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February 27, 2019 Articles

No Heightened Pleading Required for Defenses

Published decisions in every circuit reject the application of TwIqbal to defenses.

By James M. Beck

Mass tort, and other, defendants often face motions to strike, or for a more definitive statement, against their pleaded defenses (not to call them “affirmative” defenses, which may erroneously implicate the burden of proof), contending that the pleading requirements of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009) (collectively “TwIqbal”), require greater factual detail. Such motions often annoy courts because “[t]here is nothing dumber than a motion to strike boilerplate affirmative defenses; it wastes the client’s money and the court’s time.” Raymond Weil, S.A. v. Theron, 585 F. Supp. 2d 473, 489–90 (S.D.N.Y. 2008).

They are also meritless because defenses, unlike affirmative claims, are not governed by Federal Rule of Civil Procedure 8(a)—the rule governing TwIqbal—they are governed instead by Federal Rule of Civil Procedure 8(c). Rule 8(c), governing “affirmative defenses,” requires only that the pleader “must affirmatively state any avoidance or affirmative defense,” with no requirement of any “showing.” The text of the rule should end the matter, but plaintiffs advance various extra-textual dodges, often amounting to little more than “because we have to obey TwIqbal, defendants should, too.”

TwIqbal explicitly govern “claims” and “causes of action,” not defenses:

[A] plaintiff’s obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.

Twombly, 550 U.S. at 555 (citations and quotation marks omitted).

Federal Rule of Civil Procedure 8(a)(2) . . . demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. . . . To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.

Iqbal, 556 U.S. at 677 (citations and quotation marks omitted).

Because Rule 8(c) simply requires defenses to be “affirmatively” stated, “an affirmative defense need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of [Rule 8] by its bare assertion.” In re Frescati Shipping Co., 886 F.3d 291, 313 (3d Cir. 2018) (citation and quotation marks omitted). “The Federal Rules of Civil Procedure do not require a heightened pleading standard for a . . . defense.” Montgomery v. Wyeth, 580 F.3d 455, 468 (6th Cir. 2009). “When [TwIqbal] restated the requirements of Fed. R. Civ.P. 8, the Justices did not revise the allocation of burdens concerning affirmative defenses; neither [decision] mentions affirmative defenses.” Davis v. Ind. State Police, 541 F.3d 760, 763–64 (7th Cir. 2008). “[T]he ‘fair notice’ required by the pleading standards only requires describing the defense in ‘general terms.’” Kohler v. Flava Enters., Inc., 779 F.3d 1016, 1019 (9th Cir. 2015).

Thus, case after case has held that TwIqbal does not apply to affirmative defenses. The prescription drug product liability decision Tsavaris v. Pfizer, Inc., 310 F.R.D. 678 (S.D. Fla. 2015), summarized the reasons typically offered for such holdings:

Courts offer at least three justifications for applying a less stringent standard to affirmative defenses. First, these courts maintain that the Twombly standard is rooted in Rule 8(a)’s “showing” requirement. . . . Second, relying on well-settled principles of statutory construction, courts applying a lower pleading standard to affirmative defenses maintain that if the drafters of Rule 8 had intended for the “showing” requirement to apply to the pleading of defenses, they knew how to say it, as demonstrated by Rule 8(a). . . . Lastly . . . , a lower pleading standard is consistent with binding case law. While the Eleventh Circuit has addressed affirmative defenses, it has not extended the pleading requirements of Rule 8(a) beyond claims. Rather, the appeals court has stressed that notice is the main purpose of Rule 8(c). . . .

Based on these rationales, this Court joins the growing number of courts in this circuit and others in finding that a lower pleading standard applies to affirmative defenses. Such an approach is faithful both to the letter and the spirit of Rules 8(b) and (c), as revealed through the plain language of Rule 8 and Eleventh Circuit precedent.

Id. at 681–82 (citations and quotation marks omitted).

A longer list—nine rationales—was relied on in Tardif v. City of New York, 302 F.R.D. 31 (S.D.N.Y. 2014), also rejecting the application of TwIqbal standards to defenses:

  1. textual differences between Rule 8(a), which requires that a plaintiff asserting a claim show entitlement to relief, and Rule 8(c), which requires only that the defendant state any defenses;
  2. a diminished concern that plaintiffs receive notice in light of their ability to obtain more information during discovery;
  3. the absence of a concern that the defense is “unlocking the doors of discovery”;
  4. the limited discovery costs . . . , since it is unlikely that either side will pursue discovery on frivolous defenses;
  5. the unfairness of holding the defendant to the same pleading standard as the plaintiff, when the defendant has only a limited time to respond . . . while plaintiff has until the expiration of the statute of limitations;
  6. the low likelihood that motions to strike affirmative defenses would expedite the litigation . . . [;]
  7. the risk that a defendant will waive a defense at trial by failing to plead it at the early stage of the litigation;
  8. the lack of detail in Form 30, which demonstrates the appropriate pleading of an affirmative defense; and
  9. the fact that a heightened pleading requirement would produce more motions to strike, which are disfavored.

