Fending off the use of a Rule 12(f) motion to strike affirmative defenses.

• Author: Durney, Peter M.

THIS ARTICLE addresses potentially effective arguments a defendant may raise when confronted with a motion to strike affirmative defenses based upon the Supreme Court's decisions in Bell Atlantic Co. v. Twombly (1) and Ashcroft v. Iqbal. (2) As most litigators by now know, in Twombly, the Supreme Court held that in order to withstand a motion to dismiss, a plaintiff must plead sufficient facts in a complaint to allege "a plausible entitlement to relief." (3) Plaintiffs have since argued, with some success, that this heightened pleading standard applies with equal force to a defendant's affirmative defenses. Facing such a motion early on in litigation can present myriad problems for a defendant. Upon being properly served with a Summons and Complaint, without the benefit of discovery and with only twenty-one days to file an answer in federal court, defendants to a large extent must anticipate the proof and raise appropriate defenses in somewhat of a vacuum. Yet, should an aggressive opponent immediately challenge some of those defenses, the very real prospect looms of possibly losing otherwise valid affirmative defenses, should an offense motion be successful. This article discusses the various rationales used by federal district courts in deciding such motions and considers how a defendant may best fend off such an attack to ensure that its affirmative defenses are preserved at least until adjudicated on the merits.

1. The Heightened Pleading Standard under Twombly/Iqbal

   In Twombly, the Supreme Court considered the pleading standard sufficient to satisfy the requirement that a plaintiff make "a short and plain statement of the claim that the pleader is entitled to relief." (4) The Supreme Court held that in order to survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a plaintiff must plead sufficient facts "to raise a right to relief above the speculative level." (5) This standard "requires more than labels and conclusions," such that "a formulaic recitation of the elements of a cause of action will not do." (6) Thus, the Twombly court expressly retired the long established standard established set forth in Conley v. Gibson, (7) which held that a pleading should not be dismissed "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)

   The new heightened pleading standard subsequently was clarified in Iqbal, as the Supreme Court reiterated that a plaintiff's "complaint must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" (9) The Iqbal court further outlined the two underlying principles of Twombly. First, in evaluating the sufficiency of a complaint, bare legal conclusions that do nothing more than recite the elements of a cause of action are not entitled to an assumption of truth. (10) Second, a complaint must contain sufficient factual allegations to allow a court to infer that it states a "plausible claim for relief." (11) Courts considering a motion to dismiss were thereby directed to engage in a two-pronged analysis: (1) to identify legal conclusions that are not entitled to an assumption of truth; and (2) to identify factual allegations and determine if, taken as true, "they plausibly give rise to an entitlement to relief." (12) The Circuit Courts of Appeal have not ruled on whether the heightened pleading standard of Twombly/Iqbal applies to the pleading of affirmative defenses, and there is fairly even disagreement between, and even within, the United States district courts. (13)

2. Affirmative Defenses

   Federal Rule of Civil Procedure 8(b)(1)(A) requires a party responding to a pleading to "state in short and plain terms its defenses to each claim asserted against it." (14) Rule 8(c)(1) states that a defendant "must affirmatively state any avoidance or affirmative defense," and provides a list of nineteen affirmative defenses. (15) However, this list of affirmative defenses "is not intended to be exhaustive." (16)

   "Affirmative defenses plead matters extraneous to the plaintiffs prima facie case, which deny plaintiffs right to recover, even if the allegations of the complaint are true." (17) The burden of proving an affirmative defense rests with the party asserting it. (18) Such a defense must be proven by a preponderance of credible evidence. (19) If proven by a preponderance of the evidence, "[a]n affirmative defense will defeat the plaintiff's claim." (20) Federal courts have consistently held that the failure by a defendant to plead an affirmative defense in their answer generally results in waiver and exclusion from the action. (21)

   Rule 12(f) of the Federal Rules of Civil Procedure permits a party, or the court acting sua sponte, to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." This provides a mechanism to "'clean up the pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.'" (22)

