CONCLUSION
The Court finds that Defendant did not waive the argument that Plaintiff lacked standing
under the Act by failing to list it as an affirmative defense in ils answer, Standing is not an
affirmative defense and it cannot be waived. Instead, it is a jurisdictional requirement that

Plaintiff must plead and prove under federal law. Accordingly, Plaintiffs motion to reconsider is

denied.
DATED: April 28, 2003 ENTERED:
AMY J. ST. @

United States Didtrict Judge



establish the elements of their claims based on their allegations. See Charles Wright & Arthur
Miller, 13A Federal Practice and Procedure § 3531.15 (2d ed. 1984), Courts can also raise the
issue sua sponte. Id. It is apparent, therefore, that standing is a plaintiff's requirement to plead
and prove. Accordingly, standing is not an affirmative defense.
iL. Standing Is Not A Waivable Issue

Plaintiff's argument that the issue of standing is waivable flies in the face of clearly
established Constitutional law. The issuc of standing is “jurisdictional and not subject to
waiver.” Lewis v. Casey, 518 U.S. 343, 349 n. 1, 116 S.Ct. 2174, 2178 n.1, 135 L.Ed.2d 606
(1996); see also Perry v. Sheahan, 222 F.3d 309, 313 (7" Cir. 2000); Wiggins v, Martin, 150
F.3d 671, 673 (7" Cir. 1998). Standing is a threshold requirement imposed by Article ID of the
Constitution, which limits federal subject matter jurisdiction to claims that present an actual case
or controversy in whose outcome a plaintiff has a “personal stake.” Perry, 222 F.3d at 313.
Even where the parties agree that a plainti{fhas Constitutional standing, courts must satisfy
themselves that the jurisdictional requirement is met. Rhodes v. Johnson, 153 F.3d 785, 787 (7"
Cir. 1998). See also Fed. R. Civ. P. 12(h)(3) (“Whenever it appears by suggestion of the parties
or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the
action.”). Defendant, therefore, has not waived the standing issue even if it contested standing

for the first time at the pre-trial stage.'

' Plaintiff relies upon LINC Finance Corp. v. Onwuteaka, 129 F.3d 917, 922 (7 Cir. 1997) in
support of its position that lack of standing is a waivable affirmative defense. A closer look at
Line Finance reveals, however, that the Seventh Circuit had subject matter over that case through
diversity jurisdiction. The Court was therefore applying state law pursuant to the Erie doctrine.
Under Illinois law, lack of standing is an affirmative defense, See Glisson v. City of Marion, 720
N.E.2d 1034, 1039 (Ill. 1999). Line Finance therefore does not stand for the proposition that
lack of standing is a waivable affirmative defense under federal law.

3



Minute Qrdes Fovan (06°97)

United States District Court, Northern District of Illinois

Name of Assigned Judge qi ; Sitting Judge if Other
or Magistrate Judge Amy J. St. Eve than Assigned Judge
CASE NUMBER 01 C2370 DATE 4/28/2003
CASE Native American vs. Earth Dweller
TITLE
[In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being preserited. |

DOCKET ENTRY:

(1) Oo Filed motion of [ usc listing in “Motion” box above.]

(2) ao Brief in support of motion due

(3) Oo Answer brief ta motion due . Reply to answer brief due

(4) i) Ruling/flearing on set for at

(5) oO Status hearing[held/continued to] [set for/re-sct for] on setfor at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on set for___att

(7) i] Trial{set for/re-set for] on______at

(8) o [Bench/Jury trial] [Hearing] held/continuedto__— at.

(9) o This case is dismissed | with/without] prejudice and without costs[by/agreement/pursuant to]
OvRcP4(m) ClLocal Rule 41.1. Ol FRCP41(a)(1) 1 FRCP41(a)(2).

(do) (Other docket entry] Enter Memorandum Opinion and Order. Plaintiffs motion to reconsider is

denied, Waldron Corporation’s motion for leave to amend affirmative defenses is denied as moot.

(1) [For further detail see order attached to the original minute order.)

No notices required, advised in apen court.

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No notices requ
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wv | Notices mailed by judge’s staff.

Notified counsel by telephone APR 2.9 2003

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IN THE UNITED STATES DISTRICT COURT yer
FOR THE NORTHERN DISTRICT OF ILLINOIS APR 24 Alt
EASTERN DIVISION

NATIVE AMERICAN ARTS, INC.,

Plaintiff,
No. 01 C 2370
Vv.
Judge Amy J, St. Eve
THE WALDRON CORPORATION,

Defendant.
MEMORANDUM OPINION AND ORDER

Before an amendment to the Indian Arts and Crafts Act (the “Act”), 25 U.S.C. §305e,
only a Native American tribe could bring a private party lawsuit under the Act. On November 9,
2000, Congress amended the Act to grant Native American arts and cralts organizations standing
to sue. This Court concluded on January 21, 2003 that it was inappropriate to retroactively apply
the amendment to the Act to allow Plaintiff to seek damages for conduct that occurred before
November 9, 2000. See Native Am. Arts, Inc. v. Waldron Corp., --- F.Supp.2d ----, 2003 WL
164210 (N.D. Ill. 2003).

Plaintiff filed a motion asking the Court to reconsider its January 21, 2003 ruling on
several grounds. The Court disposed of most of Plaintiff's arguments in a February 3, 2003
order. (R, 143-1.) The Court ordered additional briefing on the issue of whether Defendant
waived the issue that Plaintiff lacked standing before the 2000 amendment by not raising it as an
affirmative defense in its answer. The Court finds that Defendant did not waive the issue
because lack of standing is not an affirmative defense and is not subject to waiver. Accordingly,

the Court denies Plaintiff's motion for reconsideration.

Ne



ANALYSIS
1 Lack Of Standing Is Not An Affirmative Defense Under Federal Law

Federal Rule of Civil Procedure 8(c) provides for the necd to plead affirmative defenses.
Rule 8(c) lists several affirmative defenses: accord and satisfaction, arbitration and award,
assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of
consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res
judicata, statute of frauds, statute of limitations, and waiver. It does not list standing as an
affirmative defensc. See id. Standing’s absence is not dispositive, however, because Rule 8(c)’s
list is not exhaustive. See Fed. R. Civ. P, 8(c) (a party must plead “any other matter constituting
an avoidance or affirmative defense.”)

Where issues are not listed in Rule 8(c), therefore, courts must analyze whether they are
affirmative defenses. By their nature, affirmative defonses require defendants to bear the burden
of proof on those particular issues. See Publications Int’l., Ltd. v. Landoll, Inc., 164 F.3d 337,
339-40 (7" Cir, 1998). Another way to look at it is that affirmative defenses are reasons why
defendants are not liable even if they admit the facts alleged in the complaint. /nstituto Nacional
de Comercializacion Agricola v. Continental Ill. Nat'l Bank & Trust Co., 576 F.Supp. 985, 989
(N.D. 111.1983).

By these definitions, it is clear that standing is not an affirmative defense under federal
law. This is true because Plaintiffs bear the burden of pleading and proving standing. Lujan v.
Defenders of Wildlife, 504 U.S. 555, 561, 112 $.Ct. 2130, 119 L-Ed.2d 351 (1992); Indemnified
Capital Invs., S.A. v. RJ. O’Brien & Assoc., 12 F.3d 1406, 1408 (7" Cir. 1993). Defendants can

challenge standing on a motion to dismiss — where the only issue is whether plaintiffs can