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The plausibility standard as a double-edged sword: the application of Twombly and Iqbal to affirmative defenses.

The U.S. Supreme Court's recent reinterpretation of the federal notice pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), has been both consequential and controversial. For half a century prior to Twombly, the liberal "notice pleading" standard in Conley v. Gibson, 355 U.S. 41 (1957), governed pleading under Fed. R. of Civ. P. 8. Twombly's abrupt "retirement" of the Conley standard in favor of a more fact-based "plausibility" standard (1) and Iqbal's affirmation and clarification of Twombly have significantly altered the pleading process. While courts, practitioners, and commentators have debated and documented Twombly's effect on pleading claims for relief, Twombly's application to affirmative defenses has not been widely discussed.

Before Twombly, federal courts were unified in holding that Conley's notice pleading standard applied to both claims and affirmative defenses. Since Twombly, district courts have had to decide whether Twombly's plausibility standard similarly applies to all pleadings. The federal appellate courts have yet to address Twombly's application to affirmative defenses. The vast majority of district courts that have considered the issue, including district courts in Florida, (2) hold that Twombly's plausibility standard applies to affirmative defenses (the "applying courts"). (3) In contrast, a handful of courts have concluded that claims and defenses have distinct pleading standards and, thus, have refused to extend Twombly to affirmative defenses (the "refusing courts"). One court adopted what can be dubbed a "hybrid" standard, holding that Twombly applies only to affirmative defenses not delineated in Rule 8(c). To elucidate the reasons for these different approaches, this article briefly reviews the evolution of federal notice pleading from Conley to Iqbal and the pre-Twombly standard for pleading affirmative defenses. The article then discusses the three approaches thus far adopted by the district courts.

Evolution of the Federal Pleading Standard From Conley to Iqbal

Fed. R. of Civ. P. 8 governs pleading in federal courts. Rule 8(a)(2) provides that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief[.]" (4) In Conley, the Supreme Court defined the level of detail required under Rule 8(a)(2), which became known as the "notice pleading" standard. (5) The Court stated that a pleading need only include "a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." (6) The Court stressed that a complaint does not have to include detailed factual allegations to provide fair notice, famously explaining that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his [or her] claim which would entitle him [or her] to relief." (7) By permitting a complaint that could conceivably support a claim to proceed to discovery, Conley rejected a factually detailed pleading model.

In Twombly, however, a class action alleging violations of [section]1 of the Sherman Act, (8) the Court departed from the notice pleading standard, instead holding that a plaintiff must plead factual allegations that show a "plausible entitlement to relief." (9) In its seven to two decision, (10) the Court opined that the "no set of facts" passage from Conley could not be reconciled with the Court's newly delineated Rule 8(a)(2) plausibility requirement and resolved that the Conley language had "earned its retirement." (11) Under Twombly, a complaint must now include factual allegations that raise the right to relief above the speculative level, and merely pleading "labels and conclusions" or a "formulaic recitation of the elements of a cause of action" is insufficient. (12) Unlike the modest factual requirements of the notice pleading standard, the plausibility standard requires that a pleading include specific factual allegations that are more than merely consistent with an entitlement to relief. (13)

Due in part to Twombly's focus on antitrust conspiracies and the discovery costs of complex litigation, widespread uncertainty existed regarding the extent of Twombly's reach. (14) Consequently, in Iqbal, a Bivens (15) suit alleging civil rights violations by government officials against a post-September 11th Muslim detainee, the Court took the opportunity to flesh out the details of the plausibility standard. (16) In its five to four decision, (17) the Court held that the plausibility standard governs all pleadings in federal civil actions, without exception. (18) Additionally, the Court set forth a "two-pronged" approach for assessing the sufficiency of a complaint: First, a court must parse the allegations to determine which are "factual allegations" and which are "legal conclusions"; second, the court must ascertain whether the factual allegations "plausibly give rise to an entitlement to relief." (19) Iqbal, thus, reinforced and formalized Twombly's plausibility pleading requirement and, in so doing, conclusively laid to rest Conley's notice pleading standard.

