Plausibility beyond the complaint.

Author:Seiner, Joseph A.


In Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Supreme Court announced a new plausibility standard for a plaintiff's allegations. The decisions may have even broader implications, however, as many federal district courts have already applied this pleading standard to a defendant's affirmative defenses. This Article makes sense of Twombly and Iqbal in the context of the affirmative defense.

This Article addresses the two possible readings of Twombly and Iqbal: first, that the decisions are limited to a plaintiff's civil complaint, and second, that a defendant must also comply with the Supreme Court's plausibility standard by pleading enough facts to sufficiently state an affirmative defense. This Article explains why a close textual review of the Federal Rules of Civil Procedure, combined with numerous policy and practical considerations, support the broader second reading of the Supreme Court's decisions.

What it actually means to plausibly plead an affirmative defense is a much more complicated question. This Article closely examines this issue through the lens of one of the most complex and important defenses in all civil case law--the affirmative defense to a claim of sexual harassment. By way of this example, this Article explains how the plausibility standard would apply more broadly to defendants in all civil cases. The question whether the plausibility standard should apply to defendants--and if so, how it should apply--is likely to create significant controversy in the coming years. This Article establishes a foundation for that discussion.

TABLE OF CONTENTS INTRODUCTION I. TWOMBLY, IQBAL & THE FEDERAL RULES OF CIVIL PROCEDURE II. PLAUSIBILITY BEYOND THE COMPLAINT A. The Complaint-Only Reading B. The All-Pleadings Approach III. AN EXAMPLE OF THE ALL-PLEADINGS APPROACH: THE EMPLOYER'S AFFIRMATIVE DEFENSE TO SEXUAL HARASSMENT A. The Faragher-Ellerth Defense to Sexual Harassment B. The All-Pleadings Approach C. Summary of the All-Pleadings Approach D. The Complaint-Only Reading IV. IMPLICATIONS OF THE ALL-PLEADINGS APPROACH FOR ALL CIVIL CASES CONCLUSION "What's good for the goose is good for the gander." (1)


Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal (3) herald a new pleading standard not only for plaintiffs but perhaps for defendants as well. In these recent Supreme Court decisions, the Court announced a new standard for evaluating a plaintiff's allegations-that is, a complaint now must set forth enough facts to give rise to a plausible claim to relief. The Court left unanswered, however, whether this plausibility standard should also apply to a defendant's affirmative defenses. This Article makes sense of Twombly and Iqbal in the context of a defendant's responsive pleadings.

Simply put, there are two possible readings of Twombly and Iqbal for the affirmative defense. (4) The first reading concludes that these decisions apply only to a plaintiff's complaint and should not be extended to a defendant's pleadings. (5) Supporters of this complaint-only approach point to the fact that the recent Supreme Court decisions make no reference to a defendant's pleadings and are easily distinguishable on this basis. (6) Additionally, whereas plaintiffs typically have many months or years to investigate and file their claims, defendants must respond to a federal complaint within twenty-one days. (7) As a result, it is a fair reading of Twombly and Iqbal--as well as a sensible application of the Federal Rules of Civil Procedure--to conclude that the plausibility standard should not be extended beyond the complaint.

This Article explains why this reading should fail in favor of a second approach--applying the Twombly and Iqbal standard more broadly to all civil pleadings. This approach would require a defendant to plead enough facts to give rise to a plausible affirmative defense. (8) This all-pleadings interpretation of the Supreme Court's decisions is well supported by a close textual review of the Federal Rules of Civil Procedure. (9) Beyond this textual reading, however, a number of policy considerations support the all-pleadings approach. Indeed, the basic reasoning that led the Court to develop the plausibility standard for allegations in a complaint applies equally to the affirmative defense. (10) In particular, the Twombly and Iqbal decisions expressed significant concern over the costs of implausible litigation on defendants. (11) These costs run both ways, and a frivolous affirmative defense could prove quite expensive for plaintiffs to debunk, because they would be forced to test the merits of the defendant's implausible claim in discovery. (12)

