By Paul L. Leclair
The Daily Record Newswire
While drafting answers to a complaint, identifying affirmative defenses often has been nothing more than a brainstorming session and a quick run through pleadings forms to be sure that you included all those that may apply.
Federal practice has been changing pleading requirements recently, however, and boiler plate affirmative defenses now may have limited value in federal practice.
My colleague John Nutter recently discussed the new requirements for pleading claims set forth in two U.S. Supreme Court decisions, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Simply put, Twombly-Iqbal requires that a claim must set forth sufficient factual information to be plausible on its face, and rejects conclusory claims unsupported by facts.
The old standard from the 1957 U.S. Supreme Court decision in Conley v. Gibson, 355 U.S. 41 (1957), was abrogated by Twombly. Conley merely required that a claimant plead the essential legal elements of a claim and, under that standard, courts were not permitted to dismiss a claim unless there were “no set of facts” that a claimant could prove to support the claim. Conley, 355 U.S. at 45-47.
While the Twombly-Iqbal standard applies to pleading claims, what of affirmative defenses? In the Western District of New York, there appears to be only one decision, authored by Magistrate Judge
Marian Payson. In that case, involving an employee’s claim of overtime wages, the court applied the Twombly-Iqbal standard and struck affirmative defenses of laches, statute of limitations, estoppel, unclean hands, waiver and acquiescence. The court held that the affirmative defenses were asserted in conclusory fashion without any allegations of fact, ran afoul of Twombly-Iqbal and, therefore, struck the defenses. Tracy v. NVR Inc., 2009 WL 3153150 (W.D.N.Y. 2009).
Tracy identifies several other district court decisions that applied the Twombly-Iqbal standard to affirmative defenses, and that appears to be the majority view among district courts. See e.g. Aspex Eyewear Inc. v. Clariti Eyewear Inc., 531 F.Supp.2d 620 (S.D.N.Y. 2008). There does not yet appear to be a federal court of appeals decision on point.
The reasoning of the majority view tends to be that, under Twombly-Iqbal, the Federal Rule of Civil Procedure 8 standards for all pleadings should be similar and even handed. Accordingly, all pleadings now must provide the opposing party sufficient notice of the factual basis for an assertion, such that the assertion is plausible and not merely the suggestion of a possibility. Hayne v. Green Ford Sales Inc., 263 F.R.D. 647 (D.Kansas 2009).
Of the 94 U.S. District Courts, 13 have rendered decisions adopting the majority view, but there is a minority view, adopted by six district courts, that refuses to apply the Twombly-Iqbal standard to affirmative defenses. See Francisco v. Verizon South Inc., 2010 WL 2990159 (E.D.Va. 2010) (adopting majority view, but acknowledging those districts that have adopted the minority view).
That minority view maintains that Twombly-Iqbal only construes FRCP 8(a), which addresses “claims for relief,” while subsections 8(b) and 8(c) are the provisions that address defenses and affirmative defenses, respectively. FRCP 8(a) provides that claims for relief must “contain ... a short and plain statement of the claim showing that the pleader is entitled to relief.” FRCP 8(a).
The Twombly-Iqbal standard construes the operative verb “showing” to mean that the facts alleged must “show” the assertion is plausible.
The minority view maintains that FRCP provisions 8(b) and (c), addressing defenses, do not have a “showing” requirement because the verb is not used in either subdivision of Rule 8. Thus, subsections 8(b) and (c) require only that the pleader “state” in short and plain terms its defenses. Without the “showing” requirement applicable to “claims for relief,” the minority view posits that Twombly-Iqbal’s plausibility standard does not control the pleading of affirmative defenses. See Francisco v. Verizon South Inc., 2010 WL 2990159 at *6.
The alternate views both have merit. While the majority view seems easier to apply since the same standard controls all pleadings, the premise of the standard, Rule 8(a), does not control the pleading of defenses, giving hope to those who need to count on the minority view.
While the safer practice, especially in the Western District, now appears to be to plead essential facts to support a party’s affirmative defenses and render them plausible, there are as yet no federal courts of appeals decisions rejecting the minority view. Of course, there may be circumstances when pleading facts in support of an affirmative defense simply is not possible, and the breadth of Twombly-Iqbal once again will be put to the test in litigation’s crucible.
Paul L. Leclair is a partner in the Rochester, New York, law firm of Leclair Korona Giordano Cole LLP, where he concentrates his practice in civil litigation with an emphasis on business/commercial, construction and personal injury matters.