Application of the Notice Pleading Standard to Affirmative Defenses

Although Conley dealt only with the standard for pleading claims under Rule 8(a)(2), over time this "notice pleading" standard also became the standard for pleading affirmative defenses. Federal circuit courts reached this conclusion by adhering to a general application of the pleading standard--i.e., all pleadings are subject to the same requirements under Rule 8. (20) Hence, 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 as well. (21)

The effect of the notice pleading standard on affirmative defenses is most apparent in the context of motions to strike under Fed. R. of Civ. P. 12(f). Rule 12(f) states that "[a] court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (22) Due to Conley's minimal requirements for pleading factual detail before Twombly, courts consistently upheld the sufficiency of bare-bones affirmative defenses in the face of Rule 12(f) motions to strike. (23) As Wright and Miller explained preTwombly, "an affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the nature of the defense." (24) In practice, the application of the liberal notice pleading standard to affirmative defenses largely neutralized Rule 12(f) motions to strike. Due to the negligible threat posed by a motion to strike, the pleading of boilerplate affirmative defenses became commonplace and accepted, with litigants often pleading little more than the name of a defense--e.g., "waiver" or "estoppel." (25)

Application of the Plausibility Standard to Affirmative Defenses

Given Twombly's plausibility requirement, along with its admonition against pleading "label and conclusions," it appears that boilerplate affirmative defenses would be insufficient under the Twombly pleading standard. (26) Recognizing this reality, litigants are now filing 12(f) motions to strike affirmative defenses with increasing frequency, arguing that Twombly's reinterpretation of the pleading standard has invigorated Rule 12(f). Like Conley, however, both Twombly and Iqbal focused on the standard for pleading claims under Rule 8(a)(2) rather than pleading affirmative defenses. Consequently, courts must now decide whether Twombly's plausibility standard should, like Conley, apply generally to all pleadings. The vast majority of courts addressing this question have held that Twombly's plausibility standard applies to affirmative defenses. Although these courts have offered varied explanations for Twombly's applicability, their holdings can be separated into three distinct rationales: 1) Twombly's interpretation of Rule 8(a) applies to all pleadings; 2) Twombly's interpretation of Rule 8(a) applies to defenses under Rule 8(b); or 3) the practical purpose behind Twombly--to prevent unnecessary discovery costs--applies to affirmative defenses.

* Twombly's Interpretation of Rule 8(a) Applies to All Pleadings--The reasoning most frequently advanced by applying courts is that Twombly's interpretation of Rule 8(a) applies to all pleadings, including affirmative defenses. (27) In Shinew v. Wszola, No. 08-14256, 2009 WL 1076279 (E.D. Mich. Apr. 21, 2009), for example, the defendant asserted seven affirmative defenses simply by listing the names of the defenses. The court determined that a general pleading standard applies to both claims and defenses, citing as support Wright and Miller's preTwombly pronouncement that "[t]he general rules of pleading ... applicable to the statement of a claim also govern the statement of affirmative defenses under Federal Rule 8(c)." (28) The court acknowledged that although Conley had previously governed the pleading of affirmative defenses, the Supreme Court has rejected the Conley notice standard in favor of the Twombly plausibility test. Accordingly, the court in Shinew held that Twombly's interpretation of Rule 8(a) replaced Conley as the general standard of pleading for claims and affirmative defenses. Applying the plausibility standard, the court held that defendant's affirmative defenses were insufficiently pleaded under Twombly. (29)

In United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213 (E.D. Mich. Dec. 6, 2007), the court took the Shinew analysis one step further, holding that since Twombly abrogated the Conley pleading standard, courts can no longer employ Conley on a Rule 12(f) motion to strike affirmative defenses, but must instead apply Twombly. The defendant in Quadrini pleaded eight affirmative defenses in one sentence simply by naming each defense in succession. Assessing plaintiff's motion to strike, the court explained that an affirmative defense should be stricken under Rule 12(f) if it does not meet the pleading standards of Rule 8. The court observed that the Twombly plausibility test superseded the Conley "no set of facts" language as the Rule 8(a) pleading standard. Consequently, the court concluded that Twombly must apply to both plaintiffs and defendants; otherwise, a court would have no means of assessing a 12(f) motion to strike based on the Rule 8 standard. (30) Applying Twombly, the court held that defendant's affirmative defenses did not

plead sufficient facts to satisfy the requirements of Rule 8. (31)

