An implausible standard for affirmative defenses.

• Author: Mayer, Stephen

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly's plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts' decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading to affirmative defenses by identifying several fundamental flaws in their appeals to tradition, policy, and the text of Rule 8. Due to misguided reliance on historical pleading practices, an imprecise reading of Twombly, and an overestimation of the availability of discovery for unpled or stricken affirmative defenses, these courts fail to recognize that extending plausibility pleading beyond the complaint imposes an asymmetrical and unfairly onerous burden on defendants. This Note concludes that the courts that extend Twombly to affirmative defenses do so in violation of both the canons of statutory construction and the principles of the Rules Enabling Act.

TABLE OF CONTENTS INTRODUCTION I. ANALYZING ARGUMENTS ON EITHER SIDE OF THE PLAUSIBILITY SPLIT A. Arguments for Extending Plausibility Pleading 1. Basic Fairness and Historical Precedent Necessitate the Application of Symmetrical Pleading Standards. 2. The Twombly Interpretation of Fair Notice Applies to Rule 8 Generally 3. Extending Plausibility Pleading to Affirmative Defenses Furthers the Policy Goals That Motivated Twombly and Iqbal B. Arguments Against Extending Plausibility Pleading 1. A Textual Analysis of Rule 8 and Twombly Does Not Support Application of Plausibility Pleading to Affirmative Defenses 2. Time Constraints Unfairly Burden Defendants' Pleading Plausibly II. A RESPONSE TO THE PLAUSIBILITY COURTS A. The Historical Precedent Fallacy B. The Fiction of a General "Fair Notice" Pleading Standard C. The Basic Fairness Argument Reimagined in a Discovery Context III. FREQUENTLY OVERLOOKED ARGUMENTS REINFORCING THE DECLINING COURTS' POSITION A. The Canons of Statutory Construction Indicate That Plausibility Pleading Does Not Apply to Affirmative Defenses B. Extending Twombly Beyond the Complaint Violates the Principles of the Rules Enabling Act CONCLUSION INTRODUCTION

More than one hundred federal cases have contemplated whether the plausibility standard outlined in Bell Atlantic Corp. v. Twombly (1) and Ashcroft v. Iqbal (2) applies to affirmative defenses, (3) yet the districts remain divided, and no court of appeals has yet addressed the issue. (4) This division stems from the fact that the Supreme Court's three most important interpretations of Rule 8 of the Federal Rules of Civil Procedure (5) have focused exclusively on Rule 8(a)(2), providing relative clarity in the pleading of complaints but no explicit guidance with regard to affirmative defenses.

For the fifty years leading up to Twombly, the federal courts relied on the liberal notice pleading standards outlined in Conley v. Gibson, (6) which held with reference to Rule 8(a)(2) that "all the Rules require is 'a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." (7) Conley directed "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." (8) When the Court reinterpreted Conley's "notice pleading" standard half a century later in Twombly, it once again focused exclusively on Rule 8(a)(2), (9) explaining that to "sho[w] the pleader is entitled to relief," (10) the plaintiff must plead sufficient factual matter to show a claim is "plausible on its face." (11) Two years later, when Iqbal made it clear that Twombly's plausibility standard extends "to all civil complaints," (12) the Court similarly restricted its holding to an interpretation of Rule 8(a)(2). (13)

While Twombly and Iqbal have given rise to a "deluge" (14) of academic commentary addressing the merits of plausibility pleading and the history of Rule 8 in general, (15) this Note addresses these cases solely as they relate to the pleading standard applicable to affirmative defenses. Conley, Twombly, and Iqbal do not mention Rule 8(c), which governs affirmative defenses. (16) All three decisions focus on the sufficiency of a complaint, as opposed to an answer or a defense, and the Court has never explicitly applied Twombly's plausibility standard to pleadings beyond the complaint in any other case. (17)

Despite the lack of direct guidance from the Court on whether to extend plausibility pleading beyond Rule 8(a)(2), many of the initial district court decisions on this issue "found that the heightened pleading standard announced in Twombly and Iqbal does apply to affirmative defenses." (18) The rationales outlined by both courts and scholars to justify such an extension have been exceptionally uniform. (19) This Note expands that discussion by exposing several flawed assumptions underlying courts' decisions to apply Twombly to affirmative defenses and by introducing several frequently overlooked arguments supporting the courts that have confined Twombly to the pleading of complaints.

