Convoy Corporation, an Oregon Corporation v. Sperry Rand Corporation, a Delaware Corporation

I respectfully dissent from the order remanding this case for further trial. The excellent analysis by the majority misses one salient factor. Double recovery as a defense is an affirmative defense. The burden of proof is on the defendant. Fed.R.Civ.P. Rule 8(c). The defense is akin to the defenses of “payment” and “release” specified in the rule, and, if improperly so characterized, is certainly “other matter constituting an avoidance or affirmative defense.” Cf. Duarte v. Bank of Hawaii, 287 F.2d 51 (9th Cir. 1961).

Univac failed to establish this defense by a preponderance of the evidence.…