* Twombly's Interpretation of Rule 8(a) Applies to Defenses Under Rule 8(b)--While the majority of applying courts have held, like in Shinew and Quadrini, that Rule 8(a) applies to all pleadings--including affirmative defenses--other applying courts have alternatively reasoned that Twombly's interpretation of Rule 8(a) applies to defenses under Rule 8(b). Similar to the requirement under Rule 8(a)(2) that a claim for relief contain "a short and plain statement of the claim[,]" Rule 8(b)(1)(A), which governs defenses in general, provides that "[i]n responding to a pleading, a party must ... state in short and plain terms its defenses to each claim asserted against it[.]" (32) Assessing the plaintiff's Rule 12(f) motion to strike defendant's boilerplate affirmative defenses, the court in Hayne v. Green Ford Sales, Inc., No. 09-2202-JWL-GLR, 2009 WL 5171779 (D. Kan. Dec. 22, 2009), held that affirmative defenses must allege factual allegations sufficient to establish plausibility under Rule 8(b)(1)(A). The court opined that Rule 8 infers a general pleading standard, which applies equally to claims and defenses. The court reasoned that due to the parallel terminology of the "short and plain statement" language of Rule 8(a)(2) and the "short and plain terms" language of Rule 8(b)(1)(A), these rules establish the same pleading standard for claims and affirmative defenses, respectively. (33) The court further noted that the purpose of both Rules 8(b)(1)(A) and 8(a)(2) is to ensure that fair notice is provided to the opposing party, which is accomplished by pleading sufficient facts to satisfy the Twombly plausibility standard. (34) Applying the Twombly standard, the court held that the affirmative defenses had to be amended to include a sufficient factual basis. (35)

* The Purpose of Twombly Applies Equally to Affirmative Defenses--The third line of reasoning used by courts applying a general Rule 8 pleading standard is that the practical purpose behind Twombly's plausibility standard is universal to all pleadings. One of the primary rationales for employing a plausibility test is to limit unnecessary discovery costs by weeding out groundless claims. (36) Appraising the sufficiency of defendant's affirmative defenses in light of plaintiff's motion to strike, the court in Burget v. Capital West Securities, Inc., No. CIV-09-1015-M, 2009 WL 4807619 (W.D. Okla. Dec. 8, 2009), held that this proposition applies equally to plaintiffs and defendants, and that adverse parties should be provided enough information about an affirmative defense to allow them to tailor their discovery. The court explained that applying this standard to affirmative defenses was in keeping with Twombly's desire to avoid unnecessary discovery. (37) Similarly, the court in Safeco Insurance Co. of America v. OHara Corp., No. 08-CV-10545, 2008 WL 2558015 (E.D. Mich. June 25, 2008), reasoned that the obligation to eliminate boilerplate pleadings is a principle that Twombly applies to both plaintiffs and defendants. "Boilerplate defenses," said the court, "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." (38) Thus, the courts in both Burget and Safeco, recognizing that boilerplate affirmative defenses can generate superfluous expenses, concluded that such pleadings contravene the purpose of Twombly and granted plaintiffs' 12(f) motions to strike. (39)

Refusal to Apply the Plausibility Standard to Affirmative Defenses

In contrast to the applying courts, refusing courts have abandoned the longstanding notion that the same pleading standard applies to claims and defenses. In lieu of applying a general Rule 8 pleading standard, refusing courts maintain that claims and defenses have distinct pleading standards. This analysis is founded on three fundamental arguments: 1) Rule 8(a) governs claims pleading; 2) Rule 8(c)(1) governs the pleading of affirmative defenses; and 3) Twombly exclusively interprets Rule 8(a)(2). Based on these premises, refusing courts have concluded that Twombly's interpretation of Rule 8(a)(2) is inapplicable to affirmative defenses. (40)