Id. at 33–34 (citations and quotation marks omitted).

Published decisions in every circuit reject the application of TwIqbal to defenses.

First Circuit

Vazquez-Robles v. CommoLoco, Inc., 186 F. Supp. 3d 138, 149 (D.P.R. 2016) (TwIqbal “do[es] not apply to affirmative defenses”); Hansen v. Rhode Island’s Only 24 Hour Truck & Auto Plaza, Inc., 287 F.R.D. 119, 123 (D. Mass. 2012) (“declin[ing] to apply the heightened pleading standard to defendants’ affirmative defense”).

Second Circuit

Leviton Manufacturing Co. v. Pass & Seymour, Inc., 264 F. Supp. 3d 421, 427 (E.D.N.Y. 2017) (“The overwhelming majority view . . . is that the concept of plausibility has no application to affirmative defenses.”); Sibley v. Choice Hotels International, Inc., 304 F.R.D. 125, 133 (E.D.N.Y. 2015) (“[A] defendant must only ‘affirmatively state’ an affirmative defense . . . and need not meet the [TwIqbal] plausibility standard.”); Serby v. First Alert, Inc., 934 F. Supp. 2d 506, 516 (E.D.N.Y. 2013) (“no requirement under Rule 8(c) that a defendant plead any facts at all”).

Third Circuit

Gross v. Weinstein, Weinburg & Fox, LLC, 123 F. Supp. 3d 575, 582–83 (D. Del. 2015) (declining to apply TwIqbal to affirmative defenses); Mifflinburg Telegraph, Inc. v. Criswell, 80 F. Supp. 3d 566, 574 (M.D. Pa. 2015) (“‘stating’ an affirmative defense provides ‘fair notice’ without specific factual allegations”); Newborn Brothers Co. v. Albion Engineering Co., 299 F.R.D. 90, 97 (D.N.J. 2014) (“the heightened [TwIqbal] standard is not applicable to the pleading of affirmative defenses under Rule 8(c)”); Senju Pharmaceutical Co. v. Apotex, Inc., 921 F. Supp. 2d 297, 303 (D. Del. 2013) (“Due to the differences between Rules 8(a) and 8(c) . . . , [TwIqbal] do not apply to affirmative defenses”); XpertUniverse, Inc. v. Cisco Systems, Inc., 868 F. Supp. 2d 376, 383 n.3 (D. Del. 2012) (“the majority of the District Courts in the Third Circuit have rejected the application of [TwIqbal] to defensive pleadings”; “[plaintiff] has failed to convince this Court that [TwIqbal] apply to . . . defensive pleadings”); Tyco Fire Products LP v. Victaulic Co., 777 F. Supp. 2d 893, 900–1 (E.D. Pa. 2011) (“An affirmative defense need not be plausible to survive; it must merely provide fair notice of the issue involved.”).

Fourth Circuit

Baron v. DIRECTV, LLC, 233 F. Supp. 3d 441, 444 (D. Md. 2017) (“a defendant’s affirmative defenses need not be pleaded according to the [TwIqbal] standard”); LBCMT 2007-C3 Urbana Pike, LLC v. Sheppard, 302 F.R.D. 385, 387 (D. Md. 2014) (“A plaintiff's complaint invokes the jurisdiction of the court and seeks affirmative relief. An affirmative defense does neither.”); Lockheed Martin Corp. v. United States, 973 F. Supp. 2d 591, 593–95 (D. Md. 2013) (“the Court declines to hold that [TwIqbal] apply to affirmative defenses”); Guessford v. Pennsylvania National Mutual Casualty Insurance Co., 918 F. Supp. 2d 453, 468 (M.D.N.C. 2013) (“the Court will follow the language of the Federal Rules of Civil Procedure . . . , which requires only that a party ‘affirmatively state any avoidance or affirmative defense’”); Odyssey Imaging, LLC v. Cardiology Assocs., LLC, 752 F. Supp. 2d 721, 725–26 (W.D. Va. 2010) (“Rules 8(b) and 8(c) do not require a court to subject defenses pleaded by a defendant to the same stringent plausibility standards that [TwIqbal] demand of claims for relief under Rule 8(a).”).

