We’re blogging today because of an annoyance – another of these nuisance motions filed by plaintiffs that should be skirting the border of Rule 11, but unfortunately isn’t. Our particular gripe is a motion to strike a defendant’s pleaded defenses (please don’t call them “affirmative” defenses unless they really are) because they supposedly don’t meet the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (collectively “TwIqbal”). These motions are meritless for the simple reason that defenses, unlike pleading of affirmative claims, are not governed by Fed. R. Civ. P. 8(a) – the rule giving rise to TwIqbal – but rather by Fed. R. Civ. P. 8(c). Rule 8(a), governing “claim[s] for relief,” requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Rule 8(c), governing “affirmative defenses,” requires only that the pleader “must affirmatively state any avoidance or affirmative defense,” with no requirement of any “showing.” Thus, the proper response should be that “[c]ourt[s] do[] not hold defenses to the strictures of Twombly and Plaintiffs’ arguments based upon Twombly and its progeny are roundly rejected.” Hamblen v. Davol, Inc., 2018 WL 1493251, at *3 (M.D. Fla. March 27, 2018).
So there.
The text of the rule should end the matter, but as with removal before service, plaintiffs advance various extra-textual dodges. Those excuses amount to little more than, “because we have to obey TwIqbal, defendants should, too,” whatever the relevant rules actually say. That “double standard” argument deserves a barnyard expletive, but, instead it gets this blogpost – and this quote: “There is nothing dumber than a motion to strike boilerplate affirmative defenses; it wastes the client’s money and the court’s time.” Raymond Weil, S.A. v. Theron, 585 F. Supp.2d 473, 489-90 (S.D.N.Y. 2008).
We start with Twombly:
[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level.
550 U.S. at 555 (lots of citations and quotation marks omitted) (emphasis added). Likewise in Iqbal, the Court made clear that all Rule 8(a) claims must adhere to the same pleading standard:
Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief. . . .” [Rule 8(a)] demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. A pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions” devoid of further factual enhancement. To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
Id. at 677-78 (again with lots of citations and quotation marks omitted) (emphasis added).
None of that has ever been true for the defenses and avoidances that Rule 8(c) simply requires be “affirmatively stated.” “The Federal Rules of Civil Procedure do not require a heightened pleading standard for a . . . defense.” Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009). “When [TwIqbal] restated the requirements of Fed. R. Civ.P. 8, the Justices did not revise the allocation of burdens concerning affirmative defenses; neither [decision] mentions affirmative defenses.” Davis v. Indiana State Police, 541 F.3d 760, 763-64 (7th Cir. 2008). “[A]n affirmative defense ‘need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of [Rule 8] by its bare assertion.’” In re Frescati Shipping Co., 886 F.3d 291, 313 (3d Cir. 2018) (quoting Moody v. Atlantic City Board of Education, 870 F.3d 206, 218 (3d Cir. 2017)).
[Plaintiff] simply argues that the affirmative defense pleadings were defective simply because they were “bare one-liners.” Because the applicable test does not require the district court to count the lines of text that an invoked defense uses and because the defendant’s pleading gave [plaintiff] notice of the defense, the district court did not err in permitting the defendants to assert their affirmative defenses in their answer.
Lawrence v. Chabot, 182 F. Appx. 442, 457 (6th Cir. 2006). In Twombly “the Justices did not revise the allocation of burdens concerning affirmative defenses” nor did Twombly “mention[] affirmative defenses in general.” Davis v. Indiana State Police, 541 F.3d 760, 763-64 (7th Cir. 2009); accord Brownmark Films, LLC v. Comedy Partners, 682 F.3d 687, 691 (7th Cir.2012) (declining to apply TwIqbal “heightened pleading standards” to affirmative defenses). “[T]he ‘fair notice’ required by the pleading standards only requires describing the defense in ‘general terms.’” Kohler v. Flava Enterprises, Inc., 779 F.3d 1016, 1019 (9th Cir. 2015). Given the express language of Rule 8, arguments that, because plaintiffs’ “claims” are subject to TwIqbal, defendants’ defenses should be, too, are paradigms of false equivalence.