Rule 8(c)(1), which specifically addresses affirmative defenses, provides that "[i]n responding to a pleading, a party must affirmatively state any avoidance or affirmative defense," and then delineates a nonexclusive list of 19 affirmative defenses, such as contributory negligence, fraud, res judicata, and statute of limitations. (41) Construing this rule, the court in Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 WL 4981730 (D.V.I. Dec. 8, 2009), concluded that the Twombly pleading standard does not apply to affirmative defenses. The plaintiff in Charleswell challenged three of the defendant's boilerplate affirmative defenses as insufficient under Twombly and Iqbal. Evaluating the plaintiff's Rule 12(f) motion to strike, the court concluded that Rule 8(c)(1) alone governs the pleading of affirmative defenses. In explaining why Twombly does not apply to affirmative defenses, the court noted that the text of Rule 8(a)(2) requires the pleading of facts and is, thus, distinct from Rule 8(c)(1). The court held that because Rule 8(a)(2) requires a party to "show" facts that evidence an entitlement to relief, whereas Rule 8(c)(1) only obliges a party to "state" an affirmative defense, the two rules have distinct pleading standards. The court, therefore, denied the plaintiff's motion to strike. (42)

Employing a similar textual analysis, the court in First National Insurance Co. of America v. Camps Services, Ltd., No. 08-cv-12805, 2009 WL 22861 (E.D. Mich. Jan. 5, 2009), eschewed a general Rule 8 pleading standard and held that the plausibility standard does not apply to affirmative defenses. Rejecting the plaintiff's argument that defendant's affirmative defenses must comport with the pleading requirements of Twombly, the court asserted that Rule 8(c) establishes a distinct pleading standard for affirmative defenses. The court reasoned that since Twombly interprets the "short and plain statement" requirement of Rule 8(a)(2) and this language is not included in Rule 8(c)(1), Twombly does not apply to Rule 8(c)(1). (43) Recognizing that Rule 8(b)(1)(A)'s "short and plain terms" requirement is similar to Rule 8(a)(2)'s "short and plain statement" requirement, the court also addressed whether Twombly applies to Rule 8(b). In contrast to Hayne, however, the court found this correlation irrelevant, holding that Rule 8(c) alone, and not Rule 8(b), governs the pleading of affirmative defenses. (44) The court, therefore, denied plaintiff's Rule 12(f) motion to strike defendant's boilerplate affirmative defenses. (45)

Application of the "Hybrid" Standard to Affirmative Defenses

Although applying courts hold that Twombly applies generally to all pleadings, and refusing courts counter that Rule 8(c) governs affirmative defenses and is unaffected by Twombly, the court in Kaufmann v. Prudential Insurance Co. of America, No. 09-10239-RGS, 2009 WL 2449872 (D. Mass. Aug. 6, 2009), held that both philosophies partially apply. The plaintiff in Kaufmann moved to strike 12 affirmative defenses for failure to provide fair notice under Twombly. Remarking "that sauce for the goose is sauce for the gander" the court stated that it was inclined to hold that both plaintiffs and defendants have the same notice obligation under Rule 8. (46) The court also observed, however, that due to the commonly recognized usage of the affirmative defenses listed in Rule 8(c)(1), these defenses intrinsically provide sufficient notice to satisfy the plausibility standard. (47) The court, therefore, adopted a hybrid standard, holding that the defendant was required to allege a factual basis only for those affirmative defenses not listed in Rule 8(c)(1). (48) This compromise approach offers a middle ground between the divergent positions of the applying and refusing courts.

Conclusion

Although some jurisdictions have refused to, or only partially, apply Twombly to affirmative defenses, the vast majority of federal courts that have addressed the issue, including Florida federal district courts, hold that Twombly's plausibility test applies to the pleading of all affirmative defenses. It remains to be seen whether the federal circuit courts will adopt the majority, minority, hybrid, or some other approach in this evolving area of the law. For the time being, federal court practitioners, particularly in Florida, should be aware of district courts' propensity to wield the Twombly plausibility standard as a double-edged sword and plead their affirmative defenses accordingly. (49)

(1) Twombly, 550 U.S. at 563.

