PAULM. HAYDEN, 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

Plaintiff, 

v. 

3: 14-cv-1060-AC 

FINDINGS AND RECOMMENDATION 

UNITED STATES OF AMERICA, 

Defendant. 

A COST A, Magistrate Judge: 

Pending !Vfotion 

Paul Hayden ("Hayden") filed a Complaint against the United States under the Federal 

Tort Claims Act ("FTCA") for medical negligence arising from the care he received at the 

Portland Veteran's Administration Medical Center. Hayden seeks monetary relief, including an 

award of costs and fees. In its Answer, the United States asserted ten affirmative defenses to 

Hayden's claims. 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 1 of 11
Pursuant to Rules 8 and 12(1) of the Federal Rules of Civil Procedure, Hayden filed a 

l'vlotion lo Strike all ten of the government's affirmative defenses. In its Opposition, the United 

Stales agreed to withdraw all but three of its affirmative defenses. Oral argument was heard and, 

for the reasons set forth below, Hayden's Motion to Strike is granted, in part, and denied, in part. 

Legal Standard 

An answer must "state in short and plain terms" the defenses to each claim asserted 

against defendant in order to provide plaintiffs with fair notice of the defense(s). FED. R. CIV. P. 

8(b )(1 )(A). Under Federal Rule of Civil Procedure 8( c ), an "affirmative defense is a defense that 

does not negate the elements of the plaintiffs claim, but instead precludes liability even if all of 

the elements of the plaintiffs claim are proven." Eames v. AT & T Pension Benefit 

Pla11-No11bargained Progm111, 718 F. Supp. 2d 1167, 1171-72 (N.D. Cal. 2010) (citation and 

quotations omitted). An insufficiently pleaded defense fails to comply with Rule 8 pleading 

requirements by not providing "plaintiff [with] fair notice of the nature of the defense" and the 

grounds upon which it rests. Wiwhak v. City Nat'/ Bank, 607 F.2d 824, 827 (9th Cir. 1979) 

Rule l 2(f) provides that a court may, on its own or on a motion, "strike from a pleading 

an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." FED. R. 

CIV. P. 12(f). A defense may be insufficient "as a matter of pleading or as a matter of 

substance." Security People, Inc. v. Classic Woodworking, LLC, No. C-04-3133 MMC, 2005 WL 

645592, al *1 (N.D. Cal. Mar. 4, 2005). "A showing of prejudice is not required to strike an 

'insufficient' portion of the pleading as opposed lo 'redundant, immaterial, impertinent, or 

scandalous matter' under Rule 12(f)." Bottoni v. Sallie Mae, Inc., No. C 10-03602 LB, 2011 WL 

3678878, at *2 (N.D. Cal. Aug. 22, 2011). 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 2 of 11
Discussion 

The United States asserts three affirmative defenses: 

THIRD AFFIRMATIVE DEFENSE 

If Plaintiff sustained damages by reason of the matters alleged in the 

Complaint, which is denied, then those damages were caused in whole or in part 

by the acts of the Plaintiff, or third parties and were not caused or contributed to in 

any manner by any fault or negligence of the Defendant, its officers, agents, 

servants, employees, or others acting within the scope of their office and for 

whom the United States bears responsibility. 

FIFTH AFFIRMATIVE DEFENSE 

Alternatively, or in addition, if the Plaintiff establishes any basis for 

liability against the United States, the Plaintiff was comparatively negligent. 

NINTH AFFIRMATIVE DEFENSE 

In the event that judgment is recovered herein against the United States, 

said judgment shall be reduced pursuant to applicable laws, by those amounts 

which have been, or will, with reasonable certainty, be reimbursed or indemnified, 

in whole or in part, from any collateral source and shall be offset against any 

amounts owed or reimbursable to the united States. Defendant is entitled to any 

offset or credit for any and all benefits paid or payable to or for plaintiff for the 

injuries, damages or losses which payment was made by the defendant United 

States or funded by the defendant through a state, county or city government or 

other governmental entity. 

