Wednesday, July 21, 2010

Courts Split as to Whether to Apply Twombly and Iqbal to Affirmative Defenses

In the wake of the Supreme Court’s decisions in Twombly and Iqbal, federal courts around the country have addressed whether this newly articulated pleading standard applies to affirmative defenses, with varying results: 

See Hayne v. Green Ford Sales, Inc., 2009 U.S. Dist. LEXIS 119886 *6-7 (D. Kan. Dec. 22, 2009) (“A few courts have rejected the heightened pleading standard for affirmative defenses.  The majority of courts addressing the issue, however, have applied the heightened pleading standard announced in Twombly, and further clarified in Iqbal, to affirmative defenses.”) (internal citations and footnotes omitted).  See also, e.g., Barnes v. AT&T Pension Benefit Plan, 2010 U.S. Dist. LEXIS 62515 (N.D. Cal. June 22, 2010) (“The court can see no reason why the same principles applied to pleading claims should not apply to the pleading of affirmative defenses which are also governed by Rule 8.”); Hcri Trs Acquirer, LLC v. Iwer, 2010 U.S. Dist. LEXIS 41552 (N.D. Ohio Apr. 28, 2010) (“[T]he pleading requirements for affirmative defenses are the same as for claims of relief.”); Cosmetic Warriors Ltd. v. Lush Boutique, L.L.C., 2010 U.S. Dist. LEXIS 16392 *4 (E.D. La. Feb. 1, 2010) (“a defendant must plead an affirmative defense with enough specificity or factual particularity to give the plaintiff fair notice of the defense that is being advanced”); OSF Healthcare Syst. v. Banno, 2010 U.S. Dist. LEXIS 7584 *3 (C.D. Ill. Jan. 5, 2010) (citing Twombly and Iqbal, the court concluded that “the affirmative defense, as pled, must offer enough facts to show the defense is plausible on its face”); CTF Dev., Inc. v. Penta Hospitality, LLC, 2009 U.S. Dist. LEXIS 99538, *7-8 (N.D. Cal. Oct. 26, 2009) ("Under the Iqbal standard, the burden is on the defendant to proffer sufficient facts and law to support an affirmative defense"); Fogel v. Linnemann (In re Mission Bay Ski & Bike, Inc.), 2009 Bankr. LEXIS 2495 at *15-16 (Bankr. N.D. Ill. Sep. 9, 2009) (“Affirmative defenses are pleadings and so are subject to all pleading requirements under the Federal Rules…. That means affirmative defenses must meet the notice-pleading standards of Rule 8(a) as the Supreme Court recently interpreted them in Bell Atlantic Corp. v. Twombly… and Ashcroft v. Iqbal.”); Sales Board v. Pfizer, 2009 U.S. Dist. LEXIS 69714 at *19-20 (D. Minn. Aug. 10, 2009) (holding that Iqbal applies to affirmative defenses and stating that affirmative defenses must be based on factual allegations that give rise to the relief requested); Kaufmann v. Prudential Ins. Co. of Am., 2009 U.S. Dist. LEXIS 68800 at *2 (D. Mass. Aug. 6, 2009) (holding that “the court is inclined to think that a defendant has the same Rule 8 obligations with respect to notice pleading as does a plaintiff”); Shinew v. Wszola, 2009 U.S. Dist. LEXIS 33226 *10 (E.D. Mich. Apr. 21, 2009) (in striking affirmative defenses, the court held that the “proposed amended pleading offered by Defendants in this case is the very essence of boilerplate labels and conclusions which the court in Twombly found insufficient. I conclude that the Supreme Court has established a general standard of pleadings matters upon which the pleader assumes the burden of proof.”); Gibson v. Officemax, Inc., 2009 U.S. Dist. LEXIS 127111 (W.D. Okla. Jan. 30, 2009) (unpublished) (“[T]his Court holds that affirmative defenses other than the failure to mitigate damages are subject to the pleading requirements of Rule 8, F.R.Civ.P. and Bell Atlantic Corp[.] v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)… Thus, unless the factual basis for an affirmative defense is clear from the face of the complaint, e.g., where the claim asserted is clearly barred by the applicable statute of limitations, in which case the mere statement that the claim is barred by that statute is sufficient, a defendant must allege a sufficient factual basis or bases for his or its affirmative defense to show that the defense is plausibly viable on its face or sufficient factual matter from which a court can infer potential viability.”); Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F.Supp. 2d 620, 623 (S.D.N.Y. 2008) (the “Second Circuit has … held that affirmative defenses which amount to nothing more than mere conclusions of law and are not warranted by any asserted facts have no efficacy”); Greenheck Fan Corp. v. Loren Cook Co., 2008 U.S. Dist. LEXIS 75147 (W.D. Wis. 2008) (extending Twombly to affirmative defenses); Safeco Ins. Co. of Am. v. O'Hara Corp., 2008 U.S. Dist. LEXIS 48399 at *1 (E.D. Mich. June 25, 2008) (Twombly standards apply to affirmative defenses); Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc'ns, Inc., 2008 U.S. Dist. LEXIS 83135 (W.D. Tex. 2008) (extending Twombly to affirmative defenses); T-Mobile USA, Inc. v. Wireless Exclusive USA, LLC, 2008 U.S. Dist. LEXIS 50165 *5 (N.D. Tex. 2008) (“An affirmative defense is subject to the same pleading requirements as is the complaint” and thus “formulaic recitation of the elements of [the affirmative defense] will not do.”); Holtzman v. B/E Aerospace, Inc., 2008 U.S. Dist. LEXIS 42630 *6 (S.D. Fla. May 28, 2008) (concluding that the “same logic [of Twombly] holds true for pleading affirmative defenses – without alleging facts as part of the affirmative defenses, Plaintiff cannot prepare adequately to respond to those defenses”); Home Mgmt. Solutions, Inc. v. Prescient, Inc., 2007 U.S. Dist. LEXIS 61608 (S.D. Fla. 2007) (extending Twombly to affirmative defenses); United States v. Quadrini, 2007 U.S. Dist. LEXIS 89722, at *4 (E.D. Mich. Dec. 6, 2007) (holding that Twombly’s plausibility standard applies to affirmative defenses).