(2) See Tara Prods., Inc. v. Hollywood Gadgets, Inc., No. 09-61436-CIV, 2009 WL 4800542, at *1 (S.D. Fla. Dec. 11, 2009); Hansen v. ABC Liquors, Inc., No. 3:09-cv-966-J-34MCR, 2009 WL 3790447, at *1 (M.D. Fla. Nov. 9, 2009); King v. ITT Educ. Servs., Inc., No. 3:09-cv-848-J-32MCR 2009 WL 3583881, at *2 (M.D. Fla. Oct. 27, 2009); Chetu, Inc. v. Salihu, No. 09-60588-CIV, 2009 WL 3448205, at *1 (S.D. Fla. Oct. 26, 2009); Dawes-Ordonez v. Forman, No. 0960335-CIV, 2009 WL 3273898, at *2 (S.D. Fla. Oct. 9, 2009); Florida Bus. Brokers Ass'n, Inc. v. Williams, No. 2:09-cv-145-FtM-29SPC, 2009 WL 3028311, at *1 (M.D. Fla. Sept. 17, 2009); Bluewater Trading LLC v. Willmar USA, Inc., No. 07-61284-CIV, 2008 WL 4179861, at *1 (S.D. Fla. Sept. 9, 2008); FDIC v. Bristol Home Mortgage Lending, LLC, No. 08-81536-CIV, 2009 WL 2488302, at *2 (S.D. Fla. Aug. 13, 2009); Zeron v. C&C Drywall Corp, Inc., No. 09-60861-CIV, 2009 WL 2461771, at *1 (S.D. Fla. Aug. 10, 2009); Gonzalez v. Spears Holdings, Inc., No. 0960501-CIV, 2009 WL 2391233, at *1 (S.D. Fla. July 31, 2009); Torres v. TPUSA, Inc., No. 2:08-cv-618-FtM-29DNF, 2009 WL 764466, at *1 (M.D. Fla. Mar. 19, 2009); Holtzman v. B/E Aerospace, Inc., No. 07-80551-CIV, 2008 WL 2225668, at *2 (S.D. Fla. May 29, 2008); Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007).

(3) Out of 40 cases surveyed in this article, 35 applied Twombly to affirmative defenses. See Hayne v. Green Ford Sales, Inc., No. 09-2202-JWL-GLR, 2009 WL 5171779, at *2 (D. Kan. Dec. 22, 2009) (stating that the majority of courts addressing this issue have applied the standard announced in Twombly and clarified in Iqbal to affirmative defenses).

(4) FED. R. CIV. P. 8(a)(2).

(5) Conley, 355 U.S. at 47-48.

(6) Id. at 47 (internal quotations and footnote omitted).

(7) Id. at 45-46 (footnote omitted).

(8) The plaintiffs in Twombly brought an antitrust class action on behalf of subscribers of local telephone or high-speed Internet services. The defendants were local exchange carriers that allegedly conspired to restrain trade in violation of [section]1 of the Sherman Act by agreeing not to compete territorially and engaging in parallel conduct to restrain the growth of their competitors. The Supreme Court reversed the Second Circuit and upheld the district court's conclusion that the complaint was insufficient because it failed to plead facts that plausibly suggested the existence of an agreement. Twombly, 550 U.S. at 548-53.

(9) Id. at 559.

(10) Justice Souter delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, Breyer, and Alito joined. Justice Stevens filed a dissenting opinion joined in part by Justice Ginsburg. Id. at 547.

(11) Id. at 563.

(12) Id. at 555.

(13) Id. at 557.

(14) See Temple v. Circuit City Stores, Inc., Nos. 06 CV 5303(JG), 06 CV 5304(JG), 2007 WL 2790154, at *3 (E.D.N.Y. Sept. 25, 2007) (discussing the confusion generated by Twombly over the pleading standard for complaints); see also J. Douglas Richards, Three Limitations of Twombly: Antitrust Conspiracy Inference in a Context of Historical Monopoly, 82 St. John's L. Rev. 849, 851-52 (2007) (arguing that Twombly's plausibility requirement was not meant to be applied outside the context of antitrust conspiracies).

(15) Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (holding that a civil action can be brought against federal officials for depriving persons of their constitutional rights under the color of federal law).

