Commercial Litigation and Arbitration

Twombly and Iqbal Do Not Extend to Affirmative Defenses — Caselaw Split

From Charleswell v. Chase Manhattan Bank, N.A., 2009 U.S. Dist. LEXIS 116358 (D.V.I. Dec. 8, 2009):

In their motion, plaintiffs assert that Lloyds's Affirmative Defenses Seven, Nine, and Fourteen are insufficiently plead under the standards set by two recent Supreme Court rulings — Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). In Twombly, the Court held that a complaint must allege "[f]actual allegations . . . to raise a right to relief above the speculative level." 550 U.S. at 555. Iqbal elaborated on the Twombly standard, requiring a complaint to contain "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570). In their present motion, plaintiffs urge this Court to apply the same standard to affirmative defenses.

District courts are divided on whether Twombly and Iqbal should extend to affirmative defenses. Compare First Nat'l Ins. Co. of Am. v. Camps Servs. , No. 08-cv-12805, 2009 U.S. Dist. LEXIS 149, at *5 (E.D. Mich. Jan. 5, 2009) ("Twombly's analysis of the 'short and plain statement' requirement of Rule 8(a) is inapplicable to [a motion to strike affirmative defenses]."), and Westbrook v. Paragon Sys., Inc., No. 07-0714-WS-C, 2007 U.S. Dist. LEXIS 88490, at *1-*2 (S.D. Ala. Nov. 29, 2007) (refusing to apply Twombly to a motion to strike affirmative defenses by distinguishing Rule 8(c) from Rule 8(a)), with Safeco Ins. Co. of Am. v. O'Hara Corp. , No. 08-CV-10545, 2008 U.S. Dist. LEXIS 48399, at *3 (E.D. Mich. June 25, 2008) (holding that "defenses fall within the ambit of Twombly"), Holtzman v. B/E Aerospace, Inc., No. 07-80551, 2008 U.S. Dist. LEXIS 42630, at *6 (S.D. Fla. May 28, 2008) (citing Twombly in support for the proposition that a defendant must "alleg[e] facts as part of the affirmative defenses" to allow plaintiff to "prepare adequately to respond to those defenses").

Few cases have addressed this issue in the Third Circuit. *** [I]n Romantine [v. CH2M Hill Engineers, No. 09 -973, 2009 U.S. Dist. LEXIS 98699 (W.D. Pa. Oct. 23, 2009)], Magistrate Judge Lisa Pupo Lenihan ruled that Twombly was inapplicable to affirmative defenses and denied a motion to strike such defenses. 2009 U.S. Dist. LEXIS 98699, at *3-*4.

This Court concludes that the pleading standards articulated in Twombly and Iqbal do not extend to affirmative defenses. Twombly interpreted Rule 8(a)(2), which states that a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Rule 8(c)(1), which provides for affirmative defenses, states only that "a party must affirmatively state any avoidance or affirmative defense." Fed. R. Civ. P. 8(c)(1). There is no requirement under Rule 8(c) that a defendant "show" any facts at all. Thus, the Court rejects plaintiffs' arguments on this issue.

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