There is a split of authority on whether the heightened pleading standards articulated in Twombly and Iqbal apply to affirmative defenses. In two recent decisions, district courts in New Jersey and Pennsylvania have declined to extend the reach of Twombly and Iqbal to affirmative defenses pled pursuant to Federal Rule of Civil Procedure 8(c).
In Federal Trade Commission v. Hope Now Modifications, LLC, et al., Civ. No. 09-1204 (D.N.J. Mar. 10, 2011) the Federal Trade Commission (FTC) brought suit against various defendants who were affiliated with a mortgage-modification corporation. The FTC subsequently moved to strike various affirmative defenses that were pled by one group of defendants. The pleading at issue merely listed the affirmative defenses that were being asserted, without alleging any facts upon which the defenses were based. The FTC argued, among other things, that each of the listed affirmative defenses should be struck because the defenses did not meet the pleading requirements set forth in Twombly and Iqbal.
In denying the FTC’s motion, Judge Jerome B. Simandle (D.N.J.) noted that the issue was one of first impression in the District of New Jersey and that no Federal Circuit Court had yet considered whether to extend the pleading requirements of Twombly and Iqbal to affirmative defenses. However, two other district courts in the Third Circuit had previously addressed the issue and concluded that the pleading standards articulated in Twombly and Iqbal do not extend to affirmative defenses. See, e.g., Charleswell v. Chase Manhattan Bank, N.A., Civ. No. 01-119(D.V.I. Dec. 8, 2009)and Romantine v. CH2M Hill Engineers, Inc., Civ. No. 09-973 (W.D. Pa. Oct. 23, 2009).