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WO 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

James Craten, et al., 

Plaintiffs, 

v. 

Foster Poultry Farms Incorporated, 

Defendant. 

No. CV-15-02587-PHX-DLR

ORDER 

 Before the Court is Plaintiffs James and Amanda Craten’s Motion to Strike 

Affirmative Defenses One, Seven and Eight. (Doc. 30.) The motion is fully briefed.1

 

For the following reasons, the motion is granted in part and denied in part. 

BACKGROUND 

 In December 2015, the Cratens filed this lawsuit against Defendant Foster Poultry 

Farms Incorporated (Foster) alleging that their minor child, N.C., became severely ill and 

suffered serious injuries as a result of salmonella poisoning traceable to Foster’s chicken. 

(Doc. 7.) The Cratens bring strict liability, breach of implied warranty, and negligence 

claims. (Id.) In March 2016, Foster answered the complaint and pled eight affirmative 

defenses. (Doc. 26.) The Cratens have moved to strike Foster’s first, seventh, and eighth 

affirmative defenses pursuant to Federal Rule of Civil Procedure 12(b)(f). (Doc. 30.) 

 

1

 The Cratens’ request for oral argument is denied because the motion is fully briefed and oral argument will not aid in the Court’s resolution of the motion. See Fed. 

R. Civ. P. 78(b); LRCiv. 7.2(f). 

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LEGAL STANDARD 

 On its own or upon timely motion by a party, Rule 12(f) authorizes the court to 

“strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, 

or scandalous matter.” The purpose of a motion to strike “is to avoid the expenditure of 

time and money that must arise from litigating spurious issues by dispensing with those 

issues prior to trial[.]” Sidney-Vinstein v. A.H. Robins Co., 697 F.2d 880, 885 (9th Cir. 

1983). Motions to strike generally are disfavored, Ordahl v. U.S., 646 F. Supp. 4, 6 (D. 

Mont. 1985), and 

should be granted only where (1) it appears to a certainty that the plaintiff will succeed regardless of what facts could be 

proved in support of the defense; (2) the affirmative defense 

sought to be struck does not present disputed and substantial questions of law that could be resolved in such a way as to support the defense; and (3) the plaintiff shows it will be prejudiced by the inclusion of the affirmative defense. 

Tompkins v. R.J. Reynolds Tobacco Co., 92 F. Supp. 2d 70, 80 (N.D.N.Y. 2000). 

DISCUSSION 

 The Cratens argue that the pleading standards for complaints announced in Bell 

Atlantic Corporation v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 

662 (2009) apply equally to affirmative defenses. (Doc. 30 at 5-6.) They contend that 

Foster’s first, seventh, and eighth affirmative defenses are not supported by sufficient 

factual allegations and, therefore, are not facially plausible. (Doc. 30 at 6); see Twombly, 

550 U.S. at 570; Iqbal, 556 U.S. at 679. Alternatively, the Cratens argue that these 

affirmative defenses, as alleged, are too vague to impart fair notice. (Doc. 34 at 4.) 

I. Applicability of Twombly and Iqbal 

 In Twombly, the Supreme Court considered “what a plaintiff must plead in order to 

state a claim” under Rule 8(a)(2), which requires “a short and plain statement of the claim 

showing that the pleader is entitled to relief.” Twombly, 550 U.S. at 544-555. The 

Supreme Court concluded that a complaint must allege “enough facts to state a claim to 

relief that is plausible on its face.” Id. at 570. In Iqbal, the Supreme Court explained, 

“[w]hen there are well-pleaded factual allegations, a court should assume their veracity 

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and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 

556 U.S. at 679. Notably, neither case refers to Rule 8(c), which governs pleading 

affirmative defenses. 

 Since then, federal courts have split over whether Twombly and Iqbal extend to 

affirmative defenses. Compare Hayden v. United States, No. 3:14-CV-1060-AC, 2015 

WL 350665, at *4 (D. Or. Jan. 26, 2015) (concluding that Twombly and Iqbal apply to 

affirmative defenses), Palmer v. Oakland Farms, Inc., No. 5:10CV00029, 2010 WL 

2605179, at *5 (W.D. Va. June 24, 2010) (“[T]he considerations of fairness, common 

sense and litigation efficiency underlying Twombly and Iqbal strongly suggest that the 

same heightened pleading standard should also apply to affirmative defenses.”), and 

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

(concluding that “[t]he underlying rationale used by the Supreme Court [is] a justification 

for extending the holdings of Twombly and Iqbal to affirmative defenses”), with Tyco 

Fire Prods. LP v. Victaulic Co., 777 F. Supp. 2d 893, 900 (E.D. Pa. 2011) (concluding 

that Twombly and Iqbal do not apply to affirmative defenses “[i]n light of the differences 

between Rules 8(a) and 8(c) in text and purpose”), Lane v. Page, 272 F.R.D. 581, 591 

(D.N.M. 2011) (“Neither the text of the rules nor the Supreme Court’s decisions in 

