The Lawletter Vol 37 No 6
We have written often in The Lawletter about what is now required for a plaintiff to plead claims in federal court that will survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) in light of the Supreme Court's decisions in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). But do the heightened pleading standards formulated in Twombly and Iqbal also apply to affirmative defenses asserted by the defendant against those claims? That issue has split the federal courts that have addressed it.
Part of the Supreme Court's rationale for adopting the more exacting "plausibility" standard for reviewing the sufficiency of a plaintiff's complaint was found in the language of Rule 8(a)(2), which requires "[a] pleading that states a claim for relief" to contain, among other things, "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" Fed. R. Civ. P. 8(a)(2) (emphasis added); see Iqbal, 556 U.S. at 679 ("But where the well‑pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" (quoting Fed. R. Civ. P. 8(a)(2))). By contrast, the portion of Rule 8 dealing with defenses generally requires only that a party, in responding to a pleading, "state in short and plain terms its defenses to each claim asserted against it[.]" Fed. R. Civ. P. 8(b)(1). Likewise, Rule 8(c), which deals specifically with affirmative defenses, requires the party to "affirmatively state any avoidance or affirmative defense[.]" Fed. R. Civ. P. 8(c)(1).
Some of the district courts have relied, in part, on the differences in the language of these subsections in holding that the Twombly/Iqbal standard does not apply to the pleading of affirmative defenses. See, e.g., Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1258 (D. Kan. 2011) (finding these differences "significant," in that the "showing" requirement in subsection (a) does not appear in subsections (b) and (c) governing defenses). These courts have also considered that the issue arises in the context of a motion to strike an "insufficient defense" under Rule 12(f), see id. at 1257, and such motions are "highly disfavored" because they are often used by the movant "simply as a dilatory tactic," FTC v. Hope Now Modifications, LLC, No. 09-1204, 2011 WL 883202, at *1 (D.N.J. Mar. 20, 2011) (internal quotation marks omitted). In addition, another one of the considerations underlying the adoption of a higher pleading standard for complaints—not subjecting a defendant to discovery in favor of "a plaintiff armed with nothing more than conclusions," Iqbal, 556 U.S. at 679—does not apply to a defendant who is "already subjected to discovery." Hope Now, 2011 WL 883202, at *3.
While this reasoning appears sound, the majority position currently favors applying the Twombly/Iqbal standard to the pleading of affirmative defenses. See, e.g., EEOC v. LHC Group, Inc., No. 1:11CV355-LG-JMR, 2012 WL 3242168, at *2 (S.D. Miss. Aug. 7, 2012); Falley, 787 F. Supp. 2d at 1256-57 (collecting cases). Courts in the majority have pointed out that "[p]leading requirements are intended to ensure that an opposing party receives fair notice of the factual basis for an assertion," whether it is contained in a claim or in a defense. Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, 536 (D. Md. 2010). Moreover, the application of the higher pleading standard will also "discourage defendants from asserting boilerplate affirmative defenses that are based upon nothing more than some conjecture that [they] may somehow apply." Id. (internal quotation marks omitted).For now, there is no definitive resolution to this issue. As such, practitioners asserting affirmative defenses in federal court will have to research the question in the particular court in which they are appearing before pleading, so as to determine how much factual detail will be required to withstand a potential Rule 12(f) motion to strike the defenses.