But see Holdbrook v. Saia Motor Freight Line, LLC, 2010 U.S. Dist. LEXIS 29377 (D. Colo. Mar. 8, 2010) (holding that Twombly and Iqbal are no the standard for affirmative defenses); Charleswell v. Chase Manhattan Bank, N.A., 2009 U.S. Dist. LEXIS 116358 (D. V.I. Dec. 8, 2009) (“This Court concludes that the pleading standards articulated in Twombly and Iqbal do not extend to affirmative defenses. Twombly interpreted Rule 8(a)(2), which states that a pleading must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).  Rule 8(c)(1), which provides for affirmative defenses, states only that “a party must affirmatively state any avoidance or affirmative defense.” Fed. R. Civ. P. 8(c)(1). There is no requirement under Rule 8(c) that a defendant “show” any facts at all. Thus, the Court rejects plaintiffs' arguments on this issue.”); First Nat'l Ins. Co. of Am. v. Camps Servs., Ltd., 2009 U.S. Dist. LEXIS 149, at *4-5 (E.D. Mich. 2009) (holding that Twombly is not the standard for affirmative defenses); First Nat’l Ins. Co. of Am. v. Professional Pool Techs, LLC, 2009 U.S. Dist. LEXIS 149, at *5 (E.D. Mich. 2009) (holding that “Twombly’s analysis of the ‘short and plain statement’ requirement of Rule 8(a) is inapplicable to [motions to strike affirmative defenses]”); Romantine v. CH2M Hill Eng'rs, Inc., 2009 U.S. Dist. LEXIS 98699, *1 (W.D. Pa. Oct. 23, 2009) (declining to apply Twombly to either affirmative or negative defenses); Am. Resources. Ins. Co. v. Evoleno Co., LLC, 2007 U.S. Dist. LEXIS 55181 at n. 7 (S.D. Ala. 2007) (holding that Twombly is not the standard for affirmative defenses); Westbrook v. Paragon Sys., Inc., 2007 U.S. Dist. LEXIS 88490, at *1-*3 (S.D. Ala. Nov. 29, 2007) (refusing to apply Twombly to a motion to strike affirmative defenses by distinguishing Rule 8(c) from Rule 8(a); holding that Twombly’s plausibility standard does not apply to affirmative defenses).

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