Thus, case after case has held that TwIqbal does not apply to affirmative defenses. One particularly detailed discussion of the reasons why occurred in this product liability case involving a prescription drug:
Courts offer at least three justifications for applying a less stringent standard to affirmative defenses. First, these courts maintain that the Twombly standard is rooted in Rule 8(a)’s “showing” requirement. As proof, they cite various parts of the Twombly opinion, including one particularly telling passage where the United States Supreme Court explains that “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Juxtaposing the “showing” language in Rule 8(a) with the “stating” language in Rules 8(b) and (c), these same courts then point out the difference between requiring the statement of something and requiring the showing of something. . . .
Second, relying on well-settled principles of statutory construction, courts applying a lower pleading standard to affirmative defenses maintain that if the drafters of Rule 8 had intended for the “showing” requirement to apply to the pleading of defenses, they knew how to say it, as demonstrated by Rule 8(a), and would have written that requirement into Rules 8(b) and (c). The drafters of Rules 8(b) and (c) having not done so, these courts reason, the judiciary is not free to engraft the “showing” requirement onto these rules itself. Thus, these courts conclude, where, as with Rule 8, the language of the provision being construed is clear, the analysis ends with the language, and the court may not take into account policy considerations.
Lastly . . ., a lower pleading standard is consistent with binding case law. While the Eleventh Circuit has addressed affirmative defenses, it has not extended the pleading requirements of Rule 8(a) beyond claims. Rather, the appeals court has stressed that notice is the main purpose of Rule 8(c). . . .
Based on these rationales, this Court joins the growing number of courts in this circuit and others in finding that a lower pleading standard applies to affirmative defenses. Such an approach is faithful both to the letter and the spirit of Rules 8(b) and (c), as revealed through the plain language of Rule 8 and Eleventh Circuit precedent.
Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 681-82 (S.D. Fla. 2015) (once again omitting lots of quotations and citations). Similarly, the court in Tardif v. City of New York, 302 F.R.D. 31 (S.D.N.Y. 2014), summarized the numerous reasons why TwIqbal does not apply to defenses:
(1) textual differences between Rule 8(a), which requires that a plaintiff asserting a claim show entitlement to relief, and Rule 8(c), which requires only that the defendant state any defenses;
(2) a diminished concern that plaintiffs receive notice in light of their ability to obtain more information during discovery;
(3) the absence of a concern that the defense is “unlocking the doors of discovery”;
(4) the limited discovery costs, in relation to the costs imposed on a defendant, since it is unlikely that either side will pursue discovery on frivolous defenses;
(5) the unfairness of holding the defendant to the same pleading standard as the plaintiff, when the defendant has only a limited time to respond after service of the complaint while plaintiff has until the expiration of the statute of limitations;
(6) the low likelihood that motions to strike affirmative defenses would expedite the litigation, given that leave to amend is routinely granted;
(7) the risk that a defendant will waive a defense at trial by failing to plead it at the early stage of the litigation;
(8) the lack of detail in Form 30, which demonstrates the appropriate pleading of an affirmative defense; and
(9) the fact that a heightened pleading requirement would produce more motions to strike, which are disfavored.
Id. at 33-34 (citations and quotation marks omitted). Accord, e.g.:
First Circuit
Vazquez-Robles v. CommoLoco, Inc., 186 F. Supp.3d 138, 149 (D.P.R. 2016) (“the Court concludes that [TwIqbal] do not apply to affirmative defenses”); Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza, Inc., 287 F.R.D. 119, 123 (D. Mass. 2012) (“the Court declines to apply the heightened pleading standard to defendants’ affirmative defense”).
Second Circuit
Leviton Manufacturing Co. v. Pass & Seymour, Inc., 264 F. Supp.3d 421, 427 (E.D.N.Y. 2017) (“The overwhelming majority view, to which I subscribe, is that the concept of...
