CatherineFrizell J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE.

Disagreement among United States district courts as to whether the plausibility pleading standard

ReestablishingBalance:TwomblyIqbalandAffirmativeDefenses

for claims set forth by the Supreme Court in Bell Atlantic v. Twombly also extends to affirmative defenses pled by defendants has spurred a body of scholarly work.1 Affirmative defenses offer the defendant a complete defense in some cases and also give plaintiffs notice that allows them to carefully tailor their discovery. This paper will show how applying the Twombly and Iqbal analysis (TwomblyIqbal) to affirmative defenses adheres to the text and the intention of the Federal Rules, as well as Twomblys policy considerations. InPartI,thispaperprovidesahistoryastotheproceduralrulesandpleadingstandardsfor claimsandaffirmativedefensesinfederalcourts,includingthemodificationofthepleading standardforclaimsarticulatedinTwomblyandIqbal.InPartII,thispaperexaminestheconflicting argumentsdistrictcourts,havereliedonindecidingthattheplausibilitystandardsetforthby TwomblyandIqbal(TwomblyIqbal)doesordoesnotextendtoaffirmativedefenses.Notably,this issuehasyettoreachthecircuitcourts.Finally,inPartIII,thispaperarguesongroundsof procedure,precedent,andpolicythatcourtsshouldextendTwomblyIqbaltoaffirmativedefenses. I. PROCEDUREANDPOLICY:PLEADINGINTHEFEDERALCOURTS PartI.ofthispaperexploresthefederalproceduralrulesandpleadingstandard.PartI.A.

introducestheFederalRulesandgivesabriefaccountoftheirpurposeinfederalcourts,andthe FederalCourtsroleinamendingandinterpretingtherules.PartI.Btracestheevolutionofvariant
1See,e.g.AnthonyGambol,TheTwomblyStandardforAffirmativeDefenses:WhatisGoodfortheGooseisGoodforthe

Gander,79FordhamLawReview2173(2011);ArthurR.Miller,FromConleytoTwomblytoIqbal:ADoublePlayonthe FederalRulesofCivilProcedure,60DUKEL.J.1,94(2010);RyanMize,FromPlausibilitytoClarity:AnAnalysisofthe ImplicationsofAshcroftv.IqbalandPossibleRemedies,58U.Kan.L.Rev.1245(2010).

Electronic copy available at: http://ssrn.com/abstract=1957710

CatherineFrizell 2 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. pleadingstandardsforclaimsinfederalcourtsfromthepromulgationoftheRulestothepresent day,includingtheSupremeCourtslandmarkdecisionsinTwomblyandIqbal,anddiscussesthe rationalebehindthemodernpleadingstandardandtheimpacttheheightenedpleadingstandard hashadonfederalcivillitigation.Then,PartI.Cdiscussestheevolutionofthepleadingstandard foraffirmativedefensespriortoTwombly. A. TheFederalRules TheFederalRulesgovernprocedureinallcivilactionsandproceedingsintheUnitedStates districtcourts,andshouldbeconstruedandadministeredtosecurethejust,speedy,and inexpensivedeterminationofeveryactionandproceeding.2CongressvestedtheSupremeCourt withtheauthoritytoprescribetheRulesanddescribedprocessesthroughwhichsuch prescriptionswouldbeenacted.Indoingso,Congressplacedrulemakingundertheinstitutionit perceivedtobeleastresponsivetointerestgrouppolitics.Commentatorscharacterizedthis transferofauthoritytothecourtstobethefirstprincipleofprocedurallawreform.3Specifically, CongressensuredthattheRulespromulgatedbytheCourtwouldbestrictlyproceduralinnature. TheFederalRulesarefrequentlyrevisedandamended,includingasubstantialrevisionin2007for thepurposesofclarifyingandsimplifyingtherules,makingthemeasiertouseandunderstand, withoutchangingsubstantivemeaning.4
2 3

SeePaulD.Carrington,Symposium:the50thAnniversaryoftheFederalRulesofCivilProcedure,1938 1988:III:TheFederalRulemakingProcessTheReportersSpeak:MakingRulestoDisposeofManifestly UnfoundedAssertions:AnExorcismoftheBodyofNonTransubstantiveRulesofCivilProcedure,137U.Pa. L.Rev.2067,20742076(1989)(internalcitationsomitted). 4 See Advisory Comm. On Advisory Comm. On Fed. Rules of Civil Procedure, Comm. On Rules of Practice and Procedure, Report of the Civil Rules Advisory Committee, available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/CV2009.pdf.

See Fed.R.Civ.P.1.

Electronic copy available at: http://ssrn.com/abstract=1957710

CatherineFrizell 3 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. ThestandardappliedtopleadingsthroughRule8isbestdeterminedbyconsideringthe proceduralsystemasawhole.WhilethegoalofRule8,toprovidenotice,hasalwaysbeenclear,the levelofspecificitythatRule8envisionedforpleadingshasnotalwaysbeenclear.Undoubtedly, Rule8spleadingstandardrequiresastatementofcircumstances,occurrences,andeventsin supportoftheclaim.5Inexaminingheightenedpleading,itiscriticaltodeterminethelevelof specificity.6 TheplainmeaningofRule8advancestheoverarchinggoalsoftheRules.Rule8statesthat pleadingsmustcontainshortandplainaboutwhereapartycansue,andwhatreliefitseeks.The centrallanguageofRule8theplaintiffmustfileashortandplainstatementoftheclaim showingthatthepleaderisentitledtoreliefhasremainedthesamesince1938.7Often,courts refertothefederalstandardasnoticepleadingbecause,onabasiclevel,thisstandardrequires theplaintifftonotifythecourtanddefendantofitsclaiminsimpleterms. B. TheFederalPleadingStandardforClaims:FromConleytoTwomblyandIqbal This section describes the evolution of the pleading standard for claims in the federal courts. First, it describes the long-standing Conley decision and courts interpretation of that pleading standard. Then, it explores Twomblys abrogation of the Conley standard and the adoption of the plausibility pleading standard for claims, which is clarified in Iqbal.

1. ThePatchworkApplicationoftheConleyStandard

55 6

See 12A Charles Alan Wright et al., Federal Practice and Procedure, Appendix F, at 777 (2002). See Christopher M. Fairman, Heightened Pleading, 81 Tex. L. Rev. 551, 556 (2002). 7 Compare Fed. R. Civ. P.8(a)(2)(1938)(current version at Fed. R. Civ. P. 8(a)(2), with Fed. R. Civ. P. 8(a)(2).

CatherineFrizell 4 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. In1957,thestandardforpleadingacomplaintinthefederalcourtswasdescribedinConleyv. Gibson.There,theSupremeCourtconcludedthatitsanacceptedrulethataplaintiffsallegations shouldnotbesubjecttodismissalunderRule12(b)(6)unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. 8 The Conley court justified the notice standard on several grounds. Most notably, the Conley court reasoned that parties would always have the opportunity to define the bases for their claims and to narrow their facts and issue through more liberal discovery and other pretrial procedures. Since the purpose of pleading under the Rules was to enable the case to be decided on the merits, the court determined that notice pleading would suffice, and allow the litigants to reach discovery. 9 EvenafterConleysnosetoffactsstandardwasonthebooks,courtsappliedvariant heightenedpleadingstandardsinsometypesofcases.Forinstance,inCERCLAcases,somecourts requirethatplaintiffspleadacognizableresponsecost,suchascleanupcostsoraremedial actionplan.10Thesecourtscitedtherisingcostoflitigation,andtheworseningcaseloadcrisis asreasonstoapplyaheightenedpleadingstandard.11Additionally,theCourtofAppealsforthe FifthCircuitbegandemandinggreaterpleadingspecificityforcivilrightsclaimsfiledunder42 U.S.C.1983.12Inemploymentdiscriminationcases,somecourtsappliedaheightenedpleading
8 9

Conley v. Gibson, 255 U.S. 41, 45-46 (1957). See Suzette Malveaux. Symposium Pondering Iqbal: Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 70 (2010). 10 See Christopher M. Fairman, The Myth of Notice Pleading, Ariz. L. Rev. 987, 1003 (Winter 2003). See also Cash Energy, Inc. v. Weiner, 768 F.Supp.892, 900 (D.Mass., 1991) (applying a heightened pleading standard to a CERCLA case because CERCLA involves many of the same circumstances that have led courts to invoke higher standards of specificity of pleading is enforced). 11 See Cash Energy, Inc. v. Weiner, 768 F.Supp. 892, 899 (D.Mass., 1991). 12 See, e.g., Palmerv.CityofSanAntonio,810F.2d514,516(5thCir.1987)(Wehavealsoconsistently requiredasection1983plaintifftostatespecificfactsandnotmerelyconclusoryallegations.),abrogatedby Leathermanv.TarrantCnty.NarcoticsIntelligence&CoordinationUnit,507U.S.163(1993).Section1983of theCivilRightsActallowsindividualstoseekredressforallegedviolationsofconstitutionallyprotected

