The plausibility standard as a double-edged sword: the application of Twombly and Iqbal to affirmative defenses.

AuthorDominguez, Manuel John

The U.S. Supreme Court's recent reinterpretation of the federal notice pleading standard in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), has been both consequential and controversial. For half a century prior to Twombly, the liberal "notice pleading" standard in Conley v. Gibson, 355 U.S. 41 (1957), governed pleading under Fed. R. of Civ. P. 8. Twombly's abrupt "retirement" of the Conley standard in favor of a more fact-based "plausibility" standard (1) and Iqbal's affirmation and clarification of Twombly have significantly altered the pleading process. While courts, practitioners, and commentators have debated and documented Twombly's effect on pleading claims for relief, Twombly's application to affirmative defenses has not been widely discussed.

Before Twombly, federal courts were unified in holding that Conley's notice pleading standard applied to both claims and affirmative defenses. Since Twombly, district courts have had to decide whether Twombly's plausibility standard similarly applies to all pleadings. The federal appellate courts have yet to address Twombly's application to affirmative defenses. The vast majority of district courts that have considered the issue, including district courts in Florida, (2) hold that Twombly's plausibility standard applies to affirmative defenses (the "applying courts"). (3) In contrast, a handful of courts have concluded that claims and defenses have distinct pleading standards and, thus, have refused to extend Twombly to affirmative defenses (the "refusing courts"). One court adopted what can be dubbed a "hybrid" standard, holding that Twombly applies only to affirmative defenses not delineated in Rule 8(c). To elucidate the reasons for these different approaches, this article briefly reviews the evolution of federal notice pleading from Conley to Iqbal and the pre-Twombly standard for pleading affirmative defenses. The article then discusses the three approaches thus far adopted by the district courts.

Evolution of the Federal Pleading Standard From Conley to Iqbal

Fed. R. of Civ. P. 8 governs pleading in federal courts. Rule 8(a)(2) provides that "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief[.]" (4) In Conley, the Supreme Court defined the level of detail required under Rule 8(a)(2), which became known as the "notice pleading" standard. (5) The Court stated that a pleading need only include "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." (6) The Court stressed that a complaint does not have to include detailed factual allegations to provide fair notice, famously explaining 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 [or her] claim which would entitle him [or her] to relief." (7) By permitting a complaint that could conceivably support a claim to proceed to discovery, Conley rejected a factually detailed pleading model.

In Twombly, however, a class action alleging violations of [section]1 of the Sherman Act, (8) the Court departed from the notice pleading standard, instead holding that a plaintiff must plead factual allegations that show a "plausible entitlement to relief." (9) In its seven to two decision, (10) the Court opined that the "no set of facts" passage from Conley could not be reconciled with the Court's newly delineated Rule 8(a)(2) plausibility requirement and resolved that the Conley language had "earned its retirement." (11) Under Twombly, a complaint must now include factual allegations that raise the right to relief above the speculative level, and merely pleading "labels and conclusions" or a "formulaic recitation of the elements of a cause of action" is insufficient. (12) Unlike the modest factual requirements of the notice pleading standard, the plausibility standard requires that a pleading include specific factual allegations that are more than merely consistent with an entitlement to relief. (13)

Due in part to Twombly's focus on antitrust conspiracies and the discovery costs of complex litigation, widespread uncertainty existed regarding the extent of Twombly's reach. (14) Consequently, in Iqbal, a Bivens (15) suit alleging civil rights violations by government officials against a post-September 11th Muslim detainee, the Court took the opportunity to flesh out the details of the plausibility standard. (16) In its five to four decision, (17) the Court held that the plausibility standard governs all pleadings in federal civil actions, without exception. (18) Additionally, the Court set forth a "two-pronged" approach for assessing the sufficiency of a complaint: First, a court must parse the allegations to determine which are "factual allegations" and which are "legal conclusions"; second, the court must ascertain whether the factual allegations "plausibly give rise to an entitlement to relief." (19) Iqbal, thus, reinforced and formalized Twombly's plausibility pleading requirement and, in so doing, conclusively laid to rest Conley's notice pleading standard.

Application of the Notice Pleading Standard to Affirmative Defenses

Although Conley dealt only with the standard for pleading claims under Rule 8(a)(2), over time this "notice pleading" standard also became the standard for pleading affirmative defenses. Federal circuit courts reached this conclusion by adhering to a general application of the pleading standard--i.e., all pleadings are subject to the same requirements under Rule 8. (20) Hence, the circuit courts determined that the Conley notice pleading standard applied not just to pleading claims under Rule 8(a)(2), but to pleading affirmative defenses as well. (21)

The effect of the notice pleading standard on affirmative defenses is most apparent in the context of motions to strike under Fed. R. of Civ. P. 12(f). Rule 12(f) states that "[a] court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." (22) Due to Conley's minimal requirements for pleading factual detail before Twombly, courts consistently upheld the sufficiency of bare-bones affirmative defenses in the face of Rule 12(f) motions to strike. (23) As Wright and Miller explained preTwombly, "an affirmative defense may be pleaded in general terms and will be held to be sufficient, and therefore invulnerable to a motion to strike, as long as it gives the plaintiff fair notice of the nature of the defense." (24) In practice, the application of the liberal notice pleading standard to affirmative defenses largely neutralized Rule 12(f) motions to strike. Due to the negligible threat posed by a motion to strike, the pleading of...

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