Fifth Circuit

Blount v. Johnson Controls, Inc., 2018 WL 4224465, at *2–3 (S.D. Miss. Sept. 5, 2018) (“The text of Rules 8(a), (b), and (c) reflects clear differences with respect to the purposes of complaints and responsive pleadings and the showings they require.”); United States ex rel. Parikh v. Citizens Medical Center, 302 F.R.D. 416, 418–19 (S.D. Tex. 2014) (“[T]he traditional fair notice standard, without the [TwIqbal] gloss, applies to an affirmative defense.”); Deniece Design, LLC v. Braun, 953 F. Supp. 2d 765, 776 (S.D. Tex. 2013) (“[TwIqbal] do not apply to the pleading of” various affirmative defenses); EEOC v. Rock-Tenn Services Co., 901 F. Supp. 2d 810, 832 (N.D. Tex. 2012) (declining to apply the plausibility standard found in TwIqbal to affirmative defenses); SEC v. Cuban, 798 F. Supp. 2d 783, 795 n.13 (N.D. Tex. 2011) (“this court has declined so far to apply the plausibility standard to affirmative defenses”).

Sixth Circuit

Martin v. Trott Law, P.C., 265 F. Supp. 3d 731, 737 (E.D. Mich. 2017) (TwIqbal “generally do not apply to pleading affirmative defenses”); Pidcock v. Schwab, 569 B.R. 463, 480 (N.D. Ohio 2017) (“follow[ing] the majority approach in finding that the [TwIqbal] pleading requirements do not apply to affirmative defenses”).

Seventh Circuit

Ayotte v. Boeing Co., 316 F. Supp. 3d 1066, 1076 (N.D. Ill. 2018) (“an affirmative defense need not be plausible to survive, and must merely provide fair notice of the issue involved”); Hancock v. Illinois Central Sweeping LLC, 73 F. Supp. 3d 932, 942 (N.D. Ill. 2014) (“[a]n affirmative defense may be pleaded in general terms”).

Eighth Circuit

Wilkinson v. High Plains Inc., 297 F. Supp. 3d 988, 993 (D.N.D. 2018) (“an affirmative defense . . . need not be articulated with any rigorous degree of specificity, and is sufficiently raised for purposes of Rule 8 by its bare assertion”); Arbogast v. Healthcare Revenue Recovery Group, 327 F.R.D. 267, 270 (E.D. Mo. 2018) (“the pleading standards articulated in [TwIqbal] do not apply to affirmative defenses”); Summers Manufacturing Co. v. Tri-County AG, LLC, 300 F. Supp. 3d 1025, 1044 (S.D. Iowa 2017) (“the Court agrees with the analysis of fellow district courts . . . and finds the plausibility standard inapplicable to affirmative defenses”); Infogroup, Inc. v. DatabaseLLC, 95 F. Supp. 3d 1170, 1193 (D. Neb. 2015) (“while defenses must be asserted in a responsive pleading, they need not be articulated with any rigorous degree of specificity, and may be sufficiently raised for purposes of Rule 8 by their bare assertion”); FDIC v. Dosland, 298 F.R.D. 388, 393–94 (N.D. Iowa 2013) (“I decline the [plaintiff’s] invitation to require the pleading of affirmative defenses to the [TwIqbal] ‘plausibility’ pleading standard”); Strauss v. Centennial Precious Metals, Inc., 291 F.R.D. 338, 343 (D. Neb. 2013) (“[TwIqbal] pleading standard [is] inapplicable to those affirmative defenses”); Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051 (D. Minn. 2010) (“[TwIqbal] do not apply to the pleading of affirmative defenses.”); Fleishour v. Stewart Title Guaranty Co., 640 F. Supp. 2d 1088, 1090 (E.D. Mo. 2009) (“the pleading requirements . . . simply do not require a statement of the facts necessary to support the defense”).