(Answer 8-10.) Hayden challenges all three affirmative defenses on the same grounds; namely, 

the defenses fail to allege sufficient facts to give notice of the ground for the defense, and it is 

merely a legal conclusion. (Pl.'s Mol. Strike 3-5.) 

While Hayden does not challenge the United States' affirmative defenses for failure to 

comply with the pleading standards set forth by the Supreme Court in Bell Atlantic Corp. v. 

Tll'omh~)', 550 U.S. 544 (2007) and Ashcrofi v. Iqbal, 556 U.S. 5662 (2009), effectively, his 

motion here is a challenge under Rule 12(b)(6). Indeed, Hayden's motion attacks each of the 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 3 of 11
government's affirmative defenses on the basis the defense states only legal conclusions and 

provides no notice of the basis for the defense. The question of whether Twombly and Iqbal 

apply to affirmative defenses still is an unsettled question in the Ninth Circuit. Nevertheless, for 

the reasons explained below, this court finds the principles set forth in Twombly and Iqbal are the 

appropriate standard to apply to a motion which challenges the factual sufficiency of a pleaded 

defense. Consequently, the court will treat Hayden's motion as one for failure to state a claim 

under Rule l 2(b )(6). 

The starting point is the language of Rule 8 of the Federal Rules of Civil Procedure. 

Federal Rule of Civil Procedure 8 governs pleading whether by complaint or answer. Rule 8 is 

entitled "General Rules of Pleading," which means its requirements apply to complaints and 

answers because both arc "pleadings" as defined by Rule 7(a). Rule 8(a)(2) requires a "claim for 

relief' to contain "a short and plain statement of the claim showing that the pleader is entitled to 

rcliefl.]" FED. R. C!V. P. 8(a)(2). Rule 8(b)(2) further provides with respect to "denials" that 

they "must fairly respond to the substance of the allegations." Rule 8(b)(l)(A) requires a party to 

"state in short and plain terms its defenses to each claim asserted against it[,]" the subsection 

making no distinction between defenses and affirmative defenses. FED. R. C!V. P. 8(b)(l)(A). 

Rule 8( c) specifically addresses affirmative defenses and requires that a party "affirmatively state 

any avoidance or affirmative defense" in the responsive pleading. FED. R. C!V. P. 8(c)(l). Under 

the meaning of Rule 8( c ), an "affirmative defense is a defense that does not negate the elements 

of the plaintiffs claim, but instead precludes liability even if all of the elements of the plaintiffs 

claim are proven." Eames, 718 F. Supp. 2d at 1171-72 (quotations and citation omitted). 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 4 of 11
In pleading an aflirrnative defense, a defendant must comply with Rule 8's requirement of 

a "short and plain" statement to give the opposing party fair notice of the defense and the 

grounds upon which it rests. Wyshak, 607 F.2d at 827 ("The key to determining the sutTtciency 

or pleading an alllrrnative defense is whether it gives plaintiff fair notice of the defense."); see 

also Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647, 649 (D. Kan. 2009) (Rule 8 requires a 

"short and plain" statement so as to give the opposing party fair notice). Until recently, the "fair 

notice" requirement in Wyshak was "[t]he key to determining the sufficiency pleading an 

affirmative defense." 607 F.2d at 827. Since the Supreme Court's decisions in Twombly and 

Iqbal requiring plausibility, courts have considered whether the fair-notice requirement still 

controls the pleading of affirmative defenses. In that regard, this court agrees with the analysis 

set forth in Vogel v. Huntington Oaks Delaware Partners, LLC: 

Framing the issue as a choice between Twombly 's plausibility standard and 

Wyshak 's fair-notice standard is misleading, because Twombly merely revised the 

fair-notice standard on which Wyshak is based. In Wyshak, the Ninth Circuit 

adopted the prevailing fair-notice standard for pleading complaints and applied it 

to affirrnative defenses. Wyshak, 607 F.2d at 827 (citing Conley v. Gibson, 355 

U.S. 41, 47-48 (1957)). At the time, fair notice was defined by Conley v. Gibson, 

which held that disrnissal was warranted only if it appeared clear to the court that 

there were "no set of facts" that would entitle the plaintiff to relief. 355 U.S. at 

45-46. But Conley is no longer good law. Twombly and Iqbal soundly rejected 

the "no set of facts" standard by holding that fair notice requires the pleading of 

factual matter that creates a plausible right to relief .... 