(16) The plaintiff in Iqbal was a Pakistani Muslim arrested on identity fraud charges in the wake of the 9/11 terrorist attacks. Plaintiff alleged that he was subjected to intrusive searches and beaten while in the government's custody due to his race, religion, and national origin. The appeal applied to only two defendants, former Attorney General John Ashcroft and Director of the Federal Bureau of Investigation Robert Mueller. Reversing the Second Circuit's affirmance of the district court, the Supreme Court held that the complaint failed to plead enough factual matter to meet the Twombly plausibility standard. Iqbal, 129 S. Ct. at 1942-45.

(17) Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Thomas, and Alito joined. Justice Souter filed a dissenting opinion in which Justices Stevens, Ginsburg, and Breyer joined. Justice Breyer also filed a dissenting opinion. Id. at 1941.

(18) Id. at 1953.

(19) Id. at 1950 (noting that the court should assume the truth of well-pleaded factual allegations, whereas legal conclusions do not carry a presumption of truth and serve only as the "framework of a complaint").

(20) 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 [section]1274 at 323 (1969))).

(21) See, e.g., Wm. Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds and remanded, 478 U.S. 1015 (1986) (explaining that an affirmative defense is insufficient under Rule 12(f) only if it is certain that there is no set of facts that could support the defense, thus, employing a standard analogous to Conley); Wyshak v. City Natl Bank, 607 F.2d 824, 827 (9th Cir. 1979) ("The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense." (citing Conley, 355 U.S. at 47-48)).

(22) Fed. R. Civ. P. 12(f).

(23) See Woodfield, 193 F.3d at 362 ("We acknowledge that in some cases, merely pleading the name of the affirmative defense ... may be sufficient."); see, e.g., Book v. Moulton, No. 3:05 CV 0875, 2005 WL 3307361, at *1 (N.D.N.Y. Dec. 6, 2005).

(24) C. WRIGHT & A. MILLER, 5 FEDERAL PRACTICE AND PROCEDURE [section]1274 (3d ed. 1990).

(25) 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).

(26) Twombly, 550 U.S. at 555.

(27) See, e.g., In re Montagne, Bankruptcy No. 08-10916, Adversary No. 08-1024, 2010 WL 424224, at *4 (Bkrtcy. D. Vt. Feb. 1, 2010) (applying Twombly and noting that affirmative defenses are subject to the general pleading requirements of Rule 8(a)); OSF Healthcare Sys. v. Banno, No. 08-1096, 2010 WL 431963, at *2 (C.D. Ill. Jan. 29, 2010) (applying Twombly and Iqbal and noting that affirmative defenses must satisfy Rule 8(a)'s short and plain statement requirement); Bank of Montreal v. SK Foods, LLC, No. 09 C 3479, 2009 WL 3824668, at *2-*4 (N.D. Ill. Nov. 13, 2009) (holding that affirmative defenses must satisfy Twombly's interpretation of Rule 8(a)); Tracy v. NVR, Inc., No. 04-CV-6541L, 2009 WL 3153150, at *7 (W.D.N.Y. Sept. 30, 2009) (applying Twombly and Iqbal and noting that affirmative defenses are subject to the general pleading requirements of Rule 8(a)); In re Mission Bay Ski & Bike, Inc., Nos. 07 B 20870, 08 A 55, 2009 WL 2913438, at *6 (Bkrtcy. N.D. Ill. Sept. 9, 2009) (applying Twombly and noting that affirmative defenses must satisfy Rule 8(a)'s short and plain statement requirement); JPMorgan Chase Bank, NA. v. Mal Corp., No. 07 C 2034, 2009 WL 804049, at *2 (N.D. Ill. Mar. 26, 2009) (same); Greenheck Fan Corp. v. Loren Cook Co., No. 08-cv-335-jps, 2008 WL 4443805, at *1 (W.D. Wis. Sept. 25, 2008) (same); T-Mobile USA, Inc. v. Wireless Exclusive USA, LLC, No. 3:08-CV-0340-G, 2008 WL 2600016, at *2 (N.D. Tex. July 1, 2008) (same); Lexington Ins. Co. v. Titan Int'l, Inc., No. 07-3148, 2008 WL 687384, at *1 (C.D. Ill. Mar. 11, 2008) (same).

