                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________  ELEVENTH CIRCUIT
                                                              JULY 22, 2008
                               No. 08-11158                 THOMAS K. KAHN
                           Non-Argument Calendar                 CLERK
                         ________________________

                 D. C. Docket No. 06-01105-CV-ORL-31KRS

MICHAEL J. HEWITT,
                                                              Plaintiff-Appellee,

                                    versus

MOBILE RESEARCH TECHNOLOGY, INC.
CRYSTAL INTERNATIONAL
f.k.a. Mobile Research International, Inc.,

                                                         Defendants-Appellants.

                         ________________________

                 Appeal from the United States District Court
                     for the Middle District of Florida
                      _________________________

                                (July 22, 2008)

Before CARNES, BARKETT and PRYOR, Circuit Judges.

PER CURIAM:

     Michael J. Hewitt appeals the judgment as a matter of law in favor of
Crystal International Travel Group and against Hewitt’s complaint for breach of

contract. We affirm.

      Hewitt’s theory throughout litigation and trial was that there was a written

assignment to Crystal of his employment contract with Mobile Research

Technology. At trial, Hewitt’s only evidence of a written assignment of his

employment contract to Crystal was an 8-K form filed by Crystal with the

Securities and Exchange Commission. The 8-K form is an unaudited disclosure

document that must be filed with the Commission to announce major events to

shareholders. The district court granted judgment as a matter of law in favor of

Crystal at the close of trial, before the jury deliberated.

      Hewitt also argued that there was sufficient evidence for the jury to decide

whether there was an oral assignment of the contract. Crystal argued that there

could not be any oral assignment because the statute of frauds requires a writing.

See Fla. Stat. § 725.01. Crystal did not plead the affirmative defense of the statute

of frauds in its answer to the amended complaint.

      We review judgment as a matter of law de novo. Webb-Edwards v. Orange

County Sheriff’s Office, 525 F.3d 1013, 1029 (11th Cir. 2008) (citation omitted).

“[W]e consider all the evidence in the light most favorable to the non-moving

party, and independently determine whether the facts and inferences point so

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overwhelmingly in favor of the movant . . . that reasonable people could not arrive

at a contrary verdict.” Johnson Enters. of Jacksonville, Inc. v. FPL Group, Inc.,

162 F.3d 1290, 1308 (11th Cir. 1998). We review the denial of a motion to alter

or amend a judgment for abuse of discretion. Shuford v. Fid. Nat’l Prop. & Cas.

Ins. Co., 508 F.3d 1337, 1341 (11th Cir. 2007) (citations omitted).

      Hewitt challenges two rulings of the district court. First, Hewitt argues that

the district court erred when it entered judgment as a matter of law against his

complaint for breach of contract. Second, he argues that the district court abused

its discretion when it denied his motion to alter or amend the judgment. Both

arguments fail.

      The district court reasoned that Hewitt failed to present any evidence of a

written assignment of the employment contract to Crystal and any alleged oral

assignment was not valid under the statute of frauds. Hewitt contends that the

district court erred in both determinations. We agree with the district court.

      Hewitt failed to prove a written assignment of his contract with Mobile

Research Technology. The 8-K form filed with the Commission is neither a

contract nor an assignment. The district court did not err when it rejected Hewitt’s

theory.

      Hewitt’s alternative argument that Crystal waived its defense under the

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statute of frauds also fails. The statute of frauds is an affirmative defense under

Federal Rule of Civil Procedure 8(c). If a party fails to raise an affirmative

defense in the pleadings, the party ordinarily waives its right to raise the issue at

trial. Hassan v. U.S. Postal Serv., 842 F.2d 260, 263 (11th Cir. 1988).

Nevertheless, “the liberal pleading rules established by the Federal Rules of Civil

Procedure apply to the pleading of affirmative defenses. We must avoid

hypertechnicality in pleading requirements and focus, instead, on enforcing the

actual purpose of the rule.” Hassan, 842 F.2d at 263. When a plaintiff has notice

that an affirmative defense will be raised at trial, the failure of the defendant to

plead the affirmative defense does not prejudice the plaintiff, and it is not error for

the district court to hear evidence on the issue. Id. (citations omitted).

      The district court did not err when it rejected Hewitt’s alternative theory of

an oral contract. Hewitt has not alleged any prejudice or surprise by the failure of

Crystal to plead the affirmative defense. Hewitt had ample notice that Crystal

denied any assignment of the contract. Hewitt attempted to salvage his complaint

by arguing, in the alternative, that the assignment was oral, but the district court

correctly concluded that any oral assignment was invalid under the statute of

frauds.

      Hewitt also contends that the district court erred when it dismissed his

                                           4
“claims” of “failure to pay Hewitt any wages during the final two weeks of

employment” and “failure to timely submit Hewitt a ‘144 letter’ so that he could

timely sell his stock before the value dropped,” but we disagree. These alleged

damages depend on a valid contract, which Hewitt failed to prove. The district

court did not err when it granted Crystal judgment as a matter of law.

      Hewitt advanced the same arguments to the district court in his motion to

alter or amend the judgment as he did in this Court. Because these arguments fail,

the district court did not abuse its discretion when it denied Hewitt’s motion to

alter or amend the judgment.

      The judgment as a matter of law in favor of Crystal is

      AFFIRMED.




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