CatherineFrizell 5 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. standard.Specifically,inDistrict Court 47, American Federation of State v. Bradley,theThirdCircuit requiredaclaimantallegingthathisemployerhademployedraciallydiscriminatorypoliciesto meetaheightenedpleadingstandard.There,thecourtheldthattheplaintiffhadmettherequisite standardofspecificitybecauseheallegedthetime,theplace,andthoseresponsibleinhis complaint.13Noteverylowercourtappliedthatstandard,however,andin1992,theSupremeCourt grantedcertiorariinLeathermanv.TarrantCountyNarcoticsIntelligenceandCoordinationUnitto resolvetheconflictamongtheCourtsofAppeals.14There,theCourtdismissedthecasedeclinedto applyaheightenedpleadingstandardtoclaimsinthecontextofa1983claimbroughtagainsta municipality,statingthatintheabsenceofajudicialamendment,litigantsinfederalcourtsmust relyonsummaryjudgmentandcontrolofdiscoverytoweedoutunmeritoriousclaimssooner ratherthanlater.15 Despitetheencroachingrequirementssetforthbythelowercourts,theCourtunanimously heldthataheightenedpleadingstandardconflictswiththeRules.16InSwierkiewiczv.SoremaN.A, theCourtembracednoticepleadingandruledthatitisimpropertodisposeofpotentially meritoriousclaimsatthepleadingstageoflitigation.Itisonlyafterpleadinganddiscoverythatthe factsaretrulyidentifiedandonlythenisitappropriatetoadjudicateunmeritoriousclaimsthrough
rightsunder,forexample,theDueProcessandEqualProtectionClausesoftheFourteenthAmendment.42 U.S.C.1983(2006);seealsoU.S.Const.amend.XIV,1(NoStateshall...depriveanypersonoflife,liberty, orproperty,withoutdueprocessoflaw;nordenytoanypersonwithinitsjurisdictiontheequalprotectionof thelaws.). 13 See District Court 47, American Federation of State v. Bradley, 795 F.2d 310, (C.A.3 (Pa.,1986). 14 See Leatherman v. Tarranty Cnty. Narcotics Intelligence & Coordination Unit, 505 U.S. 1203 (1992). (granting certiorari); see also Leatherman, 507 U.S. at 165 (explaining the rationale behind the grant of certiorari). 15 Heightened pleading standards as applied to claims could only be applied to claims brought against municipalities under 1983 through the formal rulemaking process, and not through judicial interpretation. See Leatherman, 507 U.S. 163, 168 (1993). See also Brooke D. Coleman, Recovering Access: Rethinking the Structure of Federal Rulemaking, 39 N.M.L. Rev. 261, 268 (2009). 16 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002).

CatherineFrizell 6 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. summaryjudgment.17EvenafterSwierkiewicz,somejurisdictionsrequiredspecificevidenceof unlawfulintenttobepleadedwhensubjectiveintentisanelementofacivilrightsclaim.Similarly, somejurisdictionsrequiredRICOclaimsbasedonmailorwirefraudtopleadscienterwithfacts givingrisetostronginferenceofintent.Thisrequiresaplaintifftopleadprediscoveryspecific factsconcerningthedefendantsstateofmindirrespectiveofRule9(b),whichallowsstateofmind tobeallegedgenerally.18Inthesecases,theheightenedpleadingstandardonlyappliedtoonepart oftheclaim,butcourtscouldessentiallyevisceratetheentireclaimbyusingthetargeted heightenedpleadingstandardjustaseffectivelyasthebroaderversionsoffactbasedpleading requirements.19In2007,thestandardforpleadingchangedwiththeSupremeCourts2007 decisioninTwombly. a. PlausibilityDefined:TheTwomblyIqbalStandard20 In 2007, in Bell Atlantic v. Twombly, the Supreme Court retired the no set of facts language from Conley and adopted a plausibility requirement.21 Now, a complaint must allege enough facts to state a claim to relief that is plausible on its face.22 There, the Court considered the proper pleadings standard in the context of an antitrust case. In its analysis, the Twombly court accepted the tenet that the court must accept a complaints allegations as true, but also stated that this tenet is inapplicable to threadbare
17 18

Id. Notably, in assessing the courts application of Twombly-Iqbal, at least one commentator characterizes courts application of Twombly-Iqbal as a new framework, as opposed to a new standard. See e.g. November 25, 2009 Memorandum from Andrea Kuperman to Civil Rules Committee and Standing Rules Committee Concerning the Application of Pleading Standards Post-Ashcroft v. Iqbal at 5, available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Iqbal_memo_121510.pdf 19 See Fairman, supra note 7, at 1004. 20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547 (2007). 21 Id. 22 Id.

CatherineFrizell 7 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. recitals of a cause of action's elements, supported by mere conclusory statements.23 Second, the court held that assessing whether a statement is conclusory or if it is plausible is a context-specific task that requires the reviewing court to draw on judicial experience and common sense. 24 The Court justified the plausibility pleading standard on several grounds. First, the Court examined the language of Rule 8 in examining its plausibility requirement. In order for a complaint to actually show a plaintiff is entitled to relief pursuant to Rule 8(a) (2), its allegations have to be plausible, not merely possible.25 Second, the Court cited the practical significance of a plausibility standard, alluding to its potential to save time, reduce significant costs related to discovery, diminish federal court backlog, and prevent settlement abuse.26 Finally, the Court contended that its new plausibility standard did not heighten the pleading standard or expand the scope of Rule 9s particularity requirement, a measure that can only be accomplished by the process of amending the Federal Rules, and not by judicial interpretation.27 The Courts decision in Ashcroft v. Iqbal extended the Twombly pleading standard to civil actions, including antitrust and discrimination suits.28 First, the Court, through Justice Souter, noted that the legal conclusions are given little weight under the plausibility standard, and are not entitled to the assumption of truth.29 Second, the Court emphasized under Twombly that a plaintiffs allegations must

23 24

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1940 (2009). Id. at 1950. 25 See Twombly, 550 U.S. 544, 574 (2007). 26 Id. at 557. 27 Id. at 569. (internal citations omitted). See also Suzette Malveaux, Front Loading and Heavy Lifting: How PreDismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 76 (2010). 28 Iqbal, 129 S.Ct. at 1953. 29 Id. at 1940.

CatherineFrizell 8 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. give rise to the level of plausibility. Evaluating a complaint under the standard is a context-specific task, which involves the courts use of judicial experience and common sense.30 In applying a two-step process of review for Rule 12(b)(6) motions to dismiss, the Court found that Iqbals pleading was insufficient.31 First, most of the allegations were not entitled to the assumption of truth because they were unsupported by factual allegations. Second, the well-pled factual allegations did not give rise to a plausible inference that Iqbal was entitled to relief. While the allegations were consistent with a discriminatory course of action by the petitioners, the allegations did not plausibly establish purpose because more likely explanations existed. The dissenters in Iqbal criticized the majoritys inability to articulate the standard for conclusory statements, arguing that the examples of sufficiently factual allegations selected by the majority were indistinguishable from other, more conclusory allegations.32 In a separate dissent, Justice Stephen Breyer defended the other procedural tools available to trial courts, stating neither the briefs nor the Courts opinion provides convincing grounds for finding these alternative case-management tools inadequate, either in general or in the case before us.33
30

Id. at 1950 (internal citations omitted). TheSupremeCourthassuggestedthatapplicationofRule56should alsobecontextspecific.Thoughconsistingofthesamebasisprinciples,theCourtnotedthatitshouldbe appliedwithspecialcautionincomplexantitrustlitigation.SeePollerv.ColumbiaBroadcastingSys.,368 U.S. 464, 473 (1962). Seegenerally6J.MOORE,FEDERALPRACTICEP56.17(2ded.1982)(examiningthegrantor denialofsummaryjudgmentinavarietyofdifferentactionsandconcludingthatthesamebasicprinciples applytoalltypesofclaims).SeealsoPaulD.Carrington,Symposium:the50thAnniversaryoftheFederal RulesofCivilProcedure,19381988:III:TheFederalRulemakingProcessTheReportersSpeak:Making RulestoDisposeofManifestlyUnfoundedAssertions:AnExorcismoftheBodyofNonTransubstantiveRules ofCivilProcedure,137U.Pa.L.Rev.2067(1989)(statingthatRule56initspresentorfutureformisneither inflexibleorincapableofadjustmenttorecognizedifferencesinlitigationsituations). 31 Iqbals controversial ruling has instigated legislative responses with the introduction of the Notice Pleading Act of 2009 and the Open Access to Courts Act of 2009, which both seek to reinstate the Conley standard for Rule 12(b)(6) motions. See The Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. 2 (2009) (introduced by Senator Arlen Specter on July 22, 2009 and co-sponsored by Senator Russ Feingold, the bill has been referred to the Senate Judiciary Committee); See also The Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. 2 (2009) (introduced by Representative Jerrold Nadler and co-sponsored by eighteen other members of Congress). 32 See Ashcroft v. Iqbal, 120 S.Ct. 1937, 1961 (2009). 33 See Ashcroft v. Iqbal, 120 S.Ct. 1937, 1962 (2009).

