Commercial Litigation and Arbitration

Do the Pleading Requirements of Iqbal and Twombly Apply to Affirmative Defenses? Circuit Split

Wells v. Hi Country Auto Group, 2013 U.S. Dist. LEXIS 162731 (D.N.M. Nov. 13, 2013):

The Tenth Circuit has not yet ruled on whether the Iqbal/Twombly pleading standard applies to affirmative defenses. However, other courts in this circuit, this Court included, have held that the Iqbal/Twombly pleading standard does not apply to affirmative defenses.   See Equal Employment Opportunity Commission v. Lockheed Martin, Civil No. 09-952 WJ/RHS (D.N.M. May 20, 2010) (Doc. 47 at 2-4); see also Falley, 787 F.Supp.2d at 1258-59 (acknowledging split in circuits and deciding that pleading standards of Iqbal and Twombly should be limited to complaints and not extended to affirmative defenses). "Unlike a plaintiff filing a complaint, a defendant asserting an affirmative defense does not bring the jurisdiction of the federal courts to bear on what was previously a private matter." Lane v. Page, 272 F.R.D. 581, 596 (D.N.M. 2011) (declining to apply the heightended pleading standard to affirmative defenses). Further, as the Court in Falley pointed out, "applying Twombly and Iqbal to affirmative defenses would also invite many more motions to strike, which achieves little." Falley, 787 F. Supp. 2d at 1259. Thus Plaintiffs' motion will be decided based on the standard set forth in Fed.R.Civ.P. 8(b)(1)(A), which requires that defenses be articulated "in short and plain terms."

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