This excerpt taken from the ARHN 8-K filed Aug 12, 2008.
4. Summary Judgment While Affirmative Defenses Are Pending
Archon argues summary judgment in Plaintiffs favor is inappropriate because Archon has pled various affirmative defenses, any of which, if successful, would absolve it of liability. Plaintiffs respond that partial summary judgment is appropriate despite pending affirmative defenses because affirmative defenses can be litigated separately and Plaintiffs claims still may be dismissed if those affirmative defenses ultimately are successful.
Summary judgment may be used in the area of affirmative defenses. Dam v. Genl Elec. Co., 265 F.2d 612, 614 (9th Cir. 1958). For instance, a court may grant a defendant summary judgment based on an affirmative defense. Id. Likewise, a court may grant a summary judgment in favor of a plaintiff regarding a defendants affirmative defenses. See Geurin v. Winston Indus., Inc., 316 F.3d 879, 881 (9th Cir. 2002).
Plaintiffs, however, are moving only for partial summary judgment, and do not seek summary judgment on Archons affirmative defenses. No law provided by the parties, or located by the Court suggests that granting partial summary judgment on one issue, while leaving open the possibility of litigating affirmative defenses separately, would be procedurally problematic. Partial summary judgment in Plaintiffs favor would not preclude Archon from litigating any remaining affirmative defenses. It therefore is not inappropriate for this Court to grant partial summary judgment despite the existence of pending affirmative defenses.