Ninth Circuit

Rosen v. Masterpiece Marketing Group, LLC, 222 F. Supp. 3d 793, 802 (C.D. Cal. 2016) (“Requiring defendants to satisfy the [TwIqbal] pleading standard . . . neither accords with the language of Rules 8(c) and 12(f), nor appears just as a matter of policy.”); Gomez v. J. Jacobo Farm Labor Contractor, Inc., 188 F. Supp. 3d 986, 991–92 (E.D. Cal. 2016) (“This Court will not apply [TwIqbal] to determining the sufficiency of affirmative defenses.”); ESCO Corp. v. Cashman Equipment Co., 158 F. Supp. 3d 1051, 1058 (D. Nev. 2016) (“The standard for properly pleading an affirmative defense does not rise to the same level of pleading a cause of action.”); Rockwell Automation, Inc. v. Beckhoff Automation, LLC, 23 F. Supp. 3d 1236, 1242 (D. Nev. 2014) (“because of the difference in language between Rules 8(a) and 8(c), the Court will leave it to the appellate courts to institute something like a plausibility standard for Rule 8(c)”); Weintraub v. Law Office of Patenaude & Felix, A.P.C., 299 F.R.D. 661, 665 (S.D. Cal. 2014) (“Stating an affirmative defense under Rule 8(c), however, does not require the pleader to ‘show’ entitlement to its defense.”); Polk v. Legal Recovery Law Offices, 291 F.R.D. 485, 490 (S.D. Cal. 2013) (“Applying the same standard of pleading to claims and affirmative defenses . . . would run counter to the Supreme Court’s warning in Twombly that legislative action, not ‘judicial interpretation,’ is necessary to ‘broaden the scope’ of specific federal pleading standards.); Roe v. City of San Diego, 289 F.R.D. 604, 609 (S.D. Cal. 2013) (“the Supreme Court’s analysis in [TwIqbal] is limited to pleadings under [Rule] 8(a)(2)”).

Tenth Circuit

Martinez v. Naranjo, 2018 WL 5635112, at *12 (D.N.M. Oct. 31, 2018) (“defenses need not meet the heightened pleading requirements for complaints”); Fuller v. Finley Resources, Inc., 176 F. Supp. 3d 1263, 1266 (D.N.M. 2016) (“declin[ing] to extend the heightened pleading standard established in [TwIqbal] to affirmative defenses”); Sharp v. CGG Land (U.S.) Inc., 141 F. Supp. 3d 1169, 1176 (N.D. Okla. 2015) (“recitation of the specific affirmative defenses that may be applicable is sufficient to serve this [notice] purpose”), aff’d, 840 F.3d 1211 (10th Cir. 2016); Wells v. Hi Country Auto Group, 982 F. Supp. 2d 1261, 1264 (D.N.M. 2013) (“the [TwIqbal] pleading standard does not apply to affirmative defenses”); Falley v. Friends University, 787 F. Supp. 2d 1255, 1259 (D. Kan. 2011) (“Applying the Twombly standard, therefore, would likely result in increased motions practice with little practical impact on the case’s forward progression.”); Lane v. Page, 272 F.R.D. 581, 591 (D.N.M. 2011) (“[n]either the text of the rules nor the Supreme Court’s decisions in [TwIqbal] require the Court to extend the pleading standard from those cases to affirmative defenses”).

Eleventh Circuit

Luxottica Group, S.p.A. v. Airport Mini Mall, LLC, 186 F. Supp. 3d 1370, 1374 n.1 (N.D. Ga. 2016) (“declin[ing] to extend the pleading requirements of Twombly to affirmative defenses”); Tomason v. Stanley, 297 F.R.D. 541, 544–45 (S.D. Ga. 2014) (“declin[ing] to import Twombly’s heightened pleading standard into the Rule 8(c) arena”); Weekes-Walker v. Macon County Greyhound Park, Inc., 877 F. Supp. 2d 1192, 1211–12 (M.D. Ala. 2012) (“plausibility pleading standards of [TwIqbal] do not apply to affirmative defenses”); EEOC v. Joe Ryan Enterprises, Inc., 281 F.R.D. 660, 662–64 (M.D. Ala. 2012) (“[TwIqbal] do not apply to the pleading of affirmative defenses”); Jackson v. City of Centreville, 269 F.R.D. 661, 662–63 (N.D. Ala. 2010) (“this Court does not agree . . . that heightened pleading standards apply to affirmative defenses”); Bartronics, Inc. v. Power-One, Inc., 245 F.R.D. 532, 537 n.5 (S.D. Ala. 2007) (“Nothing in [Twombly] would appear to require more detailed pleading of affirmative defenses.”).

District of Columbia Circuit

Moore v. United States, 318 F. Supp. 3d 188, 193 (D.D.C. 2018) (TwIqbal “do[es] not apply to affirmative defenses”); Paleteria La Michoacana v. Productos Lacteos, 905 F. Supp. 2d 189, 190–93 (D.D.C. 2012) (“Imposing the plausibility requirement to affirmative defenses would be a sea change for this court’s practitioners; absent any compelling need for such a change, the court will leave Rule 8(c) undisturbed.”).


These are only the opinions on TwIqbal and defenses that have found their way into the Federal Supplement and the Federal Rules Decisions. There are probably 10 times as many unpublished decisions, so this article should be only the start for research by defendants faced with meritless TwIqbal motions directed against their pleaded defenses.

James M. Beck is a senior life sciences policy analyst at Reed Smith LLP in Philadelphia, Pennsylvania.

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