CatherineFrizell J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. b. Plausibility Refined: In Matrixx Initiatives, Inc. et. al. v. Siracusano

Over the last several years since Twombly and Iqbal were decided, district and circuit courts have struggled to apply the new standard. In Matrixx, the court reasoned that the company made a material representation or omission or that it acted with scienter because the complaint did not allege that Matrixx knew of a statistically significant number of adverse events requiring disclosure. In so reasoning, the court concluded that the materiality of adverse event reports cannot be reduced to a bright-line rule, and instead, must withstand a holistic analysis.34 In Matrixx Initiatives, Inc. et. al. v. Siracusano, et. al., a unanimous Supreme Court appeared to reject a bright-line test for determining whether the materiality requirement was satisfied. 35 There, the Court unanimously upheld the decision of the Court of Appeals in finding that the plaintiffs stated a claim for securities fraud under 10(b) of the Securities and Exchange Act and SEC Rule 10b-5 based on the pharmaceutical companys failure to disclose reports of adverse effects associated with a product. Despite the fact that the expert reports did not disclose a statistically significant number of adverse effects, the Court found that the plaintiffs complaint met the materiality requirement set forth in Basic Inc. v. Levinson, which states that 10(b)s materiality requirement was satisfied when there is a substantial likelihood that the disclosure of the omitted fact would have been viewed by the reasonable investor as having significantly altered the total mix of information made available.36 Furthermore, the Court found that the plaintiffs complaint satisfied Twombly because plaintiffs alleged facts that sufficed to raise a reasonable expectation that discovery will reveal evidence 37 and Iqbal because the complaint
34 35

See Matrixx v. Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1313 (2011). See Matrixx Initiatives, Inc. v. Siracusano,131 S.Ct. 1309 (2011). 36 See Basic v. Levinson, 485 U.S. 224 (1988). 37 See Twombly, 550 U.S. at 556.

CatherineFrizell 10 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. allowed the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. 38 In so doing, the Court held that the plaintiffs complaint, containing information provided to the pharmaceutical company by experts revealed a plausible connection between their medicinal product, Zicam Cold Remedy, and patients loss of smell. 39 The Court rejected the defendants argument, declining to adopt a bright-line rule to determine materiality. In so doing, the court rejected Matrixxs argument that rested on the premise that statistical significance is the only reliable indication of causation. Finding this premise flawed, the court rejected the argument, finding that a lack of statistically significant data does not mean that medical experts have no reliable basis for inferring a causal link between a drug and adverse events.40 Instead, the Court adopted a holistic analysis that considered the complaint as a whole in determining its materiality. There, the court reasoned that the respondents have alleged facts plausibly suggesting that reasonable investors would have viewed these particular reports as material. 41 Instead of measuring materiality based on a statistically sufficient number of reports linking Zicam and anosmia, the court viewed the complaints allegations as a whole, finding that the complaint alleged facts suggesting a significant risk to the commercial viability of Matrixxs leading product.42 The courts rejection of a bright-line rule in favor of a more holistic approach to assessing materiality should counter critics concerns that courts application of Twombly-Iqbal may result in the application of a slice and dice analysis in their determination of the materiality of complaints.43 In Matrixx, the Court reasoned that the plaintiffs allegations sufficed to raise a reasonable expectation that discovery
38 39

See Matrixx Initiatives 131 S.Ct. at 1323. Id. 40 See Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309 (2011). 41 See Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1314 (2011). 42 See Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1314 (2011). 43 See, e.g. Arthur Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke.L.J. 1, 27-28 (2010).

CatherineFrizell 11 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. will reveal evidence,44 ultimately satisfying the materiality requirement and allowing the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.45 Viewing the allegations in the complaint as a whole, and reasoning that the complaint alleged facts suggesting a significant risk to the commercial viability of Matrixxs leading product, the court adopted a context-specific holistic analysis of the complaints allegations.46 Specifically, in Matrixx, the court reasoned that the complaints allegations, taken collectively, give rise to a cogent and compelling inference that Matrixx elected not to disclose adverse event reports not because it believed they were meaningless but because they understood their likely effect on the market.47 While the full effects of Matrixx have yet to be seen, its possible that courts reluctant to strictly interpret Twombly-Iqbal will follow Matrixxs lead in interpretingpleadingsholisticallyinorderto determinewhetherthepleadingswereplausible.48Thisisespeciallytruegiventhatsomelower courtsadoptedaholisticapproachtointerpretingpleadingsinsomecontextsevenbefore Matrixx.49The fact that Matrixx arguably affirms decisions that adopt a context-specific approach and apply Twombly-Iqbal differently to different types of cases may calm critics concerns that Iqbal actually

44 45

Twombly, 550 U.S. at 556. Id. 46 See Matrixx Initiatives, Inc. v. Siracusano, 131 S.Ct. 1309, 1312 (2011). 47 See Matrixx Intiatives, Inc. v Siracusano, 131 S.Ct 131 S.ct. 1309, 1313 (2011)(internal citations omitted). 48 Bolstering this interpretation is a recent circuit court opinion penned by Justice Souter, who also authored Twombly, explaining that a plausible but inconclusive inference from pleaded facts will survive a motion to dismiss. Sepulveda-Villarini v. Department of Education of Puerto Rico, 628 F.3d 25 (Puerto Rico 2010); see also Frank v. Dana Corp., 646 F.3d 954, 961 (Ohio, 2011)(adopting the holistic analysis post-Matrixx and claiming that the courts former method of reviewing each allegation individually before holistically loses the forest for the trees). 49 See, e.g. In re Washington Mutual, Inc. Securities, Derivative & Erisa Litigation, 259 F.R.D. 490, 503 (Wash., 2009) (applying a holistic analysis to plaintiffs complaint, which contained an overwhelming number of relevant allegations only served to underscore the need for proper structural organization and coherent pleading).

CatherineFrizell 12 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. establishes a more demanding pleading standard than Twombly, and could ultimately lead to the dismissal of weak, but meritorious actions.50

C. Affirmative Defenses Rule 8 discusses requirements for affirmative defenses, as well as claims. Under Fed. R. Civ. P. 8(c), an affirmative defense is a defense that does not negate the elements of the plaintiffs claim, but instead precludes liability even if all of the elements of the plaintiffs claim are proven. 51 This section introduces the pleading standard for affirmative defenses in federal court, as it existed before Twombly. First, I discuss how defendants have traditionally pled affirmative defenses. Then, I describe the standard to which affirmative defenses are held when they are challenged by Rule 12(f) motions to strike them from pleadings.

1. The Traditional Manner of Pleading Affirmative Defenses Prior to Twombly, generally stated affirmative defenses were usually sufficient so long as they provided fair notice of the nature of the defense. In order to reach this conclusion, federal circuit courts

50

Those that speculate that Iqbal calls for a stricter standard than Twombly reason that the earlier case only requires the complaint to suggest plausibility, whereas the later case calls for a reasonable inference of plausibility. Additionally, these critics state that Iqbal seems to favor a polarized evaluation of the complaint by stating that conclusions may be disregarded on a motion to dismiss, which seems to be inconsistent with Matrixxs holistic approach to evaluating a pleading. See, e.g. Nathan R. Sellers, Defending the Formal Federal Civil Rulemaking Process: The Court Should Not Amend Procedural Rules Through Judicial Interpretation, 42 Loy. U. Chi. L.J. 327, 370 (2011); Nathan R. Sellers, Defending the Formal Federal Civil Rulemaking Process: The Court Should Not Amend Procedural Rules Through Judicial Interpretation, 42 Loy. U. Chi. L.J. 327, 370 (2011) (arguing that a litigation explosion is inevitable as courts and litigants try to determine what is required to make the claim plausible). Courts lenient context-specific application of Twombly-Iqbal is also likely to appease the deferential, but concerned Advisory Committee that are waiting and seeing how the lower federal courts actually apply the cases. See Miller, supra, note 34, at 100. 51 See Fed. R. Civ. P. 8(c)

CatherineFrizell 13 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. reasoned that all pleadings are subject to the same requirements under Rule 8.52 Thus, the circuit courts determined that the Conley notice pleading standard applied not just to pleading claims under Rule 8 (a)(2), but to pleading affirmative defenses under Rule 8 (c) as well. Following Conley, some courts held affirmative defenses to a standard that resembled the standard set forth in Conley, reasoning that affirmative defenses which amount to nothing more than mere conclusions of law and not warranted by any asserted facts have no efficacy.53 Still, other courts held affirmative defenses to a heightened pleading standard that mirrored their analysis for all Rule 8(a) pleadings.

