Pleading Affirmative Defenses After Twombly

June 7, 2011

The Supreme Court’s reinterpretation of F.R.C.P. 8 in Bell Atlantic Corp v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) revolutionized pleading practice and created a tsunami of case law concerning the level of specificity required in complaints.  But, plaintiff’s counsel are not the only lawyers having to rethink pleading practice in the wake of Twombly and Iqbal — defense counsel are also scrambling.  The number of motions brought to strike affirmative defenses under F.R.C.P 12(f) for being “insufficient” appears to be rising dramatically over the last four years and, since 2007, there have been no fewer than 80 district court decisions offering up conflicting conclusions to this question: do the higher pleading standards of Twombly apply to affirmative defenses, or only complaints?*

In the last two months alone, at least ten district courts have ruled on the issue, most finding that pleading standards for complaints did not apply to defenses asserted by a party responding to a complaint.  See, e.g.,  Reimer v. Chase Bank (2011 WL 2110242),  Schlief v. Nu-Source (2011 WL 1560672), and Tyco v. Victaulic (2011 WL 1399847).   But in many other recent decisions, courts reached the opposite conclusion – that Twombly and Iqbal should be applied to affirmative defenses.  See, e.g., Hayn v. Green Ford Sales (263 F.R.D. 647), Castillo v. Roche Labs (2010 WL 3027726).  To date, no appellate court has ruled on the issue.

The Kansas District Court’s decision last month in Fally v. Friends Univ. (2011 WL 1429956) is representative of those decisions refusing to apply Twombly.  As its primary justification, the court noted that the burdens associated with pleading claims under Rule 8(a)(2) which provides for “a short and plain statement of the claim” should be read independent of Rule 8(c)(1) which only concern affirmative defenses:  

The differences between the Rule 8 requirements … are significant to the court. Under the plain language of Rule 8, a party making a claim for relief in a complaint must plead allegations showing that such party is entitled to relief. No such requirement appears in subsection (b) or (c) governing defenses. To the contrary, a responding party must state defenses in short and plain terms. Fed.R.Civ.P. 8(b)(1)(A). And, arguably, a responding party asserting affirmative defenses is required to do no more than “affirmatively state” such affirmative defense. 

Falley v. Friends Univ., CIV.A. 10-1423-CM, 2011 WL 1429956 (D. Kan. Apr. 14, 2011)

The court went on to find that Twombly’s higher standard — which requires that claims “raise a right to relief above the speculative level” — should apply only to claims assertion under 8(a) and has no relationship to subsection (b) or (c) — “where the pleading party bears no burden of showing an entitlement to relief.” 

To bolster its decision, the Falley court also concluded that maintaining higher pleading standard for complaints makes sense because plaintiffs may take years to investigate a complaint (limited only by the statute of limitations), but once the complaint is served, a defendant has only 21 days in which to serve an answer.  Accordingly, it makes better sense to require more factual description of a plaintiff than a defendant.  In addition, the court noted that applying the Twombly standards to answers would result in increased motion practice with little practical impact – defendants are often allowed leave to amend as a remedy. 

Conversely, courts finding Twombly applicable to affirmative defenses reason that the interpretation of Rule 8(a) in Twombly applies to all pleadings not just to complaints.  They also tend to find that the practical purposes underlying Twombly – the weeding out of unnecessary claims and the prevention of unnecessary costs – should apply equally to affirmative defenses.  Examples of this type of reasoning can be found in Shinew v. Wszola (2009 WL 1076279) and United States v. Quadrini (2007 WL 4303213).

Back in the day of notice pleading, bare-bones affirmative defenses were accepted practice.  Today, however, the lack of clarity among the courts on whether the Twombly standards extend to responsive pleadings, creates a bit of a conundrum for defense practitioners and for court houses.  If defense counsel files a thinly worded response believing an affirmative defense might apply, but they have not yet fully fleshed out evidence to support that defense, they now run the risk of inviting a 12(f) motion under Twombly (thus, creating work for the judge and clogging dockets).   On the other hand, it hardly seems fair to require defense counsel to come up with detailed defenses given short federal response times.  Certainly, in the days following the filing of a lawsuit, defendants often lack the factual information that would enable them to meet the higher pleading standard.

Until the appellate courts sound off on the issue, defense counsel should be aware the some district courts are inclined to hold the pleading of affirmative defenses to a higher standard and prepare their responses accordingly.

*   My search (below) in FED-FILING-ALL for the four years prior to Twombly, delivers just 730 motions and supporting memorandum seeking removal of affirmative defenses.  In the four years since Twombly, the Westlaw database contains  nearly double the number of filings – 1326.


 To pull primary law, try running a plain language search in WestlawNext for “application of twombly to affirmative defenses.”  The search will also pull up a growing body of secondary source materials addressing the topic.

[Editor’s Notes: A Word version of this post is available here: affirmativedefenses if you care to cite check this document.  While this document certainly does not purport to include a comprehensive list of the relevant case law, you might find updating this document with WestCheck helpful.  The web version of Westcheck is here:

For appeals, set up docket alerts using party names or, on occassion, try the the following search in the DOCK-CTA database:

ptn((Reimer and Case) (Tyco and Victaulic)  (Hayn and “Green Ford”) (Castillo and Roche) (Fally and Friends) (Shinew and Wszola) (Quadrini)) ]