Courts Split on Applying Twombly and Iqbal to Affirmative Defenses

As previously discussed on this blog, the repercussions of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), continue.  These cases established a “plausibility standard” for pleadings referred to as the Iqbal-Twombly standard.  At first, this standard was limited to complaints, but more recently, courts have begun to apply the standard to affirmative defenses.

NKU law professor Richard A. Bales and 2011 Chase graduate, Melanie A. Goff, recently published an insightful analysis of how courts across the country are dealing with Iqbal-Twombly as the standard relates to affirmative defenses.  The article Goff & Bales, A “Plausible” Defense:  Applying Twombly and Iqbal to Affirmative Defenses, Am. J. Trial Advoc., 34, No. 3 (2011) is available here:

The authors provide a concise analysis of the history of notice pleading and the evolution of the Iqbal-Twombly standard.  They then review key cases from various federal circuits that have either adopted or rejected the application of the Iqbal-Twombly standard to affirmative defenses.

Immediately relevant to Ohio and Kentucky practitioners is the authors’ analysis of McLemore v. Regions Bank, 2010 WL 1010092 (M.D. Tenn, March 18, 2010).  Id. at *23.  This district court case out of the Sixth Circuit found that the Iqbal-Twombly standard did not apply to affirmative defenses.  The key holding of the McLemore court was that Rule 8(a)(2) related to complaints and not answers because the rule required only “a short and plain statement of the claim showing that the pleader is entitled to relief.”  McLemore, 2010 WL 1010092 at *12 (citing Twombly, 550 U.S. at 555); Goff & Bales, supra at 25. 

As outlined in the article, however, many courts have applied Iqbal-Twombly to pleading affirmative defenses.  The authors conclude their analysis by suggesting that the federal courts should adopt the Iqbal-Twombly standard for all parties to the litigation.  Goff & Bales, supra at 32.  The authors contend that this will:  (1) “ensure efficiency and fairness,” (2) avoid confusion by applying the same standard to all parties, and (3) help parties tailor discovery by including factual allegations as a part of the affirmative defense.  Id.

Whatever side of the argument you take, this article provides a helpful foundation for any practitioner faced with this issue.

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