3. Traditional Standard of Review

   Traditionally, courts applied Conley's "no set of facts" standard to pleadings that were challenged by a Rule 12(b)(6) or Rule 12(1) motion. Under that standard, an affirmative defense was held valid as long as it provided "fair notice" to the plaintiff of the defense. (23) Thus, an affirmative defense was generally immune from a motion to strike "unless it appear[ed] with certainty that plaintiffs would succeed despite any state of facts which could be proved in support of the defenses." (24)

   Even when there were no disputed questions of fact or law, courts often were reluctant to strike an affirmative defense from an action when no discovery yet had taken place. As the First Circuit Court of Appeals noted in Salcer, "even when the defense presents a purely legal question, the courts are very reluctant to determine disputed or substantial issues of law on a motion to strike; these questions quite properly are viewed as determinable only after discovery and a hearing on the merits." (25)

   In that same vein, when considering a motion to strike an affirmative defense, courts would consider whether the defense was "legally sufficient under any set of facts which may be inferred from the allegations of the pleading." (26) Generally, courts would only grant a motion to strike an affirmative defense under Rule 12(f) upon a finding that (1) there was no question of fact or law that might allow the challenged defense to succeed; (2) under no set of circumstances could the defense succeed, regardless of what evidence could be marshaled to support it; and (3) prejudice would result from the defense remaining in the case. (27)

   Given the low bar set by the "no set of facts" standard of Conley v. Gibson, rarely were plaintiffs inclined to file motions to strike affirmative defenses. At the same time, wary of waiver, defense counsel would routinely draft long lists of affirmative defenses in their responsive pleadings, often in "boiler plate" fashion. Historically, courts would generally accept this practice. (28) In short, there was a general acceptance of the status quo. Not so after Twombly and Iqbal, when suddenly plaintiffs began to ask courts to apply the heightened pleading standard to affirmative defenses, creating "a frenzy of district court opinions reexamining this position." (29) Alas, some federal district courts have been receptive to plaintiffs' position, which should be a "wake-up" call for the astute practitioner.

4. Rationales of District Courts That Have Applied the Heightened Pleading Standard to Affirmative Defenses

   Federal district courts applying the heightened pleading standard of Twombly/Iqbal to affirmative defenses have justified doing so on a number of grounds, including (1) fairness to the parties; (2) a textual reading of the Federal Rules of Civil Procedure; and (3) efficiency and judicial economy. (30) We take those grounds one at a time.

   (1) Fairness to the Parties

   In essence, this simplistic rationale is based upon common sense. Some courts have stated that it would be inequitable to hold plaintiffs to a higher pleading standard than defendants. Such a rationale arguably is grounded in Twombly's acknowledgment of "the need for fair notice" in a plaintiff's Complaint, and that such a concern should be equally applied to defendants. (31) The reasoning is simple. Just as a defendant faced with a factually deficient Complaint, a plaintiff should not have to respond to defenses that lack factual support. (32)

   In U.S. v. Quadrini, the district court reasoned that the same pleading standards must apply to defendants and plaintiffs "otherwise a court could not make a Rule 12(f) determination on whether an affirmative defense is adequately pleaded under Rules 8 and/or 9 and could not determine whether the affirmative defense would withstand a Rule 12(b)(6) challenge." (33) Accordingly, "[l]ike the plaintiff, a defendant also must plead sufficient facts to demonstrate a plausible affirmative defense, or one that has a 'reasonably founded hope' of success." (34)

   (2) Textual Consistency

   Application of the same pleading standard to defendants and plaintiffs, alike, is also found by a textual comparison of the relevant pleading rules. Courts using the textual approach reason that because both Rule 8(a)(2) and Rule 8(b) of the Federal Rules of Civil Procedure require a "short and plain" statement in the pleading of claims and affirmative defenses, it follows that both plaintiffs and defendants must plead sufficient facts to put the other side on notice of the basis of their defenses and claims. (35) Such an approach requires a defendant to plead sufficient facts in support of its defenses as "both its nonconclusory factual content and the reasonable inferences from that content, must plausibly suggest a cognizable defense available to the defendant." (36)

   For example, in Aguilar v. City Lights...