opinion: Fredrick B. STROTHMAN, Plaintiff-Appellant, v. Adam GEFREH, Richard Paynter, Arthur Bleecher, Carl Panzarella, Marvin Harmatz, Jack Bunten, John Wilcox, Defendants-Appellees.
  No. 85-1938.
  United States Court of Appeals, Tenth Circuit.
  Jan. 12, 1987.
  David S. Yost of Denver, Colo., for plaintiff-appellant.
  Robert N. Miller, U.S. Atty., Nancy E. Rice, Asst. U.S. Atty., and Janis E. Chapman, Asst. U.S. Atty., Denver, Colo., for defendants-appellees.
  Before HOLLOWAY, Chief Judge, SEYMOUR, and BALDOCK, Circuit . Judges.
  SEYMOUR, Circuit Judge.
  Frederick Strothman appeals the district court’s order granting summary judgment to defendants. In Strothman’s previous appeal of this case, we held that defendants were entitled to official immunity from Strothman’s allegation of defamation. Strothman v. Gefreh, 739 F.2d 515 (10th Cir.1984). Upon remand for further consideration of the remaining claims, the district court concluded, after additional discovery, that defendants are also absolutely immune with respect to Strothman’s allegations that defendants conspired to remove him from office and engaged in extreme and outrageous conduct, 603 F.Supp. 256. Viewing the evidence in a light most favorable to Strothman, see Lindley v. Amoco Prod. Co., 639 F.2d 671, 672 (10th Cir.1981), we affirm.
  As a threshhold matter, Strothman contends that defendants waived the immunity defense by not specifically pleading it in their answer. Strothman’s contention comes far too late to avoid a decision on the immunity issue. In the lower court proceedings and the first appeal of this case, Strothman opposed defendants’ immunity claim on the merits, without ever objecting on the basis of a waiver. Not until late in the proceedings on remand did he contend that defendants’ waived their immunity defense. Moreover, after our disposition of the first appeal, Strothman can hardly claim prejudice, since he was clearly on notice of this defense. Under the circumstances, we conclude that the immunity issue is properly before us. See Jones v. Miles, 656 F.2d 103, 107 n. 7 (5th Cir.1981); Hayes v. Philadelphia Transp. Co., 312 F.2d 522, 523 (3d Cir.1963) (contention that defendants failed to properly raise defense came too late to avoid a decision on the merits on the basis of technicalities).
  Strothman also argues that summary judgment was improper because defendants’ motion was not properly supported under Fed.R.Civ.P. 56(e), the burden of presenting evidence was in effect improperly placed upon him, and the court improperly gave evidentiary significance to statements made by defendants’ counsel. The district court, however, recognized the problem of relying on defendants’ counsel’s statements, reopened the case, and fully reviewed the evidence and record, before reaffirming its order granting summary judgment. In addition, it is clear that in supporting a motion for summary judgment, a defendant need not affirmatively negate a plaintiff’s factual allegations if, taken as true, those allegations are insufficient to withstand a motion for summary judgment. See Celotex Corp. v. Catrett, — U.S. —, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). In any case, we think that the district court’s reconsideration of the matter cured any technical defects that may have existed when its initial order was entered.
  Addressing the merits of the immunity defense, Strothman contends that although defendants’ written complaints may be immune with respect to the defamation claim, the same and similar complaints, statements, and letters are not protected with respect to his claims of conspiracy and extreme and outrageous conduct. He also asserts that because these actions were taken in pursuance of an alleged agreement or “conspiracy”, they are not immune. We disagree.
  First, although Strothman contends that defendants’ actions went “far beyond” the complaints that formed the basis for his defamation claims, he failed to allege any specific acts that are of a different nature than those already held to fall within the scope of official immunity. Characterizing defendants’ conduct as “conspiratorial” and “extreme and outrageous,” without identifying conduct other than criticisms made in office memoranda, statements made to other agency personnel, and letters and visits to Members of Congress regarding Strothman’s performance, was insufficient to withstand the motion for summary judgment. Nor does alleging that defendants wrongfully “agreed” to engage in such otherwise immune conduct remove it from the protection of immunity. In essence, Strothman’s characterization of defendants’ conduct merely restates his contention that defendants acted wrongfully and maliciously. It is clear, however, that allegations of malice will not remove actions from the “scope of employment” nor defeat immunity. See Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959) (malice alleged); Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896) (same).