2. Judicial Assessment of the Sufficiency of Affirmative Defense Pleadings: 12 (f) Motions to Strike The Federal Rules provide alternative mechanisms for plaintiffs who wish to remove inappropriate affirmative defenses from an answer in the form of Rule 12(f). While striking affirmative defenses can allow the court and parties to avoid spending time and money litigating, the Court often disfavors motions to strike.54 Traditionally, courts have applied a high standard to motions to strike affirmative defenses, only denying motions to strike when the moving party is able to show that the pleadings attacked are prejudicial to the moving party, the insufficiency of the motion is clearly apparent and the

52

See, e.g., Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999) (An affirmative defense is subject to the same pleading requirements as is the complaint.); Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989) (Affirmative defenses are pleadings and, therefore, are subject to all pleading requirements of the Federal Rules of Civil Procedure.); Marine Overseas Servs., Inc. v. Crossocean Shipping Co., Inc. 791 F.2d 1227, 1233 (5th Cir. 1986) (The pleading of affirmative defenses is governed by the same liberal standards as those for a complaint. (citing C. WRIGHT & A. MILLER, 5 FEDERAL PRACTICE & PROCEDURE 1274 at 323 (1969). 53 Shechter v. Comptroller of City of New York, 79 F.3d 265, 270 (2d. Cir. 1996); 54 See J & J Sports Productions, Inc. v. Mendoza-Govan, No. C 10-05123, slip op. at 1 (N.D.Cal., 2011).

CatherineFrizell 14 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. motion does not present relevant questions of law or fact. Considering that pleadings are not usually presented to a jury, this is a high standard.55 Motions to strike were further neutralized with the application of Conleys liberal pleading standard. Due to the negligible threat posed by a motion to strike, the pleading of boilerplate affirmative defenses became commonplace and accepted in some courts, with litigants often pleading little more than the name of a defense--- e.g. waiver or estoppel. 56 With the application of the heighted pleading standard to affirmative defenses, affirmative defenses could begin to be the subject of Rule 12(f) motions to strike at the pleading stage.57 Following Iqbal, litigation costs will most likely increase as litigants test the waters in order to determine how courts are interpreting the plausibility standard. 58 While many concede that the initial increase in litigation costs is inevitable, increased litigation will allow courts to have the opportunity to develop case law that determine the pleading standard for both claims and affirmative defenses.

II. DOESTHETWOMBLYSTANDARDAPPLYTOAFFIRMATIVEDEFENSES? A. Twombly-Iqbal Does Not Extend to Affirmative Defenses

55

726 PLI/Lit 37, 42; Practising Law Institute, CIVIL LITIGATION BEFORE TRIAL -- RESPONDING TO THE ACTION, May/June, 2005 56 See Shinew v. Wszola, No. 08-14256, 2009 WL 1076279, at *2 (E.D.Mich. Apr. 21, 2009 (noting that the assertion of boilerplate affirmative defenses is not uncommon and has been widely employed and tolerated as a result of notice pleading); See also Tyco Fire Products LP v. Victaulic Co., 2011 WL 1399847, at *6 (reasoning that when served with a boilerplate affirmative defense, there is a need for a more factual understanding of a claim as to permit the formulation of a response, a party served with an affirmative defense is generally not required or permitted to file any responsive pleading at all.) See Fed.R.Civ.P. 7(a). 57 See Miller, supra note 34, at 102.(internal citations omitted). 58 While the rates of motions to dismiss vary from month to month, the report shows how the rate of motions to dismiss granted in Civil Rights Employment Cases (44%) in the six months post-Iqbal is actually less than the rate of motions to dismiss granted in Civil Rights Employment in the six months pre-Iqbal (48%). Likewise, the rate of motions to dismiss for civil rights other cases in the six months preceding Iqbal was equivalent to the rate of motions to dismiss for civil rights other cases in the six months following Iqbal. An example of the initial spike in motion practice is illustrated by the Motions to Dismiss: Information on Collection of Data, Prepared by Statistics Division, Administrative Office of the U.S. Courts, Revised: February 12, 2010.

CatherineFrizell 15 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. AminorityofcourtshavefoundthatTwomblyIqbaldoesnotapplytoaffirmativedefenses. Thissectiondiscussesthemostcommonargumentsofthosecourts.First,itexploresjudicial interpretationofRule8.Next,itconsidersotherRules,policies,andjudicialconceptsoffairness thatinfluencecourtsreasoning.Finally,itexaminesthosecourtsthathaveselectednottorule uponthecontroversywhenpresentedwiththeopportunity,butwhoseanalysissuggeststhat applyingTwomblyIqbalwouldbeinconsequentialbecausethenoticepleadingstandardthey appliedpriortoTwomblyrequiredthesamelevelofheightenedpleadingthatTwomblyIqbal requires.

1.Rule 8 Differentiates Between Claims and Affirmative Defenses Courts that decline to apply the heightened pleading standard to both claims and affirmative defenses adopt one of three different strands of analysis. For instance, some courts rest their analysis on the differences in semantics between Rule 8 (a) which requires a showing that the pleader is entitled to a claim of relief,59 and Rule 8 (c) which requires that a party must affirmatively state any avoidance or affirmative defense.60 These courts reason that since Twombly was decided under Rule 8(a) and its language does not suggest that its standard was intended to extend to affirmative defenses under Rule 8(c), both the structure and language of the Federal Rules contemplate different treatment of claims and affirmative defenses.61 Other courts apply the more general language of Rule 8 (b) to affirmative
59 60

Fed. R. Civ. P. 8 (a) Fed. R. Civ. P. 8 (c) 61 See,e.g.J&JSportsProductions,Inc.v.Khachatrian,SlipCopy,2011WL720049(D.Ariz.,Feb.23,2011); Falleyv.FriendsUniversity,slipop.(D.Kan.,2011);seeE.E.O.C.v.CourtestyBuildingServices,Inc.,Slipcopy, 2011WL208408*2(N.D.Tex.,Jan.21,2011)(holdingthatthesincetherequirementinRule8(a)toshow entitlementtoreliefisessentialtotheholdingsofIqbalandTwombly,andconsideringthatthisrequirement doesnotapplytoRule8(b)and(c),thecourtdeclinestoextendIqbalandTwomblysplausibilitystandardto thepleadingofaffirmativedefenses);seeMcLemorev.RegionsBankNos.3:08cv0021McLemorev.Regions

CatherineFrizell 16 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. defenses. Still, other courts decline to decide whether Rule 8(b) or Rule 8(c) apply to affirmative defenses, and instead hold that it is immaterial as to which rule applies because either requirement is markedly less demanding than that of Rule 8(a), where a pleading must show an entitlement to relief.62

2. What is Good for the Goose is Not Always Good for the Gander In addition to citing the language of Rule 8 as one concern for those district courts that have declined to extend Twombly-Iqbal to affirmative defenses, some courts have purported to rely upon other Federal Rules, policy considerations, and seemingly on notions of simple fairness to defendants in their decisions not to extend Twombly-Iqbal. Some courts reason that the difference in time available to plaintiffs and defendants to make inquiries before making presentations to the court justifies differences in treatment at the pleading stage. To these courts, it is unfair to extend Twombly-Iqbal to defendants when a plaintiff has months or years
Bank,Nos.3:08cv0021,3:08cv1003,2010WL1010092,at*12(M.D.Tenn.Mar.18,2010)(Unlike subsections(a)and(b),subsection(c)doesnotincludeanylanguagerequiringthepartytostateanythingin shortandplainterms.);seeCharleswellv.ChaseManhattanBank,N.A.No.01119,2009WL4981730at*4 (D.Vi.Dec.8,2009)(distinguishingRule8(a)fromRule8(c),andnotingthatRule8(a)requiresashowing, whileRule8(c)onlyrequiresapleadertostateanaffirmativedefense).ButseeHoldbrookv.SaiaMotor FreightLine,LLC,2010U.S.Dist.LEXIS29377(D.Colo.Mar.8,2010)(holdingthatTwomblyandIqbalareno thestandardforaffirmativedefenses);Charleswellv.ChaseManhattanBank,N.A.,2009U.S.Dist.LEXIS 116358(D.V.I.Dec.8,2009)(ThisCourtconcludesthatthepleadingstandardsarticulatedinTwomblyand Iqbaldonotextendtoaffirmativedefenses.TwomblyinterpretedRule8(a)(2),whichstatesthatapleading mustcontainashortandplainstatementoftheclaimshowingthatthepleaderisentitledtorelief.Fed.R. Civ.P.8(a)(2).Rule8(c)(1),whichprovidesforaffirmativedefenses,statesonlythatapartymust affirmativelystateanyavoidanceoraffirmativedefense.Fed.R.Civ.P.8(c)(1).Thereisnorequirement underRule8(c)thatadefendantshowanyfactsatall.Thus,theCourtrejectsplaintiffs'argumentsonthis issue.);FirstNat'lIns.Co.ofAm.v.CampsServs.,Ltd.,2009U.S.Dist.LEXIS149,at*45(E.D.Mich.2009) (holdingthatTwomblyisnotthestandardforaffirmativedefenses);FirstNat'lIns.Co.ofAm.v.Professional PoolTechs,LLC,2009U.S.Dist.LEXIS149,at*5(E.D.Mich.2009)(holdingthatTwombly'sanalysisofthe shortandplainstatementrequirementofRule8(a)isinapplicableto[motionstostrikeaffirmative defenses]);Romantinev.CH2MHillEng'rs,Inc.,2009U.S.Dist.LEXIS98699,*1(W.D.Pa.Oct.23,2009) (decliningtoapplyTwomblytoeitheraffirmativeornegativedefenses);Am.Resources.Ins.Co.v.EvolenoCo., LLC,2007U.S.Dist.LEXIS55181atn.7(S.D.Ala.2007)(holdingthatTwomblyisnotthestandardfor affirmativedefenses);Westbrookv.ParagonSys.,Inc.,2007U.S.Dist.LEXIS88490,at*1*3(S.D.Ala.Nov.29, 2007)(refusingtoapplyTwomblytoamotiontostrikeaffirmativedefensesbydistinguishingRule8(c)from Rule8(a);holdingthatTwombly'splausibilitystandarddoesnotapplytoaffirmativedefenses). 62 See Falley v. Friends University, Slip Copy, 2011 WL 1429956 (D.Kan.,2011 Apr. 14, 2011).

