Fending off the Use of a Rule 12(f) Motion to Strike Affirmative Defenses By Peter M. Durney and Jonathan P. Michaud

HIS ARTICLE addresses potentially effective arguments a defendant may

raise when confronted with a motion to strike affirmative defenses based upon the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly1 and Ashcroft v. Iqbal.2 As most litigators by now know, in Twombly, the Supreme Court held that in order to withstand a motion to dismiss, a plaintiff must plead sufficient facts in a complaint to allege “a plausible entitlement to relief.”3 Plaintiffs have since argued, with some success, that this heightened pleading standard applies with equal force to a defendant’s affirmative defenses. Facing such a motion early on in litigation can present myriad problems for a defendant. Upon being properly served with a Summons and Complaint, without the benefit of discovery and with only twenty-one days to file an answer in federal court, defendants to a large extent must anticipate the proof and raise appropriate defenses in somewhat of a vacuum. Yet, should an aggressive opponent immediately challenge some of those defenses, the very real prospect looms of possibly losing otherwise valid affirmative defenses, should an offense motion be successful. This article discusses the various rationales used by federal district courts in deciding such motions and considers how a defendant

1 550 U.S. 544 (2007). 2 556 U.S. 662 (2009). 3 550 U.S. at 559.

Peter M. Durney has been a partner at Cornell & Gollub in Boston since 1987. He has represented hundreds of domestic and foreign corporations in the state and federal courts in each of the New

England states and elsewhere in the U.S. His broad litigation experience encompasses personal injury, products liability, medical device, automotive, marine and commercial litigation, professional malpractice and appellate work. Jonathan P Michaud is an associate in the products liability and toxic tort practice group at Cetrulo & Capone LLP in Boston, Massachusetts. In that capacity, he is part of a team of attorneys that defend and advise clients on a local, regional and national level and act as defense liaison counsel for asbestos actions in Massachusetts and Rhode Island. may best fend off such an attack to ensure that its affirmative defenses are preserved at least until adjudicated on the merits.

I. The Heightened Pleading

Standard under Twombly/Iqbal In Twombly, the Supreme Court

considered the pleading standard sufficient to satisfy the requirement that a plaintiff make “a short and plain

T

Fending off the Use of a Rule 12(f) Page 439

statement of the claim that the pleader is entitled to relief.”4 The Supreme Court held that in order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead sufficient facts “to raise a right to relief above the speculative level.”5 This standard “requires more than labels and conclusions,” such that “a formulaic recitation of the elements of a cause of action will not do.”6 Thus, the Twombly court expressly retired the long established standard established set forth in Conley v. Gibson,7 which held that a pleading should not be dismissed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”8

The new heightened pleading standard subsequently was clarified in Iqbal, as the Supreme Court reiterated that a plaintiff’s “complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’”9 The Iqbal court further outlined the two underlying principles of Twombly. First, in evaluating the sufficiency of a complaint, bare legal conclusions that do nothing more than recite the elements of a cause of action are not entitled to an assumption of truth.10 Second, a complaint must contain sufficient factual allegations to allow a court to infer that it states a “plausible

4 Id. at 557; FED.R.CIV.P. 8(a)(2). 5 Twombly, 550 U.S. at 555. 6 Id. at 556. 7 355 U.S. 41, 45-46 (1957). 8 Twombly, 550 U.S. at 563 (citing Conley). 9 Iqbal, 556 U.S. at 1949 (quoting Twombly, 550 U.S. at 563). 10 Id. at 1940 (citing Twombly, 550 U.S. at 555).

claim for relief.”11 Courts considering a motion to dismiss were thereby directed to engage in a two-pronged analysis: (1) to identify legal conclusions that are not entitled to an assumption of truth; and (2) to identify factual allegations and determine if, taken as true, “they plausibly give rise to an entitlement to relief.”12 The Circuit Courts of Appeal have not ruled on whether the heightened pleading standard of Twombly/Iqbal applies to the pleading of affirmative defenses, and there is fairly even disagreement between, and even within, the United States district courts.13

II. Affirmative Defenses

Federal Rule of Civil Procedure

8(b)(1)(A) requires a party responding to a pleading to “state in short and plain terms its defenses to each claim asserted against it.”14 Rule 8(c)(1) states that a defendant “must affirmatively state any avoidance or affirmative defense,” and provides a list of nineteen affirmative defenses.15 However, this list of

11 Id. at 1950. 12 Id. 13 See, e.g., Cottle v. Falcon Holdings Management, LLC, No. 2:11-CV-95-PRC, 2012 WL 266968, *1 (N.D. Ind. January 30, 2012) (noting split among district courts on issue). 14 Rule 9(b) provides that certain defenses, fraud, mistake, and condition of the mind, must be plead with particularity. 15 Those affirmative defenses are “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

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affirmative defenses “is not intended to be exhaustive.”16

“Affirmative defenses plead matters extraneous to the plaintiff's prima facie case, which deny plaintiff's right to recover, even if the allegations of the complaint are true.”17 The burden of proving an affirmative defense rests with the party asserting it.18 Such a defense must be proven by a preponderance of credible evidence.19 If proven by a preponderance of the evidence, “[a]n affirmative defense will defeat the plaintiff’s claim.”20 Federal courts have consistently held that the failure by a defendant to plead an affirmative defense in their answer generally results in waiver and exclusion from the action.21

Rule 12(f) of the Federal Rules of Civil Procedure permits a party, or the court acting sua sponte, to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” This provides a mechanism to “‘clean up the pleadings,

of limitations; and waiver.” FED.R.CIV.P. 8(c)(1). 16 5 CHARLES ALLEN WRIGHT AND ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE, § 1271 (3d ed. 2011). 17 Fed. Deposit Ins. Corp. v. Main Hurdman, 655 F. Supp. 259, 262 (E.D. Cal. 1987). 18 Jones v. Taber, 648 F.2d 1201, 1203 (9th Cir. 1981). 19 Martin v. Weaver, 666 F.2d 1013, 1019 (6th Cir. 1981). 20 5 WRIGHT AND MILLER, supra note 17, at § 1270. 21 See, e.g., FDIC v. Ramirez Rivera, 869 F.2d 624, 626 (1st Cir. 1989); Ingraham v. U.S., 808 F.2d 1075, 1078 (5th Cir. 1987); Stephenson v. Davenport Community School Dist., 110 F.3d 1303, 1305 n. 3 (8th Cir. 1997).