As a result, Twombly "changed the legal foundation underlying" Wyshak, and 

Twombly 's plausibility requirement should apply to affirmative defenses just as 

Conley's "no set of facts" standard did before Twombly was decided. . . . In 

reaching this decision, the [ c ]ourt recognizes that nowhere in the text of 1il'ombly, 

Iqbal, nor Conley does the Supreme Court discuss affirmative defenses. But 

simply because the issue was not before the Supreme Court does not mean 

Twombly '.1· logic applies with any less force to affirmative defenses. 

291F.R.D.438, 440 (C.D. Cal. 2013) (citations omitted). 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 5 of 11
Thus, a party is held to the same "short and plain" content requirement whether asserting 

a claim for relief or asserting a defense to a claim for relief. The drafters could have used 

different language or phrases lo describe parties' duties when asserting a claim for relief or a 

defense (or affirmative defense), but they did not. Further, Rule 8(d), entitled "Pleading to Be 

Concise and Direct; Alternative Statements; Inconsistency," applies to all pleadings - whether a 

complaint, an answer, or other form of pleading - and among other requirements states that 

"[ e]ach allegation must be simple concise, and direct." FED. R. C!V. P. 8( d). It is important to 

note that defenses make allegations in the same manner and frequency as do claims for relief. 

Again, the drafters chose to use identical language lo govern lhe content of both complaints and 

answers. Accordingly, it is inconsislenl and unsupportable under the Rules to apply different 

standards to identical terms used in the same Rule, particularly when nothing contained in the 

Rule itself or in the Advisory Committee Noles suggests lhe drafters intended a complaint be 

treated differently from an answer. 

The second consideration is that a defense is, in effect, a claim for relief. Defenses are an 

alleged avoidance of the claims asserted by plaintiff; by asserting defenses, a defendant asks the 

court or a jury for a form of relief, such as, for example, to dismiss plaintiffs claim as not 

sufficiently pleaded, to order the claim be amended, to dismiss or transfer the case to another 

court because of jurisdiction or venue considerations, to find the contract unconscionable, or to 

find plaintiff comparatively negligent. Defendant must allege and prove the validity of these and 

other defenses; if defendant does so, the court grants the specific relief requested in the defense. 

There is no logic to holding plaintiff to the more exacting Twombly and Iqbal standard while 

allowing defendant to continue to shelter under the more lenient pre-Twombly and Iqbal standard 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 6 of 11
when both plaintiff and defendant have the same burden to prove that which they allege in their 

respective pleadings. 

Third, notice pleading applies in federal court, even still, notwithstanding that Twombly 

and Iqbal imposed a more exacting notice pleading standard. Again, logic dictates that both 

sides' pleadings be treated similarly for this purpose: the detail required under Twombly and 

Iqbal to constitute sufficient notice of the basis for a defense should be the same detail required 

to constitute sufficient notice of the basis for a claim for relief. At least some of the courts that 

have applied 1\Fombly and Iqbal to affirmative defenses have so observed. See, e.g., Barnes, 718 

F. Supp. 2d at 1172 ("Rule 8's requirements with respect to pleading defenses in an answer 

parallels the Rule's requirements for pleading claims in a complaint."); Perez v. Gordon & Wong 

Law GJ]J., P.C., Case No. 11-3323, 2012 WL 1029425, at *7 (N.D. Cal. March 26, 2012) 