CatherineFrizell 17 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. to investigate a claim before pleading, while a defendant typically has [twenty-one] days to serve an answer. 63 For example, in Falley v. Friends University, the court declined to apply Twombly-Iqbal to affirmative defenses, stating that it found logic in maintaining a higher standard for pleading than defenses given the twenty-one day time limit, and it makes sense to require a more factual description of a plaintiff than a defendant under these circumstances, especially because if a defendant fails to state an affirmative defense in its answer, it risks waiver. 64 Judicial efficiency and litigation cost concerns are also concerns for courts declining to extend Twombly-Iqbal to affirmative defenses. These courts often reason that requiring greater notice conflicts with the longstanding truism that motions to strike are disfavored and requiring more detailed defensive pleadings will inevitably lead plaintiffs to file more motions to strike. 65 Concerned that extending Twombly-Iqbal to affirmative defenses may compel defendants to move the court more frequently for permission to amend its answer after discovery to add affirmative defenses, these courts reason that extending Twombly-Iqbal to affirmative defenses may lead to parties [bogging] down litigation by filing and fighting motions to strike answers or defenses prematurely. 66 Plaintiffs would naturally resist those motions, which would lead to another round of motion practice.67 Since the remedy for striking defenses at this stage of the litigation is often to allow amendment, these courts reason that applying Twombly-

63Id.

See also Holdbrook v. SAIA Motor Freight Line, LLC , No. 09-cv-02870-LTB-BNB, 2010 WL 865380, at *2 (D.Colo. Mar.8, 2010) (declining to apply Twombly and Iqbal to affirmative defenses in part because a defendant is given only 20 days to respond to a complaint and assert its affirmative defenses). 64 See Fed.R.Civ.P. 12(g)(2),(h)(1)(A). 65 See Fiorentino v. Cabot Oil & Gas Corp., 2010 EL 4595524, *2 (M.D.Pa. Nov. 15, 2010); Tyco Fire Products LP v. Cictaulic Co., 2011 WL 1399847 *6 (E.D.Pa., April 12, 2011). 66 Falley v. Friends University, 2011 WL 1429956 at *4 (D.Kan.,2011. April 14, 2011). 67 Id.

CatherineFrizell 18 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. Iqbal would result in increased motions practice with little practical impact on the cases forward progression. 68 Forinstance,inWellsFargo&Co.v.U.S.,thecourtheldthattherequirementunderIqbal thataplaintiffmustpleadsufficientfactstostateaplausibleclaimforreliefiswhollyinapplicable topleadingofaffirmativedefensesbytheplaintiff.ApplyingTwomblyIqbaltoaffirmative defenseswouldforcedefendantstopleadfeweraffirmativedefensesandthen,aftertaking discovery,movetheCourtforpermissiontoamendtheiranswerstoaddaffirmativedefensesata laterstageinlitigation.69Inacknowledgingthatitwasfailingtoadoptthemajorityposition,the TenthCircuitdistrictcourtinLanev.Pagedeclinedtoextendtheheightenedpleadingstandardto affirmativedefenses,ultimatelyconcludingthatthepragmaticconcernsweighagainstrequiring defendantstopleadfactualallegationssupportingaffirmativedefenses.70 In rejecting a motion to strike under 12 (f) as the appropriate remedy for when an affirmative defense does not provide enough facts to give fair notice of the claim for the plaintiff to respond properly, some courts have argued that the proper motion to file is a Rule 12(e) motion for a more definite statement. Similarly, attorneys, law firms, and parties that state factual contentions that do not have evidentiary
68

See also Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 652 (D. Kan. 2009) (D.Kan. Dec. 22, 2009); (The majority of cases applying the Twombly pleading standard to affirmative defenses and striking those defenses have permitted the defendant leave to amend.). 69 Wells Fargo & Co. v. U.S. , 2010 WL 4530158 (D.Minn., Oct. 27, 2010). 70 See, e.g., Castillo v. Roche Labs Inc., No. 1020876CIV, 2010 WL 3027726, at *3 (S.D.Fla. Aug. 2, 2010); Palmer v. Oakland Farms, Inc., No. 5:10cv00029, 2010 WL 2605179, at *4 (W.D.Va. June 24, 2010); CTF Dev., Inc. v. Penta Hospitality, LLC, No. C 0902429 WHA, 2009 WL 3517617, at *78 (N.D.Cal. Oct. 26, 2009); Tracy v. NVR, Inc., No. 04CV6541 L, 2009 WL 3153150, at *7 (W.D.N.Y. Sept. 30, 2009); Shinew v. Wszola, No. 08 14256, 2009 WL 1076279, at *5 (E.D.Mich. Apr. 21, 2009); Safeco Ins. Co. of Am. v. O'Hara Corp., No. 08 CV10545, 2008 WL 2558015, at *1 (E.D. Mich. June 25, 2008); Holtzman v. B/E Aerospace, Inc., No. 0780551 CIV, 2008 WL 2225668, at *2 (S.D.Fla. May 28, 2008). A number of courts, however, have determined that Twombly does not apply to affirmative defenses. See, e.g., Lane v. Page, F.R.D. , No. 061071 JB/ACT, 2011 WL 693176, at *614 (D.N.M. Jan. 14, 2011); McLemore v. Regions Bank, Nos. 3:08cv0021, 3:08cv 1003, 2010 WL 1010092, at *12 (M.D.Tenn. Mar. 18, 2010); Holdbrook v. Saia Motor Freight Line, LLC, No. 09 cv02870LTBBNB, 2010 WL 865380, at *2 (D.Colo. Mar. 8, 2010).

CatherineFrizell 19 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. support or that are not likely to have evidentiary support after reasonable opportunity for further investigation or discovery can be subject to sanctions.71 Still, other courts, in interpreting TwomblyIqbal narrowly, claim that Twombly-Iqbal was devised keep plaintiffs in nuisance suits that drive extortionate settlements out of court.72

3. Courts Have Been Reluctant to Extend the Twombly Standard to Affirmative Defenses In declining to decide whether Twombly-Iqbal applies to affirmative defenses, some courts have adopted the heightened pleading standards set forth by circuit courts pre-Twombly, reasoning that they do not need to decide whether Twombly-Iqbals applies to affirmative defenses. For example, in granting leave to the defendant to assert three affirmative defenses, the court in Luvata Buffalo Inc, declared that it need not answer the question of whether Iqbals plausibility standard applies to affirmative defenses because the Second Circuit had made clear that affirmative defenses which amount to nothing more than mere conclusions of law and are not warranted by any asserted facts have no efficacy. 73 Similarly,in reasoning the pre-Twombly fair notice standard and Twombly-Iqbal were not materially different from one another, other courts have struck affirmative defenses for failure to state the defense with sufficient factual specificity necessary to meet the fair notice pleading standard.74 Thus,these courts,evenwhenapplyingafairnoticepleadingstandardreachedthesameresultascourts applyingaheightenedpleadingstandard,andhavedeemedcommonplaceavermentsthatare
71 72

Fed. R. Civ. P. 11(b)(3). Leon v. Jacobson, 2010 WL 4810600 at *1 (N.D.Ill.,2010). 73 See Luvata Buffalo Inc. v. Lombard General Ins. Co. of Canada Not Reported in F.Supp.2d, 2010 WL 826583 W.D.N.Y.,2010; Schecter v.Comptroller of City of New York, 79 F.3d 265, 270 (2d Cir. 1996). 74 See Sewell v. Allied Interstate, Inc. Slip Copy, 2011 WL 32209 (E.D.Tenn., 2011). (adopting the Sixth Circuit approach set forth in Lawrence, reasoning that an affirmative defense may be pleaded in general terms and will be held to be sufficient ... as long as it gives plaintiff fair notice of the nature of the offense. Lawrence v. Chabot,182 F.Appx 442, 456 (6th Cir.2006).