streamline litigation, and avoid unnecessary forays into immaterial matters.’”22

III. Traditional Standard of Review

Traditionally, courts applied

Conley’s “no set of facts” standard to pleadings that were challenged by a Rule 12(b)(6) or Rule 12(f) motion. Under that standard, an affirmative defense was held valid as long as it provided “fair notice” to the plaintiff of the defense.23 Thus, an affirmative defense was generally immune from a motion to strike “unless it appear[ed] with certainty that plaintiffs would succeed despite any state of facts which could be proved in support of the defenses.”24

Even when there were no disputed questions of fact or law, courts often were reluctant to strike an affirmative defense from an action when no discovery yet had taken place. As the First Circuit Court of Appeals noted in Salcer, “even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite

22 Sun Microsytems, Inc. v. Versata Enterprises, Inc., 630 F. Supp.2d 395, 402 (D. Del. 2009) (quoting McInerney v. Moyer Lumber & Hardware, Inc., 244 F. Supp.2d 393, 402 (E.D. Pa. 2002)). 23 See Lawrence v. Chabot, 182 Fed. Appx. 442, 456 (6th Cir. 2006); see also Clem v. Corbeau, 98 Fed. Appx. 197, 203 (4th Cir. 2004). 24 See William Z. Salcer, Panfeld, Edelman v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984), vacated on other grounds, 478 U.S. 1015, 106 S.Ct. 3324, 92 L.Ed.2d 731; see also Tyco Fire Products LP v. Victaulic Co., 777 F. Supp.2d 893, 897 (E.D. Pa. 2011).

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properly are viewed as determinable only after discovery and a hearing on the merits.”25

In that same vein, when considering a motion to strike an affirmative defense, courts would consider whether the defense was “legally sufficient under any set of facts which may be inferred from the allegations of the pleading.”26 Generally, courts would only grant a motion to strike an affirmative defense under Rule 12(f) upon a finding that (1) there was no question of fact or law that might allow the challenged defense to succeed; (2) under no set of circumstances could the defense succeed, regardless of what evidence could be marshaled to support it; and (3) prejudice would result from the defense remaining in the case.27

Given the low bar set by the “no set of facts” standard of Conley v. Gibson, rarely were plaintiffs inclined to file motions to strike affirmative defenses. At the same time, wary of waiver, defense counsel would routinely draft long lists of

25 Salcer, 744 F.2d at 939; see also EEOC v. Kelley Drye & Warren, LLP, No.10-CV-655-LTS, 2011 WL 3163443, *1-2 (S.D.N.Y. July 25, 2011). 26 Glenside West Corp. v. Exxon Co. USA, 761 F. Supp. 1100, 1115 (D. N.J. 1991). 27 See SEC v. Sands, 902 F. Supp. 1149, 1165-1166 (C.D. Cal. 1995), aff'd sub nom. SEC v. First Pac. Bancorp, 142 F.3d 1186 (9th Cir. 1998). See also Augustus v. Bd. of Public Instruction, 306 F.2d 862, 868 (5th Cir. 1962); Johnson v. Chrysler Corp., 187 F.R.D. 440, 441 (D. Me. 1999); Microsoft Corp. v. PTI (USA), No. 1-CV-2018, 2003 WL 21406291, *1 (E.D.N.Y. Mar. 14, 2003) (setting forth same three-part test); Texas 1845 LLC v. Wu Air Corp., No. 11-CV-1825, 2012 WL 382828, *6 (E.D.N.Y. Feb. 6, 2012).

affirmative defenses in their responsive pleadings, often in “boiler plate” fashion. Historically, courts would generally accept this practice.28 In short, there was a general acceptance of the status quo. Not so after Twombly and Iqbal, when suddenly plaintiffs began to ask courts to apply the heightened pleading standard to affirmative defenses, creating “a frenzy of district court opinions reexamining this position.”29 Alas, some federal district courts have been receptive to plaintiffs’ position, which should be a “wake-up” call for the astute practitioner.

IV. Rationales of District Courts That

Have Applied the Heightened Pleading Standard to Affirmative Defenses

Federal district courts applying the

heightened pleading standard of Twombly/Iqbal to affirmative defenses have justified doing so on a number of grounds, including (1) fairness to the parties; (2) a textual reading of the Federal Rules of Civil Procedure; and (3) efficiency and judicial economy.30 We take those grounds one at a time.

28 See Shinew v. Wszola, No. 08-14256, 2009 WL 1076279, *2 (E.D. Mich. Apr. 21, 2009) (noting that a “grocery list” of affirmative defenses with no facts to support them “has been widely employed (and tolerated) as a form of notice pleading.”). 29 Paducah River Painting, Inc. v. McNational Inc., No. 5-CV-00135-R, 2011 WL 5525938, *2 (W.D. Ky. Nov. 14, 2011). 30 Recent district court decisions applying the heightened pleading standard of Twombly/Iqbal to affirmative defenses include: Smithville 169 v. Citizens Bank & Trust Co., No. 4:11-CV-0872-DGK, 2012 WL 13677 (W.D. Mo. Jan. 4, 2012); Barnes &

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(1) Fairness to the Parties In essence, this simplistic rationale is

based upon common sense. Some courts have stated that it would be inequitable to hold plaintiffs to a higher pleading standard than defendants. Such a rationale arguably is grounded in Twombly’s

