Arthur Chassen v. Fidelity National Financial In

OPINION

SMITH, Circuit Judge.

“A waived claim or defense is one that a party has knowingly and intelligently relinquished.” Wood v. Milyard, — U.S. -, 132 S.Ct. 1826, 1832 n.4, 182 L.Ed.2d 733 (2012). How, then, can a party waive a right “in a situation in which no right existed[?]” Ackerberg v. Johnson, 892 F.2d 1328, 1333 (8th Cir. 1989). The answer is: it cannot. Every circuit to have answered this question has held that “a litigant [need not] engage in futile gestures merely to avoid a 'claim of waiver.” Miller v. Drexel Burnham Lambert, Inc., 791 F.2d 850, 854 (11th Cir. 1986), abrogated…