CatherineFrizell 20 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. typicallyallegedtobeformulary,conclusory,anduninformativefashiondefectiveonnotice grounds.75 Sometimescourtsdecliningtodecisivelyruleonthisissuehavedeclinedtostrike

boilerplateaffirmativedefensesbecausepostTwomblyIqbalSupremeCourtprecedenthas indicatedthattheaffirmativedefensewouldsufficeunderaheightenedpleadingstandard.For example,inapplyingthefairnoticestandard,onecourtdeclinedtogranttheplaintiffsmotionto strikeabonafideerrordefenseinSewellv.AlliedInterstate,Inc.,asuitbroughtundertheFair DebtCollectionPracticesAct(FDCPA).76There,theplaintiffarguedthattheaffirmativedefense shouldbestrickenbecausethedebtcollectordefendantdidnotexplainthethe procedures [they used to avoid FDCPA violations] and the manner in which [the procedures] were adapted to avoid error, a requirement set forth by the FDCPA.77 Instead, the plaintiffs affirmative defense asserted that the defendants did not act intentionally, and/or if defendants actions were in violation of the FDCPA, their actions were the result of a bona fide error.78 In Jerman v. Carlisle, a case decided after Twombly-Iqbal, the Supreme Court reasoned that the procedures indicated in the FDCPA were procedures that help to avoid clerical or factual errors.79 By relying on this Supreme Court precedent, the court in Sewell determined that the procedures indicated
75

See Dann v. Lincoln Nat.Corp., 2011 WL487207 (E.D.Pa., 2011); United States v. Sensient Colors, Inc., 580 F.Supp.2d 369, 278 (D.N.J. 2008)(holding that the defendants reference to unspecified statutes of repose [was] ambiguous, and fail[ed] to satisfy the notice pleading requirements of Rule 8); Huertas v. United States Dept of Educ., No.08-3959, 2009 WL 2132429, at *3(D.N.J. July 13, 2009 (holding that the defendants reference to unspecified statutes of repose [was] ambiguous, and faile[ed] to satisfy the notice pleading requirements of Rule 8). 76 See Sewell v. Allied Interstate, Inc., Slip Copy, 2011 WL 32209 *8 (E.D. Tenn., 2011). 77Notably, in Sewell, the plaintiffs also challenged defendants contributory negligence defense because the defendants had failed to state any facts in support of this defense as to what agreements their defense was referring to, how the plaintiffs failed to understand and comply with the agreements and how plaintiffs were involved in getting the Defendants to make illegal collection calls that resulted in causing the invasion of their own privacy. [Plaintiffs' Memorandum of Law in Support of their Motion to Strike, Doc. 11, Pg. 6]. Sewell v. Allied Interstate, Inc., Slip Copy, 2011 WL 32209 (E.D.Tenn., 2011). (internal citations omitted) January 05, 2011. 78 Sewell v. Allied Interstate, Inc., Slip Copy, 2011 WL 32209 *8 (E.D. Tenn., 2011). 79 Id.

CatherineFrizell 21 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. in the affirmative defense signified a category that was sufficiently narrow to give plaintiffs fair notice.80Despite the defendants failure to specify what procedures they were referring to, the Sewell court determined that the affirmative defense met the fair notice standard. SinceJermanwasdecided postIqbal,itsuggeststhatthebonafideerroraffirmativedefensesatisfiesTwomblyIqbal analysis.Underthisreasoning,theaffirmativedefenseassertedbydefendantsinSewellwould sufficeunderboththefairnoticeandTwomblyIqbalsincetheSupremeCourthadsetforth sufficientlynarrowdefinitionsforthetermsassertedinthebonafideerroraffirmativedefenses incasesbroughtundertheFDCPA.81 B. The Twombly Standard Applies to Affirmative Defenses The majority of courts that have considered the question have found that Twombly-Iqbal extends to affirmative defenses.82 This section describes the major points upon which the district courts that extend Twombly-Iqbal to affirmative defenses rely. First, it discusses the textual support provided by the rules. Next, it discusses the judicial notions of fairness in decisions to extend the standard. After that, it addresses the use of the Twombly-Iqbal to prevent judicial abuse and boilerplate defense pleadings. Finally, it describes the liberality that judges use in allowing defendants to amend insufficient defensive pleadings.

1. Twombly Applies to Rule 8(a) and Rule 8 (c)

80

See Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 130 S.Ct. 1605 (2010) (holding that mistakes of law do not constitute bona fide errors under the FDCPA). 81 Lower courts finding that this bona fide affirmative defense is plausible under the heightened pleading standard seem to implicitly be defining the term as factual, not conclusory. 82 See also Mid-Continent Cas, Co. v. Active Drywell S., Inc., 2011 WL679850, at *1 (S.D.Fla. Feb. 25, 2011). (affirmative defenses must be pled consistent with Twombly ).

CatherineFrizell 22 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. Since the short and plain statement language of Rule 8(a)(2) and the short and plain terms language of Rule 8(b)(1)(A) are often interpreted as synonymous, applying the same pleading standard to both claims and affirmative defenses is consistent with the rules symmetrical language.83 In order for pleading under the federal rules to truly be symmetric, a plaintiff should be entitled to the same level of notice of the affirmative defense asserted in the case as the defendant receives of the allegations against it.84 The interpretation of the language in the rules is consistent with the fact that many courts have treated a 12(f) motion to strike an affirmative defense under a standard similar to a motion to dismiss it must meet a plausibility standard. Some courts treat 12(f) and 12(b)(6) motions as mirror images, analyzing their differences as purely academic, as the standard is the same.85 Furthermore,somecourtshavenotedthatapplyingtheplausibilitystandardtoaffirmative defenseswouldbeconsistentwiththewordingofForm30andForm11,whichsetforthexamples applicabletoaffirmativedefensesandpleadings.86Form30mandatesthatthedefendant demonstrateashort,simplesentenceassertingtheaffirmativedefenseandthatthedefendant shouldprovidethefactsnecessarytosupportthatdefensewilloftensuffice.87Sincecourtsare

83

Hayne v. Green Ford Sales Inc., No. 09-2202-JWL-GLR, 2009 WL 5171779 *2 (D.Kan. Dec. 22, 2009); Barnes v. AT&T Pension Benefit Plan, 2010 U.S. Dist. LEXIS 62515 (N.D. Cal. June 22, 2010); Cano v. South Fla. Donuts, Inc. No. 0981248-CIV, 2010 WL 326052, at *1 (S.D.Fla. Jan.21, 2010)(holding that affirmative defenses must also comply with the pleading requirements of Rule 8(a) and include facts supporting each affirmative defense); See also Mid-Continent Ca MidContinent Cas. Co. v. Active Drywall S., Inc., F.Supp.2d , Nos. 1020859 CIV, 1020861CIV, 1020862CIV, 2011 WL 679850, at * 1 (S.D.Fla. Feb. 25, 2011) (affirmative defenses must be pled consistent with Twombly ). 84 Joseph A. Seiner, Twombly, Iqbal, and the Affirmative Defense 37 (December 6, 2010), available at http://ssrn.com/abstract=1721062. 85 See Suface Sheilds Inc. v. Ply-Tak Protection System, Inc. 86 As per Rule 84, it is necessary to consider the wording of the Forms, which are intended to indicate the simplicity and brevity of statement which the rules contemplate. Fed. R. Civ. P. 84. 87 See Seiner, supra note 73, available at http://ssrn.com/abstract=1721062.

CatherineFrizell 23 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. commonlyapplyingTwomblyIqballenientlyincaseswherethereisinformationasymmetry,the formsremainguidepostsforlitigantsassertingplausiblepleadings.88 2. What Is Good for the Goose Is Good for the Gander In the name of fairness and equity, courts often apply the same standard to affirmative defenses and pleadings. Because affirmative defenses are pleadings, they are subject to the same requirements as any other pleading, including the complaint.89 Courts adopting this reasoning hold that the standard applied to all pleadings simply means that the pleading can be pleaded in a way that is intelligible, gives fair notice, and is plausibly suggested by the facts. [W]hat is good for the goose is good for the gander90 AfterTwombly,motionstodismissbasedonTwomblyandIqbalhavebecomeroutine,andthe perceptionamongpracticingattorneysandcommentatorsisthatthegrantratehasincreased, particularlyincivilrightscases,employmentdiscrimination,privateenforcementmatters,class actionsandproceedingsbroughtprose.91Thelimitedempiricalanalysisthathasbeenreleased sinceTwomblyhasconfirmedthisnotion.Forexample,atwoyearstudyofpostTwomblyantitrust casesconcludedthatthecasehadasubstantialimpactandhasraisedthebarforplaintiffs. Imposingtheheightenedpleadingstandardonaffirmativedefenses,aswellasclaims,wouldresult

88

See e.g. CompareMark IV Industries Corp. v. Transcore, L.P., 2009 WL 4403187 (DDEL 2009) (denying the motion to dismiss because the complaint's allegations conform with Form 18 of the FRCP in a patent action); with Anthony v. Harmon, 2009 WL 4282027 (ED Cal. Nov. 25, 2009) (stating that Form complaints have been cast into doubt); Doe v. Butte Valley Unified School Dist., 2009 WL 2424608, *8 (E.D. Cal. Aug. 6, 2009) (expressing doubt that the FRCP Form Complaints are still sufficient after Iqbal). Cf.The Cincinnati Ins. Co. v. Tienda La Mexicana, Inc., 2009 WL 4363450 (WDVA 2009) (holding that the allegation that insured negligently caused fire stated a claim for breach of insurance contract). 89 See Woodfield, supra note 41. 90 Racick v. Dominion Law Assocs., 270 F.R.D. 228, 233 (E.D.N.C. 2010). 91 See Arthur R. Miller. From Conley to Twombly to Iqbal: A Double Play on the Rules of Civil Procedure, 60 Duke L.J. 1, 20 (2010).

