UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION AT LAFAYETTE

ANTHONY G. TAYLOR, )

Plaintiff, )

)

v. ) CAUSE NO.: 4:16-CV-52-PPS-JEM

)

J P MORGAN CHASE, CHASE HOME )

FINANCE, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Defendant’s Motion for Leave to File First Amended

Answer and Affirmative Defenses [DE 13], filed by Defendant on September 21, 2016. Plaintiff has

responded by filing a Motion to Strike [DE 18], which the Court has construed as a Response to

Defendant’s Motion. See DE 19. Defendants have replied [DE 20]. 

I. Background

Plaintiff sued Defendant in state court, alleging breach of contract and breach of the duty of

good faith and fair dealing. Plaintiff says that, after Defendant offered him a trial modification to

his mortgage payment plan under the federal Home Affordable Modification Program (HAMP),

Defendant breached its agreement to convert the trial modification into a permanent modification.

Defendant removed the case to federal court and filed an answer to the complaint. Defendant

now asks for leave to file an amended answer that contains affirmative defenses not contained in

Defendant’s initial answer. Plaintiff objects on the ground that the proposed affirmative defenses

do not comply with the Federal Rules of Civil Procedure.

II. Analysis

A party may amend a pleading with the Court’s leave, and the Court “should freely give

leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The decision to grant or deny a motion to
amend lies within the Court’s sound discretion, but leave to amend is “inappropriate where there is

undue delay, bad faith, dilatory motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of

allowance of the amendment, or futility of the amendment.” Villa v. City of Chicago, 924 F.2d 629,

632 (7th Cir. 1991); Campbell v. Ingersoll Milling Mach. Co., 893 F.2d 925, 927 (7th Cir. 1990). 

Here, Plaintiff does not argue that he will suffer prejudice if Defendant is allowed to amend

its affirmative defenses. Nor does Plaintiff allege any undue delay, bad faith, or dilatory motive by

Defendant, and Defendant has not repeatedly failed to cure deficiencies in its affirmative defenses.

The only question, then, is whether the proposed affirmative defenses are futile. Plaintiff says the

proposed affirmative defenses are futile, because they do not meet the Federal Rules of Civil

Procedure’s pleading requirements. See Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286,

1294 (7th Cir. 1989) (affirmative defenses are pleadings and are therefore subject to the Federal

Rules of Civil Procedure’s pleading requirements). 

The familiar pleading requirements for a complaint come from Bell Atl. Corp. v. Twombly,

550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). To satisfy Twombly and Iqbal and

survive a Rule 12(b)(6) motion to dismiss, a complaint must provide “a short and plain statement

of the claim showing that the pleader is entitled to relief,” see Fed. R. Civ. P. 8(a)(2), and “must

contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its

face.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).

But district courts are divided on the question of whether an affirmative defense must comply

with Twombly and Iqbal’s heightened pleading standard. SeeCottle v. Falcon Holdings Mgmt., LLC,

No. 11-95, 2012 U.S. Dist. LEXIS 10478, *3-4 (N.D. Ind. Jan. 30, 2012) (collecting cases on both

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sides); Husainy v. Allied Collection Serv., Inc., No. 15-95, 2016 U.S. Dist. LEXIS 54073, *2 (N.D.

Ind. Apr. 22, 2016) (“The Seventh Circuit Court of Appeals has not yet decided whether the

pleading standard for a complaint set forth in [Twombly and Iqbal] applies to . . . affirmative

defenses.”). 

Some courts have held that Twombly and Iqbal do apply to affirmative defenses. See, e.g.,

HCRI TRS Aquirer, LLC v. Iwer, 708 F. Supp. 2d 687, 691 (N.D. Ohio 2010) (“the pleading

requirements for affirmative defenses are the same as for claims of relief”); Barnes v. AT&T Pension

Benefit Plan, 718 F. Supp. 2d 1167, 1171 (N.D. Cal. 2010) (“the vast majority of courts . . . have

extended Twombly’s heightened pleading standard to affirmative defenses”) (collecting cases).

But courts in the Northern District of Indiana have generally held that an affirmative defense

need not satisfy Twombly and Iqbal. See Cottle, 2012 U.S. Dist. LEXIS 10478 at *5 (“This Court

agrees with those cases declining to apply the ‘plausibility’ standard of Iqbal and Twombly to

affirmative defenses.”); Fletcher v. Hoeppner Wagner & Evans, LLP, No. 14-231, 2015 U.S. Dist.

LEXIS 153057, *19 (N.D. Ind. Nov. 12, 2015) (“the Court declines to apply to affirmative defenses

the plausibility standard applied in Iqbal and Twombly”); Husainy, 2016 U.S. Dist. LEXIS 54073

at *2 (“This Court continues to agree with those cases declining to apply . . . Iqbal and Twombly to

affirmative defenses.”). 

Under this view, an affirmative defense need not satisfy Twombly and Iqbal’s plausibility

standard, but the affirmative defense must still contain a “short and plain statement” of the defense

itself. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989). Affirmative

defenses must be stricken if they contain “nothing but bare bones conclusory allegations” without

“any short and plain statement of facts.” Id. at 1295 (emphasis added). In essence, an affirmative 

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defense must “be adequately pled to put a plaintiff on notice of the defense.” Cottle, 2012 U.S. Dist.

LEXIS 10478 at *12; Design Basics, LLC v. Windsor Homes, Inc., No. 16-51, 2016 U.S. Dist.

