Commercial Litigation and Arbitration

Does Twiqbal’s Plausibility Standard Apply to Affirmative Defenses? Case Law Split — Policy Arguments against Application (Including Reliance on Still-Extent Official Form)

Jam Tire, Inc. v. Harbin, 2014 U.S. Dist. LEXIS 124581 (N.D. Ohio Sept. 5, 2013):

Since the Supreme Court's decision in Iqbal v. Ashcroft, 556 U.S. 662 (2009), more than 230 federal decisions have addressed whether the plausibility standard applies to affirmative defenses pled in an answer. William M. Janssen, The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses, 70 Wash & Lee L. Rev. 1573, 1602 (2013). The majority trend appears to cut against the proposition. Id . at 1606-07. No federal appellate court has ruled on the issue and district courts in the Sixth Circuit are split. Compare McLemore v. Regions Bank, 2010 WL 1010092 * 14 (M.D. Tenn. 2010) aff'd on other grounds, 682 F.3d 414 (6th Cir. 2012). ("[T]he Sixth Circuit has consistently used 'fair notice' as the standard for whether a defendant has sufficiently [*6]  pleaded an affirmative defense. Twombly and Iqbal did not change this." ) (citations omitted); First Nat'l Ins. Co. of America. v. Camps Serv., Ltd., 2009 WL 22861 *2 (E.D. Mich. 2009 ) ("Twombly's analysis of the 'short and plain statement' requirement of Rule 8(a) is inapplicable to [a motion to strike affirmative defenses]."); United States v. Quadrini, 2007 WL 4303213 *4 (E.D. Mich. 2007) ("This clarification by the Supreme Court that a plaintiff must plead sufficient facts to demonstrate a plausible claim, or one that has a 'reasonably founded hope' of success, cannot be a pleading standard that applies only to plaintiffs."); HCRI TRS Acquirer, LLC v. Iwer, 708 F. Supp. 2d 687, 691 (N.D. Ohio 2010) ("[B]oth complaints and affirmative defenses should 'provide enough notice to the opposing party that indeed there is some plausible, factual basis for the assertion and not simply a suggestion of the possibility that it may apply to the case.'" (quoting Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 650 (D. Kan. 2009))).

I am not persuaded that Twombly's heightened pleading standards apply to affirmative defenses. First, I am required to give the Federal Rules of Civil Procedure their plain meaning. Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 123 (1989) (quoting Walker v. Armco Steel Corp., 446 U.S. 740, 750, n. 9 (1980)). Rule 8(c)(1) requires a party to "affirmatively state any avoidance or affirmative defense." Fed. R. Civ. P. 8(c)(1). Twombly addresses only Rule 8(a)(2)'s requirement that a pleading contain a "short and plain statement of the claim showing that the pleader is entitled to relief;" it does not establish a pleading requirement [*7]  for Rule 8(c). Weddle v. Bayer AG Corp., 2012 WL 1019824 *2 (S.D. Cal. 2012). Furthermore, "unlike Rule 8(a)(2)'s requirement that a pleader 'show' an entitlement to relief, Rule 8(c) requires only that the responding party 'affirmatively state' any affirmative defenses." Id.

Second, Official Form 30 supports this conclusion. Official forms set out in the Appendix to the Federal Rules of Civil Procedure are "sufficient" to withstand any attack brought under the Federal Rules; attorneys are encouraged to rely upon them in practice. Fed. R. Civ. P. 84. Official Form 30 depicts an "Answer Presenting Defenses Under Rule 12(b)." Form 30 ¶¶ 4, 6, Fed. R. Civ. P. Appendix of Forms. Paragraphs four and six of Official Form 30 would unlikely survive the Twombly plausibility standard, yet they are held out as sufficient pleadings. The mere assertion a complaint fails to state a claim constitutes a sufficiently pled affirmative defense. See, e.g., Tyco Fire Prods. LP v. Victaulic Co., 777 F. Supp. 2d 893, 900 (E.D. Pa. 2011). Likewise, stating that a claim falls outside the statute of limitations is a sufficiently pled affirmative defense. See, e.g., EEOC v. Joe Ryan Enters., Inc., 281 F.R.D. 660, 664 (M.D. Ala. 2012).

Third, important policy considerations support a less restrictive standard as it pertains to affirmative defenses. Although a plaintiff may have latitude in the timing of the filing of his complaint, Rule 12(a)(1) requires a defendant to respond to it within 21 days. Furthermore, [*8]  "[f]ailure to plead an affirmative defense in the first responsive pleading to a complaint generally results in a waiver of that defense." Horton v. Potter, 369 F.3d 906, 911 (6th Cir. 2004). (Citation omitted). A defendant is required to respond to allegations, often very serious allegations, without the benefit of discovery. To apply a plausibility standard to affirmative defenses would place an unrealistic burden on defendants irreconcilable with the plain meaning of Rule 8(c) and the overriding consideration that pleadings "must be construed so as to do justice." Fed. R. Civ. P. (8)(e). Based upon these reasons, I decline to apply that standard here.

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