CatherineFrizell 24 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. inlevelingtheplayingfieldforplaintiffsanddefendantsalike,especiallyconsideringthevarious mechanismsthatblockplaintiffsaccesstocourts.92

3. Discovery Abuse and Boilerplate Pleadings In addition to reliance upon notions of simple fairness, courts that decide to extend Twombly-Iqbal to affirmative defenses frequently do so [b]ecause of the widespread abuse of affirmative defenses and related judicial acquiescence at times in such practices.93 These courts tend to pursue two objectives: the prevention of unnecessary discovery and the streamlining of boilerplate defensive pleadings. Some courts adopt the underlying rationale of Twombly in their decisions to extend Twombly-Iqbal to affirmative defenses. For these courts, Twombly and Iqbal were meant to eliminate the potential high costs of discovery associated with implausible claims, and boilerplate defenses can lead to the same costly litigation as inadequate complaints.94 For these courts, the Twombly-Iqbal analysis is designed to eliminate the potential high costs of discovery associated with meritless claims, and [b]oilerplate affirmative defenses can have the same detrimental effect on the cost of litigation. 95 Related to the approach taken by those judges who apply Twombly-Iqbal because of fairness and equity reasons, these courts take a practical approach to their decisions, using the Twombly-Iqbal
92

See Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517, 549 (2010) (describing that there have been tremendous changes in federal pretrial practice over the last thirty years. These changes include the development of heightened pleading standards, the increased use of summary judgment, the development of Daubert hearings, more settlements, the greater use of managerial judging). See also Coleman, supra note 3 at 262 (discussing how the trial has vanished, litigation has exploded, judges have become managers, and notice pleading has died). See Melanie A. Goff & Richard A. Bales, Plausible Defense: Applying Twombly and Iqbal to Affirmative Defenses, 34 Am. J. Trial Advoc. (forthcoming 2011), available at http://ssrn.com/abstract_ id=1737805; see also Seiner, supra note 73. 93 U.S. v. Quadrini, 2007 WL 4303213 (E.D.Mich.,2007.December 06, 2007* 6 94 Nixson v. The Health Alliance, 2010 WL 5230867 *2 (S.D. Ohio, Dec. 16., 2010). 95 The burdens and cost of discovery have been frequently documented. Plaintiffs attorneys routinely burden defendants with costly discovery requests and engage in open-ended fishing expeditions in the hope of coercing a quick settlement. John H. Beisner, Special Symposium Issue: 2010 Civil Litigation Review Conference Article: Discovering a Better Way: The Need for Effective Civil Litigation Reform, 60 Duke L.J. 547 (2010).

CatherineFrizell 25 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. standard as a tool with which they might clear their dockets or improve the quality of the pleadings before them.96 In so reasoning, courts hold that boilerplate affirmative defenses are plainly deficient and should be stricken.97

4. Amending Pleadings Courtsapplyingthefairnoticestandardtoaffirmativedefenses,andsubsequentlystriking thosethatarebarebonedoftengrantthemotiontostrikethedefensewithoutprejudicetothe defendantsrighttoamendtheanswertoidentifywhichclaimsitassertsarebarredbythe statuteoflimitations.Furthermore,Rule15(a)(2)instructsthatleavetoamendbefreelygranted whenjusticesorequires.98 Under a liberal notice pleading standard, the threat of forever losing their affirmative defense because they failed to assert it in their responsive pleading, combined withtheshorttimeframeforfilinga response,stronglyencouragesdefendantstoincludeallpossibledefensesintheanswer,even whenthedefendanthasonlylimitedfactualsupport.Courts should liberally apply Rule 15 so that defendants can raise affirmative defenses later in litigation.Adopting this practice will ultimately lead to defendants asserting less boilerplate defenses in their answers, and less time and cost wasted by the plaintiff in their investigation of the affirmative defenses asserted by the defendant. Of course, courts should apply Twombly-Iqbal to these affirmative defenses and only accept the affirmative defenses if
96

See, Safeco, supra note 45, at 1. Boilerplate defenses clutter the docket and, further, create unnecessary work. Opposing counsel generally must respond to such defenses with interrogatories or other discovery aimed at ascertaining which defenses are truly at issue and which are merely asserted without factual basis but in an abundance of caution. The court is aware of only a limited class of defenses that are waived if not immediately asserted. Rule 15 allows for appropriate amendments and counsel should therefore feel no need in this court to window-dress pleadings early for fear of losing defenses later). 97 Tracy v. NVR, Inc., 2009 WL 3153150 (W.D.N.Y. 2009). 98 See Dann, supra note 64 at 5.

CatherineFrizell 26 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. they do not cause an undue burden on the plaintiffs, or result in an unfair surprise to the other party.99 Furthermore, somecourtsentertainaffirmativedefenseswhentheyareraisedinamotionfor summaryjudgmentbyconstruingthemotionasonetoamendthedefendantsanswer.100 III. COURTS SHOULD EXTEND THE TWOMBLY STANDARD TO AFFIRMATIVE DEFENSES This part of the paper argues that the application of the Twombly-Iqbal standard to affirmative defenses is consistent with the purpose of the Federal Rules, and Twombly-Iqbal is consistent with the principles of fairness and equity. First, it demonstrates how the language and structure of the Federal Rules support an extension. Next, it explains how an extension of the standard will decrease the costs and time associated with litigation. Finally, this part argues that simple fairness warrants an extension of Twombly-Iqbal to affirmative defenses.

A. The Rules Follow The Federal Rules structure and language reflects that they require the same treatment of pleadings by claimants and defendants. Rule 8, which sets forth the general rules for pleadings, and does not differentiate between claims for relief and affirmative defenses. Arguments that Rule 8(c) for affirmative defenses does not contain the same language as Rule 8(a)(2), requiring a short and plain statement of the claim, and thus, does not necessitate a heightened pleading standard fail to consider other sections of the Rules.

99

100100 Monahan

Francisco v. Verizon South, Inc., 2010 WL 2990159, at *9 (E.D. Va., 2010). v. New York City Department of Corrections, 214 F.3d 275, 283 (2nd Cir. 2000).

CatherineFrizell 27 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. The Hayne court adopted a thoughtful textual analysis of the Federal Rules that reflects this analysis. There, the court reasoned that it makes no sense to find that a heightened pleading standard applies to claims, but not affirmative defenses. At the very least, the court reasoned, Rule 8 is consistent in at least inferring that the pleading requirements for affirmative defenses are essentially the same as for claims for relief. The symmetrical application of Twombly-Iqbal to affirmative defenses and not simply allowing defendants to add the affirmative defense to the case upon some conjecture that it may somehow apply serves a valid purpose. Both Rule (b)(1), which governs Defenses; In General, and Rule 8(a)(2) call for a short and plain statement of the claim. Additionally, Rule 8(c)(1) provides a helpful laundry list of commonly asserted affirmative defenses to emphasize that affirmative defenses must indeed be plausible to be preserved. Moreover, in Hayne v. Green Ford Sales, the court considered the flexibility of Rule 15 motions to amend pleadings softens any painful blow of heightened pleading standards.101 Adopting a lenient approach to applying Twombly-Iqbal, the Hayne court assumes that plaintiffs need only state minimal facts in order to show plausibility. A standard, the Hayne court presumes, most defendants can meet after conducting the abbreviated factual investigation necessary before raising affirmative defenses in any event. Thus, both the structure and the language of the Federal Rules necessitate that the heightened pleading standard be applied evenly to both claims and affirmative defenses. The structure of the Federal Rules implies that pleading standards for both claims and affirmative defenses should be plausible. Since change in one aspect of the rules and the litigation process inevitably impacts every other aspect of the process, applying the same standards to all parties will
101

Hayne v. Green Ford Sales Inc., No. 09-2202-JWL-GLR, 2009 WL 5171779 *2 (D.Kan. Dec. 22, 2009).

CatherineFrizell 28 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. avoid litigation as to whether the original plaintiff is considered a defendant if the opposing party files a counter-claim. 102 Consequently, when a large number of boilerplate affirmative defenses are alleged, the Court must address what are often unnecessary motions for summary judgment and extend pretrial conferences in order to narrow the issues.103 Avoiding this problem by requiring all parties to meet the same standard preserves court resources and is consistent with the goal of making litigation as speedy and efficient as possible.104

B. Practical Considerations and the 12 (f) Motion to Strike Applyingtheplausibilitystandardtoaffirmativedefenseshaspracticalconsequencesaswell. Somecircuitsanddistrictcourtsapplyaheightenedstandardtoaffirmativedefensesinaneffortto determinewhethertheaffirmativedefensesareplausible.Forexample,somecourtshaveapplieda threeparttestinordertodeterminewhetheranaffirmativedefenseshouldbestricken.In applyingthetest,thecourtconsiderswhether(1)themattermustbepleadedasanaffirmative defense, (2) the matter must be adequately pleaded under the requirements of Federal Rules of Civil Procedure 8 and 9; and (3) whether the matter can withstand a Rule 12 (b) 6 challenge.105 Thus,for practicalreasons,itisnecessarytoextendTwomblyIqbaltoaffirmativedefenses,because,asone courtnoted,otherwiseacourtcouldnotmakeaRule12(f)determinationonwhetheran affirmativedefenseisadequatelypleadedunderRules8and/or9andcouldnotdetermine
102 103

Ahle v. Veracity Research Co., 738 F.Supp.2d 896 (D.Minn.,2010). Id. 104 Melanie A. Goff and Richard A. Bales, A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses 34 Am.J. of Trial Advoc. 3 (2011), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1737805. 105 United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213, at *3 (E.D. Mich. Dec. 6, 2007) (holding that Twombly abrogated the Conley standard in 12(f) motions to strike, and striking eight affirmative defenses that the defendant pled in single sentence because the affirmative defenses did not plead sufficient facts to satisfy the requirements of Rule 8).