Noble, Inc. v. LSI Corp., No. C-11-2709 EMC, 2012 WL 359713 (N.D. Cal. Feb. 2, 2012); Schlief v. Nu-Source, Inc., No. 10-4477, 2011 WL 1560672 (D. Minn. Apr. 25, 2011); Dion v. Fulton Friedman & Gullace LLP, No. 11-2727 SC, 2012 WL 160221 (N.D. Cal. Jan. 17, 2012); Smith v. Mustang, Independent School District No. I-69, No. CIV-11-1146-M, 2012 WL 10848 (W.D. Okla. Jan. 3, 2012); Haley Paint Co. v. E.I. DuPont De Nemours and Co., 279 F.R.D. 331, 336 (D. Md. 2012); Puryear v. Indiana Pallet Co., No. 2:11-CV-12-PRC, 2011 WL 5553697 (N.D. Ind. Nov. 15, 2011); Aguilar v. City Lights of China Restaurant, Inc., No., DKC 11-2416, 2011 WL 5118325 (D. Md. Oct. 24, 2011); Microsoft Corp. v. Lutian, No. 1:10 CV 1373, 2011 WL 4496531 (N.D. Ohio Sept. 27, 2011); Cassetica Software, Inc. v. Computer Sciences Corp., No. 11 C 2187, 2011 WL 4431031 (N.D. Ill. Sept. 22, 2011); J&J Sports Productions, Inc. v. Martinez, No. CV-F-11-00676-LJO-SMS, 2011 WL 4373960 (E.D. Cal. Sept. 19, 2011); Barry v. EMC Mortg., No. DKC 10-3120, 2011 WL 4352104 (D. Md. Sept. 15, 2011); Gessele v. Jack in the Box, Inc., No. 3:10-cv-960-ST, 2011 WL 3881039 (D. Ore. Sept. 2, 2011); Bottoni v. Sallie Mae, Inc., No. C10-03602 LB, 2011 WL 3678878 (N.D. Cal. Aug. 22, 2011); Lucas v. Jerusalem Café, LLC, No. 4:10-CV-00582-DGK, 2011 WL 3511059 (W.D. Mo. Aug. 10, 2011); Barnett v. Uniformed Services University of the Health Sciences, No. DKC 10-2681, 2011 WL 3511049 (D. Md. Aug. 9, 2011); Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 WL 2990159 (E.D. Va. July 29, 2010).

acknowledgment of “the need for fair notice” in a plaintiff’s Complaint, and that such a concern should be equally applied to defendants.31 The reasoning is simple. Just as a defendant faced with a factually deficient Complaint, a plaintiff should not have to respond to defenses that lack factual support.32

In U.S. v. Quadrini, the district court reasoned that the same pleading standards must apply to defendants and plaintiffs “otherwise a court could not make a Rule 12(f) determination on whether an affirmative defense is adequately pleaded under Rules 8 and/or 9 and could not determine whether the affirmative defense would withstand a Rule 12(b)(6) challenge.”33 Accordingly, “[l]ike the plaintiff, a defendant also must plead sufficient facts to demonstrate a plausible affirmative defense, or one that has a ‘reasonably founded hope’ of success.”34

(2) Textual Consistency Application of the same pleading

standard to defendants and plaintiffs, alike, is also found by a textual comparison of the relevant pleading rules. Courts using the textual approach reason that because both Rule 8(a)(2) and Rule 8(b) of the Federal Rules of Civil Procedure require a “short and plain” statement in the pleading of claims and

31 See LSI, 2012 WL 359713 (“[g]iving fair notice to the opposing party would seem to apply as well to affirmative defenses given the purpose of Rule 8(b)’s requirements for defenses.”). 32 See Francisco, 2010 WL 2990159 at *6. 33 No. 2:07-CV-13227, 2007 WL 4303213 (E.D. Mich. Dec. 6, 2007). 34 Id.

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affirmative defenses, it follows that both plaintiffs and defendants must plead sufficient facts to put the other side on notice of the basis of their defenses and claims.35 Such an approach requires a defendant to plead sufficient facts in support of its defenses as “both its non-conclusory factual content and the reasonable inferences from that content, must plausibly suggest a cognizable defense available to the defendant.”36

For example, in Aguilar v. City Lights of China Restaurant, the court noted that while Rules 8(a) and 8(b) were “not identical,” they contained “important textual overlap, with both subsections requiring a ‘short and plain’ statement of the claim or defense.”37 In addition, the court noted that Form 30, which is appended to the Federal Rules pursuant to Rule 84, “strongly suggests that bare-bones assertions of at least some affirmative defenses will not suffice, as the Form’s illustration of a statute of limitations’ defense sets forth not only the name of the affirmative defense, but also facts in support of it.”38 Similarly, in Hayne v. Green Ford Sales, the district court similarly applied Twombly to affirmative defenses, in part because Rule 8(b)(1)(A), which governs pleading defenses generally, contains the same

35 See Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp.2d 1167, 1171 (N.D. Cal. 2010) (applying Twombly to affirmative defenses and equating Rule 8(a)(1) and Rule 8(b)(1)). 36 Haley Paint Co., 279 F.R.D. at 336. 37 No. DKC 11-2416, 2011 WL 5118325, *3 (D. Md. Oct. 24, 2011). 38 Id.

“short and plain” statement that is required of plaintiffs.39

(3) Preservation of Resources Other courts have adopted the

heightened pleading standard to help streamline more complex factual disputes to the issues capable of being reasonably supported at the earliest stage. In the view of such courts, applying the heightened pleading standard to affirmative defenses serves the policy goals of Twombly/Iqbal in promoting litigation efficiency, in erasing boilerplate affirmative defenses, and in eliminating or at least limiting unnecessary discovery.40 In applying a heightened pleading standard to affirmative defenses, the district court in HCRI TRS Acquirer v. Iwer noted that Twombly and Iqbal were “designed to eliminate the potential high costs of discovery associated with meritless claims,” and that “[b]oilerplate affirmative defenses that provide little or no factual support can have the same detrimental effect on the cost of litigation as poorly worded complaints.”41 By reducing the number of affirmative defenses to only those with factual support, courts may believe that they are narrowing the issues for the parties and fulfilling the policy goals of Twombly and Iqbal. Of course, eliminating a practice that has survived for so long is never that simple. In many defendants’ view, the

39 263 F.R.D. 647, 650 (D. Kan. 2009). 40 See HCRI TRS Acquirer, LLC v. Iwer, 708 F. Supp.2d 687, 691 (N.D. Ohio. 2010). 41 Id.; see also Barnes, 718 F. Supp.2d at 1172 (applying heightened pleading standard weeded out boilerplate listing of affirmative defenses).