(28) Shinew, No. 08-14256, 2009 WL 1076279, at *3 (citing C. WRIGHT & A. MILLER, 5 FEDERAL PRACTICE & PROCEDURE [section]1274 (3d ed. 1990) (internal quotations omitted)).

(29) Id. at *6.

(30) Id. at *4.

(31) Id. at *4-*6.

(32) FED. R. CIV. P. 8(b)(1)(A).

(33) Hayne, No. 09-2202-JWL-GLR, 2009 WL 5171779, at *3 (D. Kan. Dec. 22, 2009).

(34) Id.

(35) Id.

(36) Twombly, 550 U.S. at 559 ("Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no reasonably founded hope that the [discovery] process will reveal relevant evidence to support a [section]1 claim." (internal quotations and citations omitted)).

(3) Id.

(38) Safeco, No. 08-CV-10545, 2008 WL 2558015, at *1 (E.D. Mich. June 25, 2008).

(39) Burget, 2009 WL 4807619, at *4; Safeco, 2008 WL 2558015, at *1-*2.

(40) See, e.g., Westbrook v. Paragon Sys., Inc., No. 07-0714-WS-C, 2007 U.S. Dist. LEXIS 88490, at *2-*3 (W.D. Ala. Nov. 29, 2007) (holding that Twombly's interpretation of Rule 8(a) does not apply to affirmative defenses and noting that unlike Rule 8(a), neither Rule 8(b) nor Rule 8(c) requires a defendant to "show" an entitlement to relief).

(41) FED. R. CIV. P. 8(c)(1) reads in full: "In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver."

(42) Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 WL 4981730, at *6 (D.V.I. Dec. 8, 2009).

(43) First Nat'l Ins. Co., 2009 WL 22861 (E.D. Mich. Jan. 5, 2009) ("Twombley's [sic] analysis of the 'short and plain statement' requirement of Rule 8(a) is inapplicable to this motion under Rule 8(c).").

(44) Id. See also Romantine v. CH2M Hill Eng'rs, Inc., No. 09-973, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009) (refusing to apply Twombly to affirmative defenses through Rule 8(b) because Rule 8(b) does not apply to affirmative defenses).

(45) First Nat'l Ins. Co, 2009 WL 22861, at *3.

(46) Kaufmann v. Prudential Insurance Co. of America, No. 09-10239-RGS, 2009 WL 2449872 (D. Mass. Aug. 6, 2009).

(47) Id. Although fraud is listed in Rule 8(c)(1), the court held that a party asserting it as an affirmative defense must plead a factual basis.

(48) Id. (holding that the defendant must amend its affirmative defenses, other than those listed in Rule 8(c)(1), to include a semblance of factual content).

(49) See Kaufmann, 2009 WL 2449872, at *1 (describing the plaintiff's use of Iqbal in a 12(f) motion to strike as wielding the decision "as a double-edged sword").

Manuel John Dominguez, William B. Lewis, and Anne F. O'Berry are attorneys in the Palm Beach Gardens office of Berman DeValerio, a class action law firm focused on securities, antitrust, and consumer litigation.

Mr. Dominguez, a partner at the firm, practices primarily antitrust litigation. He graduated from Florida State University Law School, where he was a member of the Transnational Journal of Law and Policy. Dominguez is a former assistant attorney general in the Department of Economic Crimes.

Mr. Lewis, an associate, practices primarily antitrust litigation. He earned his undergraduate degree, cum laude, from Colgate University. Mr. Lewis received his J.D. and MBA, cum laude, from the University of Florida, where he was a member of the Florida Journal of Law and Public Policy.

Ms. O'Berry, of counsel, practices securities and antitrust litigation. She received her B.A. from the University of Pennsylvania and her J.D. from New York University School of Law, where she was an articles editor on the Annual Survey of American Law. She clerked for U.S. District Court Judge Debevoise.

This column is submitted on behalf of the Business Law Section, Louis T. M. Conti, chair, and Melanie E. Damian and Peter F. Valori, editors.
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Author:Dominguez, Manuel John; Lewis, William B.; O'Berry, Anne F.
Publication:Florida Bar Journal
Date:Jun 1, 2010
Words:5184
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