CatherineFrizell 29 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. whethertheaffirmativedefensewouldwithstanda12(b)6challenge.106Even if the new plausibility standard includes, and is applied uniformly to, all types of defensive pleadings, plaintiffs will still bear a disparate pleading burden. As a practical matter, plaintiffs will bear a heavier burden because defendants only need to move to dismiss following the complaint rather than interpose an answer.107 Additionalcostsincurredbythedefendantwheninvestigatingthebasicfactsaboutitsdefense shouldbeminimal. 108Assertingplausibleaffirmativedefensesallowspartiestotailortheir discovery,andlimitslitigationcosts,whichultimatelyleadstomoreequitableresults.Some affirmativedefensesareclearfromthefaceofthecomplaint,likeastatuteoflimitationsdefense orthebonafideerrordefenseraisedundertheFDCPA.However,otheraffirmativedefenses shouldallegeasufficientfactualbasisorbasesforhisorheraffirmativedefensetoshowthatthe defenseisplausiblyviableonitsfaceorsufficientfactualmatterfromwhichacourtcaninfer potentialviability.109InAspexEyewearInc.,theSouthernDistrictofNewYorkappraisedthe sufficiencyofthedefendantsaffirmativedefensesinlightoftheplaintiffsmotiontostrike.There, thecourtheldthattherequirementofshowingthatthepleadingappliesequallytoplaintiffsand defendants,andthatadversepartiesshouldbeprovidedenoughinformationaboutanaffirmative defensetoallowthemtotailortheirdiscovery.110 Supplying plaintiffs with sufficient information in

106 107

Id at 4. See Kevin M. Clermont, Three Myths About Twombly-Iqbal, 45 Wake Forest L. Rev. 1337 (2010). 108 See Rebecca Love Kourlis, et. al., Reinvigorating Pleadings, 87 Denv. U.L. Rev., 245, 279 (2010) (arguing that pleadings that require the recitation of facts directly bearing on the elements of a claim or affirmative defense will better address current problems of pervasive cost and delay by commencing the issue-narrowing process at the start of the case). 109 Aspex Eyewear, Inc. v. Clariti Eyewear, Inc. 531 F.Supp.2d 620, 623 (S.D.N.Y. 2008). 110 Burget v. Capital West Securities, Inc. No. CIV-09-1015-M, 2009 WL 4807619 (W.D. Okla. Dec.8, 2009); see also Manuel John Dominguez, The Plausibility Standard as a Double-Edged Sword, 84-JUN Fla. B.J. 77, 79 (2010).

CatherineFrizell 30 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. regards to their affirmative defense would cut discovery costs, and allow for a less costly streamlined process for both plaintiffs and defendants.

C. Reestablishing a Balance in the Parties Pleading Obligations Applying the heightened pleading standard to affirmative defenses and liberally allowing for amendments per Rule 15 during later stages of litigation is consistent with the goals of the Federal Rules, and notions of equity and fairness in pleading. The argument in favor of a hybrid approach adopted by some courts requiresadefendanttoallegeafactualbasisonlyforthoseaffirmative defenseslistedinRule8(c)(1).111However,itbestservesfairnessandequityinpleadingfora commonpleadingstandardtoapply.Thoughitisunclearwhethertheaffirmativedefenseslisted underRule8(c)(1)willalwaysprovidenoticetoplaintiffsduringthecourseoflitigation. Inordertotrulyprovidetheplaintiffwithnotice,defendantsshouldprovidefactual support,andnotmerelyaboilerplateaffirmativedefensewhenassertinganyaffirmative defense,listedin8(c),orotherwiseintheiranswer.112Theriskthatdefendantswilluse thisexceptiontoassertaffirmativedefenseswithnoplausibilitythattheyultimatelyignore whenlitigationcomeshighlightsthesignificancethatanaffirmativecourtrulingthatcould haveonestablishingacommonTwomblyIqbalanalysisinregardstoRule8(c).113

111

Kaufmann v. Prudential Insurance Co. of America, No. 09-10239-RGS, 2009 WL 2449872 (D.Mass. Aug. 6, 2009). 112 Fed. R. Civ. P. 8 (c). 113 Allowing courts to test the waters in order to establish the standard that should be applied to affirmative defenses would also calm concerns that the rules are encouraging strategic use by making it simpler for parties to file 12 (b)(6) motions to strike. See Coleman, supra note 3, at 264 (arguing that even if some degree of tactical behavior is unavoidable, the procedural rules should not reward behavior not intended to get to the substance of the case).

CatherineFrizell J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. Applying the heightened pleading standard to affirmative defenses in cases in which the defendants have much easier access to information than plaintiffs is particularly crucial. For

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example, establishing discriminatory intent for plaintiffs in sexual harassment cases can be quite difficult, particularly without access to discovery and the depositions of those allegedly involved in the unlawful acts.114 Defendants, however, have a much easier time satisfying the plausibility standard, as they may not always have such easy access to required information. Boilerplate affirmative defenses can hinder plaintiffs in other legal contexts as well. For instance, in the context of claims brought against the government under the Federal Torts Claim Act (FTCA), a boilerplate defense asserted by the defendant could refer to multiple methods of exhaustion under the FTCA. Often, in cases where defendants assert boilerplate defenses, plaintiffs incur significant time and money, which courts, acknowledging plaintiffs discovery concerns115 have ultimately found to constitute unfair prejudice.116 Other courts have reasoned that consistency and fairness are best served by applying Twombly-Iqbal to affirmative defenses, and plaintiffs are entitled to receive proper notice of defenses in advance of the discovery process and trial. Indeed, the application of the TwomblyIqbal analysis to defenses will also promote litigation efficiency and will discourage defendants asserting boilerplate affirmative defenses that are based upon nothing more than some conjecture that [they] may somehow apply.117

114 115

See Seiner, supra note 73. See Leon, supra note 61 (reasoning that courts adopting an analysis that it is to everyones benefit to have defendants plead an affirmative defense early because it will avoid discovery disputes that develop as a defendant seeks discovery relate to affirmative defenses it had not stated in its answer are short-sighted in failing to acknowledge plaintiffs discovery concerns). 116 See Monahan v. City of New York City Dept. of Corrections, 214 F.3d 275, 282 (June 8, 2000). 117 Bradshaw v. Hilco Receivables, LLC, No. RDB-10-113, 2010 WL 2998626, at *3 (D. Md. July 27, 2010).

CatherineFrizell 32 J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE. The application of the plausibility standard to affirmative defenses will allow defense attorneys to spend more time researching and asserting facts supporting their affirmative defenses, and will minimize the amount of time the plaintiffs attorney will spend investigating conclusory or vague affirmative defenses.118 Considering 12(f) motions to strike an insufficient defense need to be filed 21 days after the affirmative defenses are asserted, it is particularly important for plaintiffs to understand the meaning of the affirmative defense asserted by the defendant.119 Applying Twombly-Iqbal to affirmative defenses will prompt the exchange of minimal information when asserting defenses and serve to clarify a partys position rather than prompt new areas of dispute120

CONCLUSION It is not surprising that there has been disagreement as to Twombly-Iqbals application as applied to affirmative defenses, considering there has always been variations of pleading standards among courts as to what analysis is appropriate to apply to pleadings. Applying Twombly-Iqbal to affirmative defenses is consistent with the text and intentions of the Federal Rules. Its promotion of judicial efficiency, together with the notions of fairness, policies and procedure promote Twomblys policy concerns. Furthermore, applying parallel pleading standards to pleadings and affirmative defenses would further the goal of striking a reasonable balance among competing fairness and efficiency concerns, both in the civil litigation system as a whole and the civil rulemaking process. 121

118

See e.g. Lawson v. Ellison Surface Technologies, Inc., 2010 WL 935361, *12 (E.D. Ky. 2010) (Allegation that plaintiff is disabled, without alleging facts that show he satisfies this condition, is conclusory). ButseeDoe v. Astrue, 2009 WL 2566720 (N.D. Cal. Aug. 18, 2009) (alleging that plaintiff was otherwise qualified for benefits was not conclusory). 119 Fed. R.Civ. P. 12 (f). 120 Francisco, supra note 81 at 4. 121 See Coleman, supra note 3 at 297.

CatherineFrizell J.D.Candidate2012 BrooklynLawSchool DRAFT.PLEASEDONOTCITE.

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