(applying 1\Fombly and Iqbal to affirmative defenses because "'[a]flirmative defenses are 

governed by the same pleading standards as complaints."' (quoting Qarbon.com Inc. v. eHelp 

Corp., 315 F. Supp. 2d 1046, 1049 (N.D. Cal. 2004)); see also Hayne, 263 F.R.D. at 650 ("It 

makes no sense to find that a heightened pleading standard applies to claims but not to 

aflirmative defenses. In both instances, the purpose of pleading requirements is to provide 

enough notice to the opposing party that indeed there is some plausible, factual basis for the 

assertion and not simply a suggestion of possibility that it may apply to the case."). That is, both 

require a party's pleading to contain "a short and plain" statement of their case. Bames, 718 F. 

Supp. 2d at 1172; Hayne, 263 F.R.D. at 650. 

In Bames, Judge Patel set forth a well-reasoned and thorough analysis in support of her 

finding that the pleading standard articulated by the Supreme Court in Twomb(y and Iqbal 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 7 of 11
likewise applies to affirmative defenses. 718 F. Supp. 2d at 1171-72. Judge Patel explained 

Rule 8(c) specifically addresses allinnative defenses and requires a party to '"affirmatively state 

any avoidance or affirmative defense"' in the responsive pleading. Id. at 1171 (quoting FED. R. 

C1v. P. 8(c)(I).) Citing pre-2007 Ninth Circuit authority, Judge Patel noted defendants must 

comply with Rule S's requirement of a "short and plain" statement to give the opposing party fair 

notice of the allirmative defense and the grounds upon which it rests. Wyshak, 607 F.2d at 827; 

see also Hayne, 263 F.R.D. at 649. 

In Eames, Judge Patel stepped through the relevant Supreme Court decisions, beginning 

with Conley v. Gibson, 355 U.S. 41, 45-46 ( 195), which set forth the prior fair notice pleading 

standard. Under Co11ley, the courts were permitted to dismiss claims for relief only when "it 

appeared beyond doubt that the plaintiff could prove no set of facts in support of his claim which 

would entitle him to relief." Id. Jn 2007, however, the Supreme Court, departed from the 

standard in Co11ley, and required plaintiffs to allege "enough facts to state a claim to relief that is 

plausible on its face." Twomb~J', 550 U.S. at 570. While plaintiffs are not required to set forth 

detailed factual allegations, they must allege the grounds for entitlement to relief beyond mere 

labels and conclusions. Id. at 555. Two years after its decision in Twombly, the Supreme Court 

clarified that Twombly was based upon its interpretation and application of Federal Rule of Civil 

Procedme 8, thereby expressly extending the pleading standard in 1il'Ombly to all civil cases. 

Allhough the Ninth Circuit has yet to rule on the issue, the majority of district courts 

addressing the issue have required affirmative defenses to meet the heightened pleading standard 

dictated by the Supreme Court in Twombly and Iqbal. See, e.g., Dodm11 v. Strntegic Restaurants 

Acquisition Company II, LLC, 289 F.R.D. 595, 601-03 (E.D. Cal. 2013) (relying on the policy 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 8 of 11
considerations underlying Tl1'0111bly and Iqbal to find the heightened pleading standard 

established by those cases applies to affirmative defenses); Perez, 2012 WL 1029425, at *6-*7 

(Wvshak no longer controlling because Tl1'0111bly and Iqbal "displaced" Conley); Peterson v. 

Ac11111ed, LLC, No. 10-cv-586-HU, 2010 WL 5158542, at *3 (D. Or. Dec. 14, 2010) (applying 

Tll'omb~J' to affirmative defenses); Eames, 718 F. Supp. 2d at 1171-72 ("no reason why the same 

principles applied to pleading claims should not apply to the pleading of affirmative defenses"); 

CTF Dev., Inc. v. Penta Ho.1pitality, LLC, No. C 09-02429, 2009 WL 3517617, at *7-8 (N.D. 

