Tuesday, November 13, 2007.