As discussed in in my Best Practices for Pleading Complaints post, Rule 8(a) of the Federal Rules of Civil Procedure (FRCP) states the minimum requirements for pleading a complaint:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Two decisions by the United States Supreme Court imposed heightened pleadings requirements beyond the simple notice requirements stated in Rule 8(a). The two cases are Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009). They are collectively referred to “Twiqbal” by some commentators.
Read together, Twiqbal requires a court to accept as true all of the allegations contained in a complaint, but not those allegations that are legal conclusion, and then to consider with those allegations made out a plausible claim for relief. Where the court finds a plausible claim has been stated, the claim can survive a motion to dismiss for failure to state a claim.
Rule 8(c) requires the responding party, typically the defendant, to assert “any avoidance or affirmative defense” to the claims raised in the complaint. Numerous defenses are enumerated in Rule 8(c), however the list is not intended to be exhaustive. A failure to raise certain defenses at the pleading stage may result in the waiver of such defenses, absent a court granting leave to amend the responsive pleading to assert additional defenses.
A motion to strike via Rule 12(f) is the primary mechanism for objecting to an insufficient defense. The Twiqbal decisions did not address whether the heightened pleading standard is equally applicable to affirmative defenses.
Federal courts are divided on the applicability of Twiqbal to affirmative defenses. For example, while the Second and Eleventh Circuits have concluded that the same pleading standard applies to affirmative defenses as to the allegations of a complaint, other courts have taken a contrary view. See GEOMC Co. v. Calmare Therapeutics Inc., 918 F.3d 92, 98 (2d Cir. 2019) (“We conclude that the plausibility standard of Twombly applies to determining the sufficiency of all pleadings, including the pleading of an affirmative defense, but with recognition that, as the Supreme Court explained in Iqbal, applying the plausibility standard to any pleading is a “context-specific” task.”) and Losada v. Norwegian (Bahamas) Ltd., 296 F.R.D. 688 (S.D.Fla. 2013) (“one cannot demand the same volume of facts as could be required of a Complaint. Nonetheless, the Court finds there should be sufficient facts pleaded in an affirmative defense to show how and why the defense asserted applies to a case.”). Compare Greenberger v. Bober, Markey, Fedorovich & Co., 343 F.R.D. 375, 377 (N.D.Ohio 2023) (Twombly and Iqbal did not change the pleading practice within this Circuit for defenses.)
Those that decline to apply the plausability standard cite three primary reasons. First, Rule 8 (a) (2) requires pleaders to “show” their entitlement to relief, whereas Rule 8 (c) only requires respondents to “state” their defenses. Second, the FRCP provides an easy mechanism to remedy deficient complaints, but only a last resort for insufficient defenses (a motion to strike), which indicates that defenses must meet less-strict requirements. Third, while a motion to dismiss can resolve a case, thereby avoiding discovery entirely, motions to strike only prolong pre-discovery motion practice; as such, raising the standard for pleading affirmative defenses would only encourage more motions to strike.
The cautious practitioner will consult the case law in her federal circuit to determine the applicable pleading standard for asserting affirmative defenses.