under relevant statutes barred the University’s claims.”). Regional circuit law governs the question of waiver of a defense. Ultra-Precision Mfg., Ltd. v. Ford Motor Co., 411 F.3d 1369, 1376 (Fed. Cir.2005). In the Fifth Circuit, “[although failure to raise an affirmative defense under Rule 8(c) in a party’s first responsive pleading ‘generally results in a waiver ... ’ [w]here the matter is raised in the trial court in a manner that does not result in unfair surprise ... technical failure to comply precisely with Rule 8(c) is not fatal. Thus, a defendant does not waive an affirmative defense if he ‘raised the issue at a pragmatically sufficient time, and [the plaintiff] was not prejudiced in its ability to respond.’” Giles v. Gen. Elec. Co., 245 F.3d 474, 491-92 (5th Cir.2001) (<HOLDING>). The Federal Circuit recently upheld a
holding in a class action derivative suit that the joint defense privilege cannot be waived without the consent of all the parties to the defense except in the situation where one of the joint defendants becomes an adverse party in a litigation holding that inclusion of failure to mitigate damages as an issue in a final pretrial order saved the issue from waiver under rule 8c even though the defendant had failed to plead the issue holding that the district court properly allowed the defendant who asserted the disputed defense as a contested issue of law in the joint pretrial order to pursue the defense despite the defendants failure to comply with rule 8c holding that the government did not waive an affirmative defense not pleaded in the answer because it raised the defense at a pragmatically sufficient time by listing the defense in the joint pretrial order holding that defendants failure to assert the defense in any pretrial motions did not waive defendants limitations defense because the assertion of a limitations defense in the answer preserved defendants right to raise the defense both during the first trial and before the second