Monday, May 16, 2011

Do Twombly and Iqbal Apply to Affirmative Defenses?

This blog visited this issue back on July 21, 2010. Recently, Judge Cacheris of the Eastern District of Virginia issued a thoughtful opinion on this issue, diverging from the unanimous view of all other reported district court decisions within the Fourth Circuit, holding that Twombly and Iqbal do not apply to affirmative defenses. In Lopez v. Asmar’s Mediterranean Food, Inc., 2011 U.S. Dist. LEXIS 2265 (E.D. Va. Jan. 10, 2011) Judge Cacheris, predicated his decision on a reading of the Civil Rule at issue. The Judge notes that Twombly and Iqbal are predicated on the Supreme Court’s construction of Civil Rule 8(a)(2); whereas the rule governing affirmative defenses is contained in Civil Rule (8)(b)(1)(A), the language of which is significantly different than the language of 8(a)(2). Civil Rule 8(a)(2) requires that “claims for relief,” including complaints, contain

a short and plain statement of the claim showing that the pleader is entitled to relief.

(emphasis added). In contrast, Civil Rule 8(b)(1)(A) governing civil defenses requires that a responding party

state in short but plain terms its defenses to each claim asserted against it.

As Judge Cacheris notes, Civil Rule 8(b)(1)(A) omits the language requiring a “showing that the pleader is entitled to relief.” The absence of that language led the court in Lopez to conclude that Twombly and Iqbal’s reasoning does not and ought not apply to affirmative defenses. The Court notes that, of course, the plaintiff can explore whatever factual detail supports the affirmative defenses by propounding interrogatories, for example.

In a footnote, the court notes that the Lopez opinion will be the decidedly minority view amongst the district judges in the Fourth Circuit who have addressed this issue. See e.g., Racic v. Dominion Law Assocs., --- F.R.D. ---, 2010 WL 3928702 (E.D.N.C. Oct. 6, 2010); Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 WL 2990159, 2010 U.S. Dist. LEXIS 77083, at *7-8 (E.D. Va. July 29, 2010)(collecting cases); Bradshaw v. Hilco Receivables, LLC, 725 F. Supp. 2d 532, at *3 (D. Md. July 27, 2010); Palmer v. Oakland Farms, Inc., No. 5:10cv00029, 2010 WL 2605179, 2010 U.S. Dist. LEXIS 63265, at *5 (W.D. Va. June 24, 2010). In a follow-on footnote, Judge Cacheris notes that a number of other district judges, outside of the Fourth Circuit, have reached the same conclusion that he does. See e.g., Ameristar Fence Prods., Inc. v. Phoenix Fence Co., No. CV-10-299, 2010 WL 2803907, at *1 (D. Ariz. July 15, 2010); McLemore v. Regions Bank, No. 3:08cv0021, 2010 WL 1010092, at *13 (M.D. Tenn. Mar. 18, 2010); Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870, 2010 WL 865380, 2010 U.S. Dist. LEXIS 29377, at *2 (D. Colo. Mar. 8, 2010); Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 WL 4981730, 2009 U.S. Dist. LEXIS 116358, at *4 (D.V.I. Dec. 8, 2009); Romantine v. CH2M Hill Eng'rs, Inc., No. 09-973, 2009 WL 3417469, 2009 U.S. Dist. LEXIS 98699, at *1 (W.D. Pa. Oct. 23, 2009); First Nat'l Ins. Co. of Am. v. Camps Servs., Ltd., No. 08-cv-12805, 2009 WL 22861, 2009 U.S. Dist. LEXIS 149, at *2 (E.D. Mich. Jan. 5, 2009).

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