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premature elimination of defenses is akin to throwing the baby out with the bath water. More to the point, the harsh result of having one’s defenses stricken cannot possibly be justified in the absence of meaningful discovery. So say the defendants, in any case.

(4) Harsh Results Clearly, applying the heightened

pleading standard to affirmative defenses can lead to harsh results for a defendant. In Aguilar v. City Lights of China Restaurant, the court struck five affirmative defenses: accord and satisfaction, estoppel, laches, payment/offset, and fraud.42 As to the first four defenses, the court held that they were “conclusory legal statements wholly devoid of any supporting factual content.”43 Similarly, in Puryear v. Indiana Pallet Co.,44 the district court struck the affirmative defenses of failure to state a claim upon which relief can be granted and the applicable statute of limitations, finding the former defense a “bare bones assertion,” insufficient to survive the heightened pleading standard.45 The court also found that the statute of limitations defense was insufficient as it “fail[ed] to cite to the applicable statute of limitations, the time limits in the statute, or the manner in which the statute bars Plaintiff’s case.”46

This sets up the proverbial situation of being “stuck between a rock and a hard

42 Aguilar, 2011 WL 5118325 at *4. 43 Id. 44 No. 2:11-CV-12-PRC, 2011 WL 5553697 (N.D. Ind. Nov. 15, 2011). 45 Id. at *1. 46 Id.

place.” If the heightened pleading standard applies to affirmative defenses, then a defendant may be caught between risking waiver by failing to plead an affirmative defense, and the court potentially finding that an affirmative defense with no apparent factual support should be stricken. Thankfully, a number of persuasive arguments can be made in support of the position that Twombly and Iqbal do not apply to the pleading of affirmative defenses.

V. The Defendants’ Opposition

An increasing number of district

courts have declined to apply the heightened pleading standard of Iqbal/Twombly to a defendant’s affirmative defenses.47 Accordingly, a

47 Recent district court decisions declining to apply the heightened pleading standard of Twombly/Iqbal to affirmative defenses include the following: Meas v. CVS Pharmacy, Inc., No.11cv0823 JM(JMA), 2011 WL 2837432 (S.D. Cal. July 14, 2011); Holdbrook, 2010 WL 865380; Michaud v. Greenberg & Sada, P.C., No. 11-cv-01015-RPM-MEH, 2011 WL 2885952 (D. Colo. July 18, 2011); Ioselev v. Schilling, No. 3:10-cv-1091-J-34MCR, 2011 WL 5855342 (M.D. Fla. Nov. 22, 2011); Cottle, 2012 WL 266968; Bayer Cropscience AG v. Dow Agrosciences, LLC, No. 10-1045 RMB/JS, 2011 WL 6934557 (D. Del. Dec. 30, 2011); United States v. Center for Diagnostic Imaging, Inc., No. C05-00558RSL, 2011 WL 6300174 (W.D. Wash. Dec. 16, 2011); Whitserve, LLC v. GoDaddy.com, Inc., No. 3:11-CV-948 (JCH), 2011 WL 5825712 (D. Conn. Nov. 17, 2011); Brossart v. DIRECTTV, No. 11-786 (DWF/JJK), 2011 WL 5374446 (D. Minn. Nov. 4, 2011); Aros v. United Rentals, Inc., No. 3:10-CV-73 (JCH), 2011 WL 5238829 (D. Conn. Oct. 31, 2011); Sony/ATV Music Pub. LLC v. D.J.

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defendant faced with a motion to strike brought under Rule 12(f) should focus on some core rationales that those courts have used to deny such motions.

(1) Motions to Strike are

Disfavored As a preliminary matter, defendants

should emphasize that motions to strike pursuant to Rule 12(f) are disfavored. The Fourth Circuit Court of Appeals has noted that such motions are disfavored, “because striking of a pleading is a drastic remedy and because it is often sought by

Miller Distributors, Inc., No. 3:09-cv-01098, 2011 WL 4729807 (M.D. Tenn. Oct. 7, 2011); Bank of Beaver City v. Southwest Feeders, L.L.C., No. 4:10CV3209, 2011 WL 4632887 (D. Neb. Oct. 4, 2011); Leon v. Jacobson Transp. Co., Inc., No. 10 C 4939, 2010 WL 4810600 (N.D. Ill. Nov. 19, 2010); Vurimindi v. Fuqua School of Business, No. 10-234, 2011 WL 3803668 (E.D. Pa. Aug. 29, 2011); Ash Grove Cement Co. v. MMR Constructors, Inc., No. 4:10-CV-04069, 2011 WL 3811445 (W.D. Ark. Aug. 29, 2011); Baroness Small Estates, Inc. v. BJ’s Restaurants, Inc., No. SACV 11-00468-JST (Ex), 2011 WL 3438873 (C.D. Cal. Aug. 5, 2011); Security Life of Denver Ins. Co. v. Shah, No. CV411-008, 2011 WL 3300320 (S.D. Ga. Aug. 1, 2011); InvestmentSignals, LLC v. Irrisoft, Inc., No. 10-cv-600-SM, 2011 WL 3320525 (D. N.H. Aug. 1, 2011); Tyco Fire Products LP v. Victaulic Co., 777 F. Supp.2d 893 (E.D. Pa. 2011); GE Capital Commercial, Inc. v. Worthington Nat’l. Bank, No. 3:09-CV-572-L, 2011 WL 5025153 (N.D. Tex. Oct. 20, 2011); Chiancone v. City of Akron, No. 5:11CV337, 2011 WL 4436587 (N.D. Ohio Sept. 23, 2011); Chevron Intellectual Property LLC v. Alborz Petroleum Inc., No. 11cv0889 IEG (CAB), 2011 WL 3515929 (S.D. Cal. Aug. 11, 2011).

