Saturday, September 4, 2010

Does the new pleading regime of Iqbal and Twombly apply to affirmative defenses?

Most litigators know (at least they should) that a pair of recent U.S. Supreme Court cases (Iqbal and Twombly) effectively heightened the standards for pleading causes of action in a complaint.  In the old days (i.e., the early 2000s), a plaintiff's lawyer could just throw together a complaint with a skeletal set of conclusory assertions to match the elements for each cause of action.  Now the Supreme Court has interpreted Rule 8(a) of the Rules of Civil Procedure to require that "a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face."  This "plausibility" requirement sent shockwaves through the plaintiffs' bar.

The Minnesota Litigator (Seth Leventhal) has been covering an interesting case in the District of Minnesota that raises the question whether this same heightened plausibility requirement should apply to defendants when they are pleading affirmative defenses.  He tentatively takes the position that it should:
While the substantially increased burden of the latest gloss on federal pleadings rules are subject to criticism, it is hard to take issue with the view that, if the rules are “enhanced,” it should be a two-way street.
That appears to be the view of the majority of the 20 or so district courts that have taken up the question.  (There are apparently no circuit-level opinions.)  According to a recent article on, however, there is a minority position as well:
Of the 94 U.S. District Courts, 13 have rendered decisions adopting the majority view, but there is a minority view, adopted by six district courts, that refuses to apply the Twombly-Iqbal standard to affirmative defenses. See Francisco v. Verizon South Inc., 2010 WL 2990159 (E.D.Va. 2010) (adopting majority view, but acknowledging those districts that have adopted the minority view).

* * *

The minority view maintains that FRCP provisions 8(b) and (c), addressing defenses, do not have a “showing” requirement because the verb is not used in either subdivision of Rule 8.  Thus, subsections 8(b) and (c) require only that the pleader “state” in short and plain terms its defenses. Without the “showing” requirement applicable to “claims for relief,” the minority view posits that Twombly-Iqbal’s plausibility standard does not control the pleading of affirmative defenses. See Francisco v. Verizon South Inc., 2010 WL 2990159 at *6.
Without actually reading any of these cases [since I am now in-house, I no longer read cases], it seems to me that there are a couple other plausible reasons for treating affirmative defenses differently:
  1. Affirmative defenses are waived if not pleaded.  
  2. Defendants have only 21 days to plead in response to a complaint, while plaintiffs can spend years investigating and developing the factual basis for their claims.

Taken together, these two reasons seem to provide a pretty plausible argument that the difference in wording between Rule 8(a) and Rules 8(b) & (c) -- which is rather stark, really -- should be given meaning.  Any thoughts, Mr. Gillette?


  1. Bart - Are ALL affirmative defenses waived if not pleaded? (I know, of course, about Fed. R. Civ. P. 12(h)(1) as to particular threshold ones (12(b)(2)(-(5))) No chance of amending to add other affirmative defenses down the line? I think there is. See e.g. Monahan v. New York City Dept. of Corrections, 214 F. 3d 275 (2d Cir. 2000). If, as I believe, there is no blanket rule barring amendment of pleadings to add affirmative defenses when/if facts are discovered justifying them, does your second point lose some persuasive force?

    It seems unfair if plaintiffs must meet the heightened pleading standards and defendants can respond with a laundry list of legal defenses and not a hint of any factual bases justifying their being invoked. Also, plaintiffs (and sometimes courts) have to spend considerable time and resources in flushing out whether a defendant actually has any "legitimate" affirmative defenses, when defendants are allowed to fire a defensive indiscriminate blunderbuss.

    So it is not simply some abstract notion of symmetry but the same pragmatic recognition that prompted Iqbal/Twombly, I think, that favors the majority position.

  2. Good points, Seth. You are correct, I think, that a defendant can move to amend a pleading to add most affirmative defenses not originally raised, and I agree that does weaken my argument. Still, although such amendments are liberally granted, they do require separate motion practice, and you just never know. Certainly no defense lawyer is going to bank on such an amendment being granted if they have an inkling that a certain affirmative defense might be viable. Think, for example, of laches, which is frequently part of the blunderbuss you mention. Perhaps the statute of limitations is six years, and the complaint was filed five years after the cause of action seems to have accrued. Most defense lawyers will throw it in because the merits of the defense are so fact-dependent that it is impossible to evaluate them at that stage of the lawsuit without discovery. The only salient fact is that it has been five years. That is certainly not enough to make the defense "plausible," but is it enough go ahead and plead it? After all, pleading it at least lets the court and plaintiff know that the issue is there, which seems preferable to letting the defendant sleep on these defenses and add them late in discovery. In other words, which is the bigger pragmatic concern: dealing with constant motions to amend to add new affirmative defenses late in discovery, or the concern you mention about forcing plaintiffs to spend time any resources flushing the the legitimate affirmative defenses?

    All that said, I don't disagree that there is much to be said for the majority view. Just trying to be contrarian.

  3. By the way, Seth, congratulations on being the first third-party commenter on the Gillette-Torvik blog.

  4. Bart - Thanks for the congrats! There's more where that came from. You might want to see how your spam filter works when you get tired of me.

    Above, I did not address your textual argument on Rule 8 (paraphrased: the 8(a) requires you "show" that you're entitled to relief vs. 8(c) requirement that you "state" your defenses).

    Not that my personal views on the limits of very close textual reading matter, but to paraphrase Hanns Johst, "when a court quotes a dictionary as a basis for its decision, I reach for my gun...." That is, I am skeptical when courts decide important questions of policy on what I view as subtle linguistic apercus. More often than not, that, to me, comes across as reverse engineering to get to a desired result, rather than a grounded principled basis for decision.

    That said, I would submit that Rule 8(a) might refer to a "statement of the claim showing that the pleader is entitled to relief" because if it only required a "statement that the pleader is entitled to relief," it could be interpreted as allowing a pleading, for this required element, to simply say: "I am entitled to relief." The rule obviously requires more than that.

    If you want to go all textual on us, I think it is more to the point that 8(a) requires a "statement of the CLAIM" and not a statement of the "FACTS."

  5. Such cynicism, Seth! Though some cynics might argue that the true "policy" behind Iqbal and Twombley is just to help defendants and hurt plaintiffs, in which case the difference in the Rule's wording wording Rule would be just what the Supreme Court needs to extend that policy: a plausible textual hook for a distinction.


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