Cal. Oct. 26, 2009) (requiring defendants "to proffer sutlicient facts and law to support an 

affirmative defense"); Hayne, 263 F.R.D. at 649-50 (noting extensive list of cases in which 

district courts applied Twombly and Iqbal to affirmative defenses). 

Lastly, the policy underlying Twombly and Iqbal's plausibility requirement applies with 

equal force to defenses. The Supreme Court recognized that tightening notice pleading to require 

plausibility serves an important gate-keeping function by cutting off vague or even frivolous 

claims early, thus avoiding the time and expense of unnecessary or far-ranging discovery. 

Discovery on affirmative defenses such as promissory estoppel and novation, for example, can be 

every bit as costly and time-consuming, and fact-intensive, as discovery on plaintiff's claim for 

breach of contract. "Applying the standard for heightened pleading to affirmative defenses 

serves a valid purpose in requiring at least some valid factual basis for pleading an affirmative 

defense and not adding it to the case simply upon some conjecture that it may somehow apply." 

Hayne, 263 F.R.D. at 650. Applying a heightened to alfomative defenses also "weed[s] out the 

boilerplate listing of affirmative defenses which is commonplace in most defendants' pleadings 

where many of the defenses alleged are irrelevant to the claims asserted." Barnes, 718 F. Supp. 

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Case 3:14-cv-01060-AC Document 18 Filed 12/16/14 Page 9 of 11
2d at 1172. Plaintiffs are entitled to the same level of plausibility in a defense as defendants are 

to a claim for relief; doing so ensures plaintiffs will not be put to unnecessary time and expense 

pursuing needless discovery. 

The court now turns to Hayden's challenges to the remaining affirmative defenses 

asserted by the United States in this case. The court strikes the government's Third Affirmative 

Defense asserting the damages to Ilayden were caused "by the acts of the Plaintiff, or third 

parties," and its fifth Affirmative Defense charging only that Hayden was "comparatively 

negligent." Those defenses are stated as conclusions and devoid of supporting facts indicating 

plausibility. In fact, the actual bases for these defenses are not stated in the Answer. Neither of 

those affirmative defenses, as stated, is targeted to this specific case or assert any facts. The 

defenses do not provide Hayden with fair notice and, therefore, are deficient. Accordingly,,the 

United States' Third and Fifth Affirmative Defenses should be dismissed, without prejudice, and 

the government should be permitted leave to amend these two defenses. 

All defenses asserted by the United States must be "factually plausible." Thus, in 

pleading its affirmative defenses, the government should identify the actors and, to the extent 

possible, the acts and omissions relied upon for its enumerated defenses. 

With respect to the Ninth Affirmative Defense, the United States is su!Ttciently clear that 

it will seek reimbursement for benefits received by Hayden and paid for by the federal 

government. The collateral source rule does apply to the United States through the FTCA, as 

limited by applicable laws, and, consequently, may be asserted as a defense in this case. In 

addition, as pleaded, this delense is adequate and provides Hayden with fair notice. 

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Consequently, Hayden's request to dismiss the government's Ninth Affirmative Defense should 

be denied. 

R eco111111e11dat ion 

Based upon the foregoing, Hayden's Motion to Strike (doc. #13) is GRANTED, in part, 

and DENIED, in part. The United States' Third and Fifth Affirmative Defenses should be 

stricken, and the government is granted leave to replead those de lenses. 1 

DATED this/k'i~fDecember, 2014 

Scheduling Order 

2 

JOHN V. ACOSTA 

UnittJ States Magistrate Judge 

The above Findings and Recommendation will be referred to a United Stales District 

Judge for review. Objections, if any, are due January 5, 2015. Ifno objections are filed, review 

of the Findings and Recommendation will go under advisement on that date. 

If objections are filed, a response to the objections is due fourteen days after the date the 

objections are filed and the review of the Findings and Recommendation will go under 

advisement on that date. 

1

Thc Case Management deadline of January 16, 2015, for amendment of all pleadings 

may be reset upon a motion by a party. 

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