the movant simply as a dilatory tactic.”48 Not surprisingly, then, Rule 12(f) motions to strike are “often not granted unless there is a showing of prejudice to the moving party.”49 In light of the disfavored status of Rule 12(f) motions as vehicles for determining questions of fact or law before discovery has taken place, a defendant should stress that it would be inappropriate for a court to strike pleadings prior to any discovery.50 Thus, the argument goes that applying the heightened pleading standard to a

48 See Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316, 347 (4th Cir. 2001); see also Treece v. Winston-Wood, No. 3:10-2354-DCN-JRM, 2011 WL 6780132, *2 (D. S.C. Dec. 27, 2011); Maupin v. Howard County Public School System, No. L-10-2659, 2012 WL 401071, *7 (D. Md. Feb. 7, 2012) (noting motions to strike as a “drastic remedy”); SEC v. Gendarme Capital Corp., No. CIV S-11-0053 KJM-KJN, 2012 WL 346457, *1 (E.D. Cal. Jan. 31, 2012) (“motions to strike are disfavored and infrequently granted.”); FDIC v. Gladstone, 44 F. Supp.2d 81, 84-85 (D. Mass. 1999) (motions to strike affirmative defenses are generally “disfavored”); Kaiser Found. Hospitals v. California Nurses Ass’n, No. 11-5588 SC, 2012 WL 440634, *4 (N.D. Cal. February 10, 2012) (“Motions to Strike ‘are generally disfavored because they are often used as a delaying tactics and because of the limited importance of pleadings in federal practice.’”) (quoting Rosales v. Citibank, 133 F. Supp.2d 1177, 1180 (N.D. Cal. Feb. 14, 2001)). 49 WRIGHT AND MILLER, FEDERAL PRACTICE

AND PROCEDURE, § 1381 (3d ed. 2011). 50 See EEOC v. Kelley Drye & Warren, 2011 WL 3163443 at *5; see also Holdbrook, 2010 WL 865380 at *2 (declining to apply Twombly to pleading of affirmative defenses, “particularly in light of the disfavored status of motions to strike.”).

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defendant’s affirmative defenses would only encourage motions to strike, which is entirely counter to the well-established standard that such motions are strongly disfavored.

(2) Textual Support Whether textual support or tea

leaves, the cases of Twombly and Iqbal may be read differently by different people. The simple truth is that neither Twombly nor Iqbal addressed the pleading of affirmative defenses. The holdings of Twombly and Iqbal applied to the pleading requirements of a plaintiff’s Complaint under the “short and plain statement” requirement of Federal Rule 8(a)(1), when attacked by a Rule 12(b)(6) motion to dismiss. Both cases were silent as to whether the ruling extended to affirmative defenses.51 One might logically argue, then, that since Twombly and Iqbal did not address the pleading standards of affirmative defenses pursuant to Rule 8(c), “Iqbal and Twombly have no application to the pleading requirements of Rule 8(c).”52

In comparing the relevant federal rules, courts have found a distinction between Rule 8(a)(2), which requires the pleader to show entitlement to relief, and Rule 8(b)(1), which only requires a statement of affirmative defenses “in short and plain terms.” In Enough for Everyone. v. Provo Craft & Novelty, the district court held that, in the absence of guidance from any Court of Appeals, and

51 See Davis v. Indiana State Police, 541 F.3d 760, 763-764 (7th Cir. 2008) (noting that Twombly did not address affirmative defenses). 52 See Chiancone, 2011 WL 4436587 at *4.

given the split in the district courts, the question as to whether to apply Twombly “is best resolved by reference to the text of the Federal Rules.”53 In reading the federal pleading rules, the court held that:

… the sub-parts of the rule appear to demand more from a party stating a claim for relief, i.e., the party stating a claim must show he or she is entitled to relief. In contrast, a party stating a defense need not show he or she is entitled to relief, but need only state any defense, and state each defense in short and plain terms.54 Given this distinction, the court

concluded that the Twombly/Iqbal heightened pleading standard did not apply to affirmative defenses.55 This retreat to the fair notice standard of years

53 SA CV 11-1161 DOC, 2012 WL 177576, *2 (C.D. Cal. Jan. 20, 2012). 54 Id. (emphasis in original). 55 Id. See also Schlief, 2011 WL 1560672 at *9 (declining to apply Twombly to affirmative defenses and noting that “language in FED.R.CIV.P. 8(a) that provided the basis for the Supreme Court’s decisions does not appear in Rule 8(b) or 8(c), which govern defenses”); Unicredit Bank AG v. Bucheli, No. 10-2436-JWL, 2011 WL 4036466, *5 (D. Kan. Sept. 12, 2011) (comparing Rule 8(a)(2), Rule 8(b) and Rule 8(c) and finding differences “provide a textual basis for a less rigorous pleading standard.”); Meas, 2011 WL 2837432 (finding that neither Rule 8(a) or Rule 8(b) contained “language that precisely corresponds to Rule 8(a)’s language requiring the pleader ‘show’ that he is entitled to relief”).

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gone by sounded a comforting note to defendants.56

(3) Fair Notice, Not Plausibility Prior to Twombly and Iqbal, courts

have held that the pleading of affirmative defenses requires only “fair notice” of the defense.57 That only “fair notice,” rather than “plausibility,” be provided by the defendant is grounded in a textual reading of the Federal Rules of Civil Procedure 8(a) and 8(c), and should continue to apply even after Twombly and Iqbal. The district court explained this rationale in Tyco Fire Products v. Victaulic Company:

In light of the differences between Rules 8(a) and 8(c) in text and purpose, the Court concludes that Twombly and Iqbal do not apply to affirmative defenses. An affirmative defense need not be plausible to survive; it must merely provide fair notice of the issue involved. . . . [T]he requisite notice is provided where the affirmative defense in question alerts the adversary to

56 Baroness Small Estates, 2011 WL 3438873 at *5–6 (defendant notified plaintiff of its affirmative defenses, which, while boilerplate, sufficed at the outset of the case). 57 See Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 (9th Cir. 1979) (“[t]he key to pleading an affirmative defense is to give the plaintiff fair notice of the defense.”); see also Davis v. Sun Oil Co., 148 F.3d 606, 612 (6th Cir. 1998) (holding that sufficient notice of defense was provided by simple statement that “plaintiffs’ claims are barred by the doctrine of res judicata”).