LEXIS 91910, *8 (N.D. Ind. July 14, 2016) (denying motion to strike affirmative defenses because

the affirmative defenses were stated “in short and plain terms” and “sufficiently put [the plaintiff]

on notice of the affirmative defenses”); accord Bielfeldt v. Bourazak, No. 15-1419, 2016 U.S. Dist.

LEXIS 46986, *6 (C.D. Ill. Apr. 7, 2016) (“Federal Rule of Civil Procedure 8 requires for

affirmative defenses, at a minimum, fair notice of a party’s defense.”).

Here, Plaintiff argues that proposed affirmative defenses B, G, H, M, N, and O use the word

“may” and are consequently not “affirmative” but are rather “a laundry list of maybes.” For

example, proposed affirmative defense B asserts that Plaintiff’s claims “may be barred by his failure

to mitigate damages.” The Court agrees. Affirmative defenses must be stricken if they present

merely “bare bones” or “conclusory” allegations, and the proposed affirmative defenses at issue are

not even conclusory, as Defendant proposes to plead that Plaintiff’s claims “may” be barred for

various reasons—not that the claims are barred. So the Court finds that allowing Defendant to plead

these affirmative defenses would be futile. 

Plaintiff further argues that all of Defendant’s proposed affirmative defenses are improper

because they are preceded by the statement that Defendant “may” rely upon some or all of the listed

affirmative defenses. But the Court sees no problem with this sentence. Though the introductory

sentence uses the word “may,” the significance of the word is merely that Defendant may or may

not actually seek to use every one of the listed affirmative defenses after discovery or at trial. The

purpose of requiring parties to plead their affirmative defenses is to put the opposing party on notice,

and the introductory sentence adequately serves that purpose. 

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Plaintiff also argues that proposed affirmative defenses A, D, E, K, and L are not actually

affirmative defenses. The Court agrees, for the reasons below.

Defendant’s proposed affirmative defense A asserts that “Plaintiff’s Complaint in whole or

in part fails to state a claim against [Defendant] upon which relief can be granted.” But this is not

a proper affirmative defense; it is a “recitation of the standard for a motion to dismiss.” Tome

Engenharia E Transportes v. Malki, No. 94-7427, 1996 U.S. Dist. LEXIS 4585, *29 (N.D. Ill. Apr.

9, 1996); Joe Hand Promotions, Inc. v. Kurti, No. 14-1277, 2015 U.S. Dist. LEXIS 120170, *2

(C.D. Cal. Sept. 8, 2015) (“[F]ailure to state a claim[] is not an affirmative defense. . . . [It] is more

properly brought as part of a Rule 12(b)(6) motion.”).

Defendant’s proposed affirmative defenses D and E assert that Plaintiff’s damages are

speculative, uncertain, impossible to ascertain, unrecoverable, or not cognizable. But asserting that

a plaintiff’s claimed damages are speculative, vague, or even non-existent does not constitute an

affirmative defense. Manley v. Boat/U.S. Inc., No. 13-5551, 2016 U.S. Dist. LEXIS 41036, *14

(N.D. Ill. Mar. 29, 2016) (“simply accusing [a plaintiff] of pleading vague and speculative damages

does not state an affirmative defense”); Varrasso v. Barksdale, No. 13-1982, 2016 U.S. Dist. LEXIS

46686, *7-8 (S.D. Cal. Apr. 5, 2016) (affirmative defense that plaintiffs’ damages are “speculative

or nonexistent . . . are simply allegations that Plaintiffs did not meet their burden of proof . . . [so]

they are not affirmative defenses”); Joe Hand Promotions, Inc. v. Kurti, No. 14-1277, 2015 U.S.

Dist. LEXIS 120170, *2 (C.D. Cal. Sept. 8, 2015) (“speculative damages[] is a defense to damages,

not an affirmative defense”) As for the contention that Plaintiff’s damages are unrecoverable,

Defendant must state in plain terms the reason why it believes the damages are unrecoverable, in

order to put Plaintiff on notice. See IPSCO Tubulars, Inc. v. Ajax TOCCO Magnethermic Corp., No.

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10-21, 2015 U.S. Dist. LEXIS 158756, *5 (E.D. Ark. Nov. 24, 2015) (defendant had burden of

proving its affirmative defense that plaintiff’s damages were unrecoverable under Section 12.1 of

the parties’ contract).

Defendant’s proposed affirmative defense K asserts that there is “no private cause of action

under HAMP.” But Plaintiff has not pleaded a “private cause of action under HAMP.” Rather,

Plaintiff has sued Defendant for breach of contract and breach of the duty of good faith and fair

dealing.

Finally, Defendant’s proposed affirmative defense L asserts that the trial modification plan

did not constitute an enforceable contract or agreement. But this is a matter that Plaintiff himself

must prove, not an affirmative defense upon which Defendant has the burden of proof. See, e.g.,

Dynasty Apparel Indus. v. Rentz, 206 F.R.D. 603, 606 (S.D. Ohio 2002) (in breach of contract case,

“there [wa]s no contract between the parties” does not constitute an affirmative defense).

Because Defendant’s proposed affirmative defenses A, D, E, K, and L are not proper

affirmative defenses, it would be futile to let Defendant plead them.

III. Conclusion

For the reasons above, the Court DENIES Defendant’s Motion for Leave to File First

Amended Answer and Affirmative Defenses [DE 13], with leave to re-file a renewed motion on or

before November 21, 2016.

SO ORDERED this 7th day of November, 2016.

s/ John E. Martin 

MAGISTRATE JUDGE JOHN E. MARTIN

UNITED STATES DISTRICT COURT

cc: All counsel of record

Plaintiff, pro se

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