[Twombly and Iqbal] require the Court to extend the pleading standard from those cases 

to affirmative defenses.”), and Wells Fargo & Co. v. United States, 750 F. Supp. 2d 

1049, 1051 (D. Minn. 2010) (“Iqbal and Twombly do not apply to the pleading of 

affirmative defenses.”). The Ninth Circuit has not addressed the issue, and district courts 

throughout the Ninth Circuit have resolved it differently. Compare Vogel v. Huntington 

Oaks Del. Partners, LLC, 291 F.R.D. 438, 440-42 (C.D. Cal. 2013) (applying Twombly

and Iqbal to affirmative defenses), and Barnes v. AT & T Pension Ben. PlanNonbargained Program, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010) (same), with

Rockwell Automation, Inc. v. Beckhoff Automation, LLC, 23 F. Supp. 3d 1236, 1241-42 

(D. Nev. 2014) (declining to extend Twombly and Iqbal), and Kohler v. Staples the Office 

Superstore, LLC, 291 F.R.D. 464, 468-69 (S.D. Cal. 2013) (same). Having considered 

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the parties’ arguments and surveyed the cases discussing the issue, the Court finds that 

the text of Rule 8(c)(1) and fairness considerations compel the conclusion that Twombly

and Iqbal do not govern pleading affirmative defenses. 

 The Court begins with the plain language of the Rule. See Hughes Aircraft Co. v. 

Jacobson, 525 U.S. 432, 438 (1999). Unlike Rule 8(a)(2), which requires a complaint to 

contain “a short and plain statement . . . showing that the pleader is entitled to relief,” 

Rule 8(c)(1) requires only that a party “affirmatively state any avoidance or affirmative 

defense[.]” The Court generally assumes that identical words in different parts of a 

provision share the same meaning, and that different meanings are intended when certain 

language is used in one part but different language in another. DePierre v. Untied States,

564 U.S. 70, 83 (2011); Atl. Cleaners & Dryers v. United States, 286 U.S. 427, 433 

(1932). For example, Rule 8(b)(1), which governs defenses, admissions, and denials in 

responsive pleadings, requires a responding party to “state in short and plain terms its 

defenses to each claim asserted against it.” Because of its linguistic similarity with Rule 

8(a)(1), many courts have determined that “Rule 8’s requirements with respect to 

pleading defenses in an answer parallels the Rule’s requirements for pleading claims in a 

complaint.” Barnes, 718 F. Supp. 2d at 1172; see also HCRI TRS Acquirer, LLC, 708 F. 

Supp. 2d at 691 n.3; Vogel, 291 F.R.D. at 441. 

 However, “[u]nlike subsections (a) and (b), subsection (c) does not include any 

language requiring the party to state anything in ‘short and plain’ terms.” McLemore v. 

Regions Bank, No. 3:08-CV-0021, 2010 WL 1010092, at *12 (M.D. Tenn. Mar. 18, 

2010), aff'd, 682 F.3d 414 (6th Cir. 2012). “Requiring an affirmative defense to contain a 

‘short and plain’ statement would ignore Rule 8(c)’s plain language[.]” F.T.C. v. AMG 

Servs., Inc., No. 2:12-CV-536-GMN-VCF, 2014 WL 5454170, at *6 (D. Nev. Oct. 27, 

2014). Furthermore, the Court must read provisions in such a way as to give effect, 

whenever possible, to every clause and word so that no portion is superfluous. Duncan v. 

Walker, 533 U.S. 167, 174 (2001). If the Court interpreted the words “affirmatively 

state” in Rule 8(c) to have the same meaning as the words “contain . . . a short and plain 

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statement . . . showing that the pleader is entitled to relief,” in Rule 8(a)(2), it would 

render much of Rule 8(a)(2) superfluous. 

 Fairness considerations also support the Court’s interpretation. Plaintiffs and 

defendants are not similarly situated at the pleading stage. For example, plaintiffs have 

the entire statute of limitations period to investigate their claims, thereby enabling them 

to allege specific facts in their complaints. Once served, however, defendants typically 

have only 21 days in which to file responsive pleadings. Fed. R. Civ. P. 12(a). Requiring 

defendants to allege affirmative defenses with the same level of factual specificity as 

plaintiffs allege claims would require a similar pre-suit investigation in a much shorter 

window of time. Such a result would impose an unreasonable and asymmetric burden, 

and increase the risk that defendants will waive potentially meritorious affirmative 

defenses. See Tyco Fire Prods., 777 F. Supp. 2d at 901 (“[A]pplying the concept of 

notice to require more than awareness of the issue’s existence imposes an unreasonable 

burden on defendants who risk the prospect of waiving a defense at trial by failing to 

plead it . . . and have a short amount of time to develop the facts necessary to do so[.]”); 

see also Fed. R. Civ. P. 12(b) (“Every defense to a claim for relief in any pleading must 

be asserted in the responsive pleading if one is required.”). 