the existence of the issue for trial. Providing knowledge that the issue exists, not precisely how the issue is implicated under the facts of a given case, is the purpose of requiring averments of affirmative defenses. Thus, the Court will only strike defenses challenged on sufficiency grounds if they do not meet this low standard.58

Consistent with this position, a

number of courts have held that fair notice in pleading affirmative defenses and the heightened pleading standards articulated in Twombly and Iqbal do not apply to affirmative defenses.59 These courts have held that affirmative defenses, when read in conjunction with the Complaint, provide the plaintiff with sufficient notice required by the rule. “The affirmative defense must provide enough information such that the plaintiff is given ‘fair notice of what … the claim is and the grounds upon which it rests.’”60

58 777 F. Supp.2d at 900-901. 59 See, e.g., Center for Diagnostic Imaging, 2011 WL 6300174 at *2 (citing cases). 60 See Puryear, 2011 WL 5553697 (quoting Twombly, 550 U.S. at 555); see also Kaufmann v. Prudential Ins. Co. of America, No. 09-10239-RGS, 2009 WL 2449872, *1 (D. Mass. Aug. 6, 2009) (“[w]ith the exception of fraud, the designation of a listed defense is sufficient notice to a plaintiff of its basic thrust.”); Barnhart v. American Home Mortg. Servicing, Inc., No. 2:11-cv-569-FtM-99SPC, 2012 WL 366930, *2 (M.D. Fla. Feb. 3, 2012) (stating that Rule 8 obligates a defendant to provide “fair notice” rather than “detailed factual allegations” in his affirmative defenses); Ioselev, 2011 WL 5855342 at *2 (holding that the statement that a claim “is

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These principles were applied in U.S. ex rel. Smith v. Boeing.61 In that case, the plaintiff moved to strike the defendant’s affirmative defenses pursuant to Federal Rule 12(f) and Twombly, alleging that the affirmative defenses “are asserted in ‘shot-gun’ style with no supporting facts.”62 The court noted that “[a] defense is considered insufficient if it cannot succeed, as a matter of law, under any circumstances.”63 In denying plaintiff’s motion to strike, the court held that the defendant’s affirmative defenses as plead had not deprived the plaintiff of fair notice, and that “a motion to strike an affirmative defense as insufficient is disfavored as a drastic remedy, and the court ‘should decline to strike material from a pleading unless that material has no possible relation to the controversy and may prejudice the opposing party.’”64

Requiring “factual plausibility” from affirmative defenses, rather than “fair notice,” also would seem to run counter to certain appellate decisions that have discussed issues of waiver and notice. Circuit courts of appeal have made it clear that the key to affirmative defenses is fair notice, even going so far as to hold that a party may raise a defense at trial that was not even pleaded as an affirmative defense, as long as the plaintiff had notice of that defense at

barred by the statute of limitations” sufficient to put the party on notice as to the defense). 61 No. 05-1073-WEB, 2009 U.S. Dist. LEXIS 71625 (D. Kan. Aug. 13, 2009). 62 Id. at *6. 63 Id. at *7 (citing Wilhelm v. TLC Law Care, Inc., No. 07-2465-KHV, 2008 WL 474265, *2 (D. Kan 2008)). 64 Id. at *9 (quoting Wilhelm, 2008 WL 474265, * 2) (internal citations omitted).

some point during the litigation.65 In Williams v. Ashland Engineering, the First Circuit Court of Appeals examined whether the defense of preemption had been waived by a party’s failure to include it as an affirmative defense in its answer.66 The First Circuit held that where defense counsel had written to plaintiff’s counsel before the close of discovery raising the preemption defense and both parties had briefed the issue, “no ambush occurred.”67 The court also eschewed a hyper-technical analysis of the pleading rules, and made “a practical, commonsense assessment about whether Rule 8(c)’s core purposeto act as a safeguard against surprise and unfair prejudice—has been vindicated.”68 Courts have continued to rely on this exception to the harsh application of a waiver rule even after Twombly and Iqbal.69 If a defense given fair notice of can be pursued at trial without it ever having been formally plead, then it would make little sense to strike affirmative

65 See, e.g., Hassan v. U.S. Postal Service, 842 F.2d 260, 263 (11th Cir. 1988); Hewitt v. Mobile Restaurant Technology, Inc., 285 Fed. Appx. 694, 696 (11th Cir. 2008); Brinkley v. Harbour Recreation Club, 180 F.3d 598, 612 (4th Cir. 1999) (“[a]bsent unfair surprise or prejudice to the plaintiff, a defendant’s affirmative defense is not waived when it is raised in a pre-trial dispositive motion.”); Williams v. Ashland Engineering Co., Inc., 45 F.3d 588, 592 (1st Cir. 1995). 66 45 F.3d at 592-593. 67 Id. at 593. 68 Id. 69 See Massachusetts Asset Financing Corp. v. MB Valuation Services, Inc., 248 F.R.D. 359 (D. Mass. 2008); see also Roush v. Stone, No. 2:08-cv-141, 2010 WL 3037003, *3 (S.D. Ohio. Aug. 2, 2010).

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defenses pleaded at the outset, prior to meaningful discovery.