Specifically, this Note argues that the Twombly and Iqbal decisions did not contemplate applying the plausibility standard to affirmative defenses, and absent additional developments in federal civil procedure, such an extension imposes an asymmetrical and unfairly onerous burden on defendants. Part I provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts' decisions. Part II responds to the courts that have applied plausibility pleading to affirmative defenses by identifying several fundamental flaws in their appeals to tradition, policy, and the text of Rule 8. Part III presents two frequently overlooked affirmative arguments in support of the rapidly growing number of courts that have declined to extend plausibility pleading beyond the complaint.

1. ANALYZING ARGUMENTS ON EITHER SIDE OF THE PLAUSIBILITY SPLIT

   The numerous district court opinions that have addressed whether plausibility pleading should be extended to affirmative defenses generally discuss four main issues: (1) whether fairness and historical precedent dictate that courts hold plaintiffs and defendants to the same pleading standard, (2) whether Twombly applies to Rule 8 as a whole or Rule 8(a) specifically, (3) whether the policy rationale motivating the Twombly and Iqbal decisions necessitates extending plausibility pleading to affirmative defenses, and (4) whether Rule 12(a)'s (20) twenty-one-day time limit for filing an answer unfairly prejudices defendants held to a plausibility standard. (21) This Note critiques several assumptions underlying these arguments in an attempt to reframe the debate over plausibility pleading's application to affirmative defenses. Consequently, an examination of the arguments themselves is necessary to provide context for Parts II and III. Section I.A addresses the arguments advanced by those in favor of extending plausibility pleading to affirmative defenses (the "plausibility courts"), while Section I.B addresses the arguments advanced by those opposed to such an extension (the "declining courts").

   1. Arguments for Extending Plausibility Pleading

      In the years immediately following Twombly and Iqbal, most of the district courts that considered affirmative defense pleading standards extended plausibility pleading from complaints to defenses, although that position has recently lost its majority status. (22) The district courts that extend plausibility pleading to affirmative defenses have nearly all advanced three principal arguments in support of their positions: (1) fairness indicates that Twombly's plausibility standard, like Conley's notice standard before it, should apply symmetrically to complaints and defenses; (2) Twombly reinterpreted notice pleading generally, equally affecting complaints under Rule 8(a), answers under Rule 8(b), and affirmative defenses under Rule 8(c); and (3) the policy concerns underlying the Twombly decision justify applying plausibility pleading to affirmative defenses. (23) This Section analyzes each of these arguments and identifies several key assumptions on which they rest.

      1. Basic Fairness and Historical Precedent Necessitate the Application of Symmetrical Pleading Standards

         Of all the arguments raised to justify extending plausibility pleading to affirmative defenses, the assertion that basic fairness requires courts to apply the same pleading standard to both plaintiffs and defendants is probably the most deeply entrenched in district court jurisprudence. Early cases considering affirmative defense pleading standards post-Twombly (24) cited this historically motivated argument, and the first major scholarly article on the subject noted its ubiquity. (25) The primary thrust of the argument is simple: since Rule 8's goal is to ensure fair notice to all litigating parties, it would make no sense to apply one pleading standard to plaintiffs and another to defendants--"what's good for the goose is good for the gander." (26) Courts support this simple proposition in two ways: they argue that (1) plaintiffs and defendants have historically shouldered the same burden under Rule 8's pleading standards and that (2) because Twombly's plausibility standard superseded the previous Conley standard, if plausibility pleading is not extended to affirmative defenses, courts will be unable to evaluate the sufficiency...