 Moreover, requiring affirmative defenses to satisfy Twombly and Iqbal’s 

plausibility standard likely would lead to a proliferation of motions to strike. It is 

unlikely that the Supreme Court intended Twombly and Iqbal to open the floodgates to 

motions to strike, particularly in light of the disfavor with which such motions are 

viewed. See Tyco Fire, 777 F. Supp. 2d at 901 (“[R]equiring greater notice conflicts with 

the longstanding truism that motions to strike are disfavored.”). 

 Finally, although federal courts within the Ninth Circuit and around the country 

have resolved this question differently, courts within this District have consistently found 

that Twombly and Iqbal do not apply to affirmative defenses. See, e.g., Verco Decking, 

Inc. v. Consol. Sys., Inc., No. CV-11-2516-PHX-GMS, 2013 WL 6844106, at *5 (D. 

Ariz. Dec. 23, 2013); J & J Sports Prods., Inc. v. Vargas, No. CV 11-2229-PHX-JAT, 

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2012 WL 2919681, at *2 n.1 (D. Ariz. July 17, 2012); Ameristar Fence Prods., Inc. v. 

Phx. Fence Co., No. CV-10-299-PHX-DGC, 2010 WL 2803907, at *1 (D. Ariz. July 15, 

2010). Accordingly, the Court joins others in this District and concludes that Twombly

and Iqbal do not govern affirmative defenses. Rather, “[t]he key to determining the 

sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of 

the defense.” Simmons v. Navajo Cty., 609 F.3d 1011, 1023 (9th Cir. 2010) (quoting 

Wyshak v. City Nat'l Bank, 607 F.2d 824, 827 (9th Cir. 1979)). 

II. Fair Notice 

 In its first affirmative defense, Foster alleges that the Cratens’ complaint “fails to 

set forth facts sufficient to constitute a cause of action . . . .” (Doc. 26 at 13.) “A defense 

which demonstrates that plaintiff has not met its burden of proof is not an affirmative 

defense.” Zikovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir. 2002). See also 

Barnes, 718 F. Supp. 2d at 1174 (finding failure to state a claim identifies a pleading 

deficiency and is not an affirmative defense). The Federal Rules provide Foster with a 

mechanism for challenging the sufficiency of the Cratens’ complaint: a motion to 

dismiss under Rule 12(b)(6).2

 Foster’s first affirmative defense is stricken because it is 

not a proper affirmative defense. 

 In its seventh affirmative defense, Foster alleges that the Cratens are barred from 

recovery because they “have not properly maintained evidence and are guilty of 

spoliation because they have lost, destroyed, covered over, misplaced, altered, modified, 

failed to preserve and hindered defendants’ access to relevant and material evidence.” 

(Doc. 26 at 14.) The Court finds that this affirmative defense is sufficiently clear to put 

the Cratens’ on fair notice. Moreover, if the evidence alleged to have been spoliated was 

not clear to the Cratens after reading Foster’s answer, it is clear now in light of Foster’s 

 

2

 Foster argues that its first affirmative defense is appropriate because it tracks language from Form 30 of the Federal Rules. (Doc. 32 at 8-9); Fed. R. Civ. P. Form 30 

(abrogated Dec. 1, 2015). However, “[d]espite its inclusion in Civil Form 30, failure to 

state a claim under Rule 12(b)(6) is more properly brought as a motion and not an affirmative defense.” Barnes, 718 F. Supp. 2d at 1174. Moreover, the Appendix of Forms was abrogated effective December 1, 2015. 

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response brief. (Doc. 32 at 9.) Foster has adequately preserved its right to raise the 

spoliation issue after further factual development. 

 Finally, Foster alleges in its eighth affirmative defense that “Plaintiff’s claims are 

preempted by the federal Poultry Products Inspection Act, 21 U.S.C. § 451 et seq., and 

related federal regulations, including . . . 21 U.S.C. § 467e.” (Doc. 26 at 16.) The 

Cratens argue that Foster’s eighth affirmative defense does not sufficiently identify the 

preemptive federal law. Nevertheless, the parties argue extensively over the merits of the 

preemption affirmative defense. The Court finds that Foster’s eighth affirmative defense 

is sufficiently pled, and that the merits of the defense are not appropriate for resolution at 

such an early stage. Discovery will help refine the basis of the parties’ claims and 

defenses, thereby allowing the Court to more knowledgably address the preemption issue 

if it remains active after factual development. 

CONCLUSION 

 For the foregoing reasons, the Court concludes that Twombly and Iqbal do not 

govern affirmative defenses, and that Foster’s seventh and eighth affirmative defenses are 

adequately pled. The Court, however, grants the Cratens’ motion to strike Foster’s first 

affirmative defense because it does not allege a proper affirmative defense. 

IT IS ORDERED that the Cratens’ motion to strike, (Doc. 30), is GRANTED IN 

PART as explained herein. 

IT IS FURTHER ORDERED that Foster’s Motion for Judicial Notice, (Doc. 

33), is DENIED as moot because the Court did not rely on the submitted materials in 

reaching its decision. 

 Dated this 24th day of June, 2016. 

Douglas L. Rayes 

United States District Judge 

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