(4) Concerns of Twombly Not

Implicated It also is important to educate the

court on the potential waste of judicial resources that may result from the application of Twombly’s heightened pleading standard to affirmative defenses. Some courts have expressed a concern that the failure to apply the heightened pleading standard to affirmative defenses will result in delay and waste of the court’s and the parties’ resources. However, in raising the pleading standard in Twombly and Iqbal, the Supreme Court intended to prevent unfounded cases from proceeding to costly discovery. The Supreme Court specifically noted the time and expense of allowing an action to proceed to discovery, and stated that when a plaintiff fails to plead sufficient facts in a Complaint to show a plausible entitlement to relief, “this basic deficiency should … be exposed at the point of minimum expenditure of time and money by the parties and the court.”70

The District Court, in Leon v. Jacobson Transportation Company, explained the rationale for not apply heightened pleading standard to affirmative defenses as follows:

the driving force behind Twombly and Iqbal was to make it more difficult to use a bare-bones complaint to open the

70 Twombly, 550 U.S. at 558 (quoting 5 WRIGHT AND MILLER, § 1216) (internal quotation marks omitted).

gates to expensive discovery and force an extortionate settlement. The point was to reduce nuisance suits filed solely to obtain a nuisance settlement. The Court, though, has never once lost sleep worrying about defendants filing nuisance affirmative defenses and considers the risk that defendants would file nuisance defenses sufficiently small so as not to warrant extending Twombly and Iqbal.71 The concerns of Twombly simply are

not implicated by affirmative defenses.72 Other courts have stated that

applying the heightened pleading standard to affirmative defenses almost certainly guarantees the waste that Twombly and Iqbal sought to eradicate. One District Court noted the following:

To permit Plaintiffs to prevail on this motion would create two unacceptable results: 1) Plaintiffs would be encouraged to continue to file Motions to Strike in virtually every case where a defendant had pleaded an affirmative defense even when the plaintiff could easily discern the bases for the defense; 2) Defendants would necessarily delay filing answers until

71 No. 10 C 4939, 2010 WL 4810600, *1 (N.D. Ill. Nov. 19, 2010). 72 See id.; see also Lane v. Page, 272 F.R.D. 581, 596 (D. N.M. 2011) (“[D]eciding whether a complaint survives a motion to dismiss may determine whether discovery will occur at all, whereas an affirmative defense at most affects the scope of discovery.”).

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discovery had permitted the factual pleading sought by plaintiffs. In the alternative, those defendants would continually seek leave to amend and the Court’s and parties’ resources would be wasted. This course would also necessitate additional discovery and likely lengthen the time until a matter could be brought to trial. That result is simply untenable.73 One recent District Court decision

considering a Rule 12(f) motion to strike openly wondered “how much energy and expense was invested in the filing of, and opposition to, the instant Motion, which energy and expense could better be put to matters that would advance the determination of the merits of the case.”74 Thus, for any court interested in minimizing potential disputes and conserving resources, it would be unwise to apply the heightened pleading standard to affirmative defenses.

Forcing a defendant to add affirmative defenses in a piecemeal fashion as discovery progresses would require numerous motions to amend, which plaintiffs likely would oppose. The argument flows, then, that applying the

73 Schlottman v. Unit Drilling Co., LLC, No. Civ-08-1275-C, 2009 WL 1764855, *2 (W.D. Okla. June 18, 2009); see also Brossart, 2011 WL 5374446 at *2 (citing Wells Fargo & Co. v. United States, 750 F. Supp.2d 1049, 1052 (D. Minn. 2010)) (applying the heightened pleading standard to affirmative defenses “would significantly change federal practice and would likely increase the burden on the federal courts”). 74 See Aros, 2011 WL 5238829 at *3 n.3.

heightened pleading standard to affirmative defenses almost certainly guarantees discovery disputes and motion practice, increasing the potential for discovery and trial dates to be delayed, with attendant increases in time, money, and effort:

Applying Iqbal and Twombly to affirmative defenses would force defendants to plead fewer affirmative defenses and then, after taking discovery, to move the Court for permission to amend their answers to add affirmative defenses. Plaintiffs would often resist those motions on the grounds that the proposed affirmative defenses would be futile. Thus, another round of motion practice would be added to many cases, increasing the burdens on the federal courts, and adding expense and delay for the parties.75 As a practical matter, even when a

defendant lists a large number of affirmative defenses, those that are clearly not viable later on simply will not be pursued.76 Parties are generally aware of the viability of listed defenses as discovery progresses, and there is little to be gained by striking defenses even if they are technically inappropriate.77 Not

75 Wells Fargo, 750 F. Supp.2d at 1052. 76 See id. at 1051-1052 (“In a typical case, it quickly becomes apparent that most of the affirmative defenses are not viable, and the parties simply ignore them. No judicial intervention is necessary.”). 77 See Cassetica Software, Inc. v. Computer Sciences Corp., No. 11 C 2187, 2011 WL

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to be overlooked is that additional defenses may arise over the course of litigation, and to “preclude defendants from challenging those claims, or [to] require an amended answer before permitting a challenge would result in an undue waste of the Court and the parties’ resources.”78

In any event, even where affirmative defenses may be stricken, a defendant will normally be granted to leave to amend.79 The usual remedy simply creates “increased motions practice with little practical impact on the case’s forward progression.”80

In the final analysis, applying a heightened pleading standard to affirmative defenses simply encourages the filing of motions to strike, more motion practice, and delays. When discovery is delayed, cases often cannot be timely resolved. The discovery process inevitably acts to whittle down viable

4431031, *5 (N.D. Ill. Sept. 22, 2011) (noting that striking affirmative defenses “is not worth the time and expense it takes for the parties and the Court to brief and rule on such a motion”). 78 See Schlottman, 2009 WL 1764855 at *1 (noting that “failure to exhaust administrative remedies” invariably arises as a defense in employment discrimination cases). 79 See Banks v. Realty Mgmt. Serv., No. 1:10cv14 (JCC/TCB), 2010 WL 420037, *1 (E.D. Va. Jan. 29, 2010); see also Smithville 169, 2012 WL 13677 at *2 (finding that party had failed to meet Twombly pleading standard for twelve affirmative defenses, but ordering filing of amended answer rather than striking defenses). 80 See Falley v. Friends University, 787 F. Supp.2d 1255, 1259 (D. Kan. 2011) (citing Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 652 (D. Kan. 2009)).

claims and defenses. Motions for summary judgment further act to streamline issues before trial. The Federal Rules of Civil Procedure already place limits on discovery, and the courts are not without the means to control discovery as it progresses. To encourage what many courts view as an exercise in futility would accomplish little other than to cause delay and further expense, directly counter to the Court’s concerns in Twombly and Iqbal.