In announcing the plausibility standard the Court also raised issues of basic fairness to defendants. (13) According to the Court, it is unfair to provide a defendant with insufficient notice of a claim and to simply assert pure legal conclusions in the complaint. (14) These fairness concerns apply equally to plaintiffs, who should similarly be entitled to notice of the basic facts related to any affirmative defense. Fairness in pleading should be symmetric, and both parties should be held to the same principles. Indeed, in the past, the courts have treated the motion to dismiss a complaint and the motion to strike an affirmative defense under an identical standard. (15) We should therefore not create a new asymmetry in pleading standards following the recent Supreme Court decisions.

Practical considerations further support applying the plausibility standard to affirmative defenses. A plaintiff that is provided with basic factual information about a defense can more fully investigate and research the defendant's claim. This will result in more stream lined discovery, as the plaintiff will more narrowly tailor discovery requests to the specifics of the particular defense. (16) The short time frame defendants have to respond to a complaint and assert their defenses should typically not be problematic, as defendants will often possess all of the information necessary to support their defenses. (17) And when additional facts are uncovered during discovery, the courts should liberally allow defendants to amend their pleadings. (18) Finally, as demonstrated in this Article, satisfying the plausibility standard will typically be an easy endeavor for defendants. (19) A simple sentence or short paragraph will often suffice, though there may be some instances in which defendants have more difficulty proceeding under this standard.

Textual, policy, and practical considerations all support applying the plausibility standard to a defendant's responsive pleading. In practice, however, what plausibly pleading an affirmative defense actually means is a much more difficult question. This Article attempts to bring clarity to this issue by way of example and examines the contours of one specific affirmative defense--an employer's defense to a hostile work environment claim. (20) This Article examines this particular defense as employment discrimination cases--and civil rights claims more broadly--have been one of the areas most affected by the Twombly and Iqbal decisions. (21) Given the difficulty plaintiffs have faced in the courts in satisfying the plausibility standard for workplace claims, it stands to reason that a defendant could confront similar problems when articulating an affirmative defense in this same context. This Article thus explores what the plausibility requirement for defendants would look like in one of the most critical and complex areas of employment discrimination law. By examining one important defense, this Article explains how the plausibility standard would apply more broadly to affirmative defenses in all civil cases.

In Part I, this Article sets forth the relevant provisions of the Federal Rules of Civil Procedure and briefly summarizes the Twombly and Iqbal decisions, which established the plausibility standard. In Part II, this Article explores the two possible readings of these recent Supreme Court decisions for affirmative defenses--the complaint-only reading and the all-pleadings approach. This Part offers a textual analysis of the Federal Rules of Civil Procedure, and considers the policy and practical considerations of each of the possible readings. It concludes by explaining why the all-pleadings analysis is the better of the two approaches, particularly from the standpoint of equity and fairness to the parties.

In Part III, this Article examines what the all-pleadings approach to affirmative defenses would look like in the context of an employer's affirmative defense to a claim of sexual harassment. This Part explores the contours of plausibly pleading that defense and provides a concrete illustration of the facts a defendant must allege to satisfy the new standard articulated by the Court. Through this example, this Part explains what defendants in all civil cases must plead to comply with Twombly and Iqbal. In Part IV, this Article concludes by exploring some of the implications of adopting the plausibility standard for affirmative defenses and closely examines some of the benefits and drawbacks of this approach.


    The Federal Rules of Civil Procedure clearly set forth what must be alleged in a plaintiff's complaint or in a defendant's answer. The Twombly and Iqbal decisions both interpret Rule 8(a), which requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief." (22) As discussed in this Part, the recent Supreme Court pleading decisions have interpreted this language as requiring that a plaintiff sufficiently state a plausible claim to relief. (23) Similarly, Rule 8(b) provides the requirements for the answer, making clear that the defendant must "state in short and plain terms its defenses to each claim asserted against it." (24) Rule 8(c) addresses the...

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