Academic journal article Defense Counsel Journal

Fending off the Use of a Rule 12(f) Motion to Strike Affirmative Defenses

Academic journal article Defense Counsel Journal

Fending off the Use of a Rule 12(f) Motion to Strike Affirmative Defenses

Article excerpt

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.

I. 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)

II. 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. …

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