(5) It Cannot Be Said that

Plaintiffs and Defendants Are Similarly Situated

Many courts have held that it is

inequitable to apply the heightened pleading standard to defendants as they are not similarly situated to plaintiffs at the commencement of litigation. Simply put, because a plaintiff has time to investigate his or her case, limited only by the statute of limitations, he or she should be held to a higher pleading standard. On the other hand, a defendant has a limited number of days in which to file an answer, and is in far less of a position to conduct a reasonable investigation in that time period.81 Indeed,

81 See Brossart, 2011 WL 5374446 at *2 (declining to apply Twombly to affirmative defenses in part because defendant only had 21 days to file an answer and “is therefore in a much different position from that of plaintiff”); Wells Fargo, 750 F. Supp.2d at 1051 (refusing to extend Twombly to affirmative defenses as parties are in “much different positions . . . a plaintiff has months --- often years --- to investigate a claim before pleading that claim in federal court.”); Schlottman, 2009 WL 1764855 at *1 (“[I]t is

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as a practical matter, it is common for a defendant’s first notice of an incident to be actual service of a complaint.

That affirmative defenses should be treated differently from allegations in a Complaint also is logical given that failure to raise an affirmative defense in an answer can result in waiver. It is only after discovery has taken place that a defendant can properly flesh out the factual basis of an affirmative defense. Rather than forcing a defendant to plead facts that may or may not be apparent at the beginning of a case, the better and more economical route would be to allow the parties to develop support for their defenses through discovery.82

(6) No Prejudice to Plaintiffs Whether or not they would willingly

concede the point, because plaintiffs have had time to investigate the facts and circumstances of an action before filing, they also may become aware of and anticipate the factual bases for many affirmative defenses. Indeed, the facts establishing an affirmative defense can sometimes be established on the face of the plaintiff’s complaint. Therefore, the sufficiency of affirmative defenses “must be compared and considered in connection with the complaint itself.”83 It

likely that an answer, with or without affirmative defenses, will contain fewer factual assertions than a complaint and still be sufficient.). 82 See Hanzlik v. Birach, No. 1:09cv221, 2009 WL 2147845, at *4 (E.D. Va. July 14, 2009) (noting its preference for the parties to develop factual support for affirmative defenses through discovery). 83 Schlottman, 2009 WL 1764855 at *1.

is difficult for the plaintiff to show prejudice, when the allegations contained in plaintiff’s complaint provide the necessary notice for the basis of an affirmative defense.

Likewise, while a defendant may not have any facts within its knowledge to support a particular defense between service of the Complaint and filing of its answer, plaintiffs are generally on notice that certain defenses will be raised without fail in certain actions. For example, a plaintiff in a product liability action usually can anticipate that issues of comparative negligence, plaintiff’s possible misuse of the product and timely notice of the claim will be raised. It would be hard for a plaintiff to show prejudice even from the bare assertion of an affirmative defense when plaintiff is likely aware of its factual applicability. One court noted the futile exercise of requiring a party to plead facts in support of its affirmative defenses by stating “[t]he factual allegations contained in the complaint and answer are necessarily incorporated into a defendant’s recitation of affirmative defenses,” rendering it “absurd to require a defendant to re-plead every fact relevant to an affirmative defense.”84

Accordingly, some courts have argued that plaintiffs simply are not prejudiced by the boilerplate assertion of affirmative defenses. A defendant is required to plead affirmative defenses in order “to avoid surprise and undue

84 See Baum v. Faith Techs., Inc., No.10-CV-0144-CVE-TLW, 2010 WL 2365451, *3 (N.D. Okla. June 9, 2010); LSI, 2012 WL 359713 at 11 (“Re-pleading facts the opposing party has already plead is not necessary to put [a party] on notice of [] defenses.”).

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prejudice by providing the plaintiff with notice and the opportunity to demonstrate why the affirmative defense should not succeed.”85 Where a defendant has pleaded an affirmative defense, he has put the plaintiff on notice, and avoided prejudice.86

In denying plaintiff’s motion to strike affirmative defenses in Ailey v. Midland Funding, LLC, the district court stated that plaintiff had failed to show how prejudice would result from leaving the defenses in the pleadings, especially in light of the fact that the defendant had the burden of proof, and that “there can be no harm in letting them remain in the pleadings if, as the plaintiff contends, they are inapplicable.”87 Therefore, a reviewing court must exercise common sense and practicality in any Rule 12(f) motion and consider if there is any prejudice to the moving party.88

Where the basis for an affirmative defense is readily apparent, there is no prejudice shown, and only further discovery can determine whether an affirmative defense is valid. All that

85 Robinson v. Johnson, 313 F.3d 128, 134-135 (3rd Cir. 2002). 86 See Haley Paint Co., 279 F.R.D. at 337 (noting that plaintiffs “have articulated no prejudice that would result from a denial of their motion [to strike affirmative defenses]”). 87 No. 3:11-CV-77, 2011 WL 3049283, *4 (E.D. Tenn. July 25, 2011) (quoting Conocophillips Co. v. Shafer, No. 3:05 CV 7131, 2005 WL 2280393, *2 (N.D. Ohio. Sept. 19, 2005)). 88 See WRIGHT AND MILLER, FEDERAL

PRACTICE & PROCEDURE, § 1381 (3d. ed. 2009) (“even when technically appropriate and well-founded, Rule 12(f) motions often are not granted in the absence of a showing of prejudice to the moving party”).

should be required is that the affirmative defense “provid[e] knowledge that the issue exists, not precisely how the issue is implicated under the facts of a given case.”89 The fact that a plaintiff may claim that they are unaware of which affirmative defenses apply to which claims is a matter to be settled in discovery, rather than a reason to prematurely strike the entire defense.90 The favored course should not be to strike affirmative defenses prematurely, but rather to allow a clearly plead affirmative defense to stand, pending discovery.

VI. CONCLUSION

Fair notice has long been the test of

affirmative defenses, and neither Twombly nor Iqbal has expressly altered that standard. Both textual and practical realities of pleading lend support to the position expressed herein, that the heightened plausibility standard should not be applied to affirmative defenses.

89 See Victaulic, 777 F. Supp.2d at 901. 90 Id.