  After reviewing the record, including the depositions and discovery material purporting to support Strothman’s remaining claims, we conclude that the district court properly applied our analysis in Strothman, 739 F.2d 515, and correctly ordered summary judgment for defendants.
  AFFIRMED.
instruction: What follows is an opinion from a United States Court of Appeals.
  Intervenors who participated as parties at the courts of appeals should be counted as either appellants or respondents when it can be determined whose position they supported. For example, if there were two plaintiffs who lost in district court, appealed, and were joined by four intervenors who also asked the court of appeals to reverse the district court, the number of appellants should be coded as six.
  In some cases there is some confusion over who should be listed as the appellant and who as the respondent. This confusion is primarily the result of the presence of multiple docket numbers consolidated into a single appeal that is disposed of by a single opinion. Most frequently, this occurs when there are cross appeals and/or when one litigant sued (or was sued by) multiple litigants that were originally filed in district court as separate actions. The coding rule followed in such cases should be to go strictly by the designation provided in the title of the case. The first person listed in the title as the appellant should be coded as the appellant even if they subsequently appeared in a second docket number as the respondent and regardless of who was characterized as the appellant in the opinion.
  To clarify the coding conventions, consider the following hypothetical case in which the US Justice Department sues a labor union to strike down a racially discriminatory seniority system and the corporation (siding with the position of its union) simultaneously sues the government to get an injunction to block enforcement of the relevant civil rights law. From a district court decision that consolidated the two suits and declared the seniority system illegal but refused to impose financial penalties on the union, the corporation appeals and the government and union file cross appeals from the decision in the suit brought by the government. Assume the case was listed in the Federal Reporter as follows:
  United States of America,
  Plaintiff, Appellant
  v
  International Brotherhood of Widget Workers,AFL-CIO
  Defendant, Appellee.
  International Brotherhood of Widget Workers,AFL-CIO
  Defendants, Cross-appellants
  v
  United States of America.
  Widgets, Inc. & Susan Kuersten Sheehan, President & Chairman
  of the Board
  Plaintiff, Appellants,
  v
  United States of America,
  Defendant, Appellee.
  This case should be coded as follows:Appellant = United States, Respondents = International Brotherhood of Widget Workers Widgets, Inc., Total number of appellants = 1, Number of appellants that fall into the category "the federal government, its agencies, and officials" = 1, Total number of respondents = 3, Number of respondents that fall into the category "private business and its executives" = 2, Number of respondents that fall into the category "groups and associations" = 1.
  Note that if an individual is listed by name, but their appearance in the case is as a government official, then they should be counted as a government rather than as a private person. For example, in the case "Billy Jones & Alfredo Ruiz v Joe Smith" where Smith is a state prisoner who brought a civil rights suit against two of the wardens in the prison (Jones & Ruiz), the following values should be coded: number of appellants that fall into the category "natural persons" =0 and number that fall into the category "state governments, their agencies, and officials" =2. A similar logic should be applied to businesses and associations. Officers of a company or association whose role in the case is as a representative of their company or association should be coded as being a business or association rather than as a natural person. However, employees of a business or a government who are suing their employer should be coded as natural persons. Likewise, employees who are charged with criminal conduct for action that was contrary to the company policies should be considered natural persons.
  If the title of a case listed a corporation by name and then listed the names of two individuals that the opinion indicated were top officers of the same corporation as the appellants, then the number of appellants should be coded as three and all three were coded as a business (with the identical detailed code). Similar logic should be applied when government officials or officers of an association were listed by name.
  Your specific task is to determine the total number of appellants in the case that fall into the category "private business and its executives". If the total number cannot be determined (e.g., if the appellant is listed as "Smith, et. al." and the opinion does not specify who is included in the "et.al."), then answer 99.