An Implausible Standard for Affirmative Defenses

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroftv. Iqbal, the federal district courts split over whether to apply Twombly's plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts' decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading to affirmative defenses by identifying several fundamental flaws in their appeals to tradition, policy, and the text of Rule 8. Due to misguided reliance on historical pleading practices, an imprecise reading of Twombly, and an overestimation of the availability of discovery for unpled or stricken affirmative defenses, these courts fail to recognize that extending plausibility pleading beyond the complaint imposes an asymmetrical and unfairly onerous burden on defendants. This Note concludes that the courts that extend Twombly to affirmative defenses do so in violation of both the canons of statutory construction and the principles of the Rules Enabling Act.IntroductionMore than one hundred federal cases have contemplated whether the plausibility standard outlined in Bell Atlantic Corp. v. Twombly1 and Ashcroftv. Iqbal2 applies to affirmative defenses,3 yet the districts remain divided, and no court of appeals has yet addressed the issue.4 This division stems from the fact that the Supreme Court's three most important interpretations of Rule 8 of the Federal Rules of Civil Procedure5 have focused exclusively on Rule 8(a)(2), providing relative clarity in the pleading of complaints but no explicit guidance with regard to affirmative defenses.For the fifty years leading up to Twombly, the federal courts relied on the liberal notice pleading standards outlined in Conley v. Gibson,6 which held with reference to Rule 8(a)(2) that "all the Rules require is '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."7 Conley directed "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiffcan prove no set of facts in support of his claim which would entitle him to relief."8 When the Court reinterpreted Conley's "notice pleading" standard half a century later in Twombly, it once again focused exclusively on Rule 8(a)(2),9 explaining that to "sho[w] the pleader is entitled to relief,"10 the plaintiffmust plead sufficient factual matter to show a claim is "plausible on its face."11 Two years later, when Iqbal made it clear that Twombly's plausibility standard extends "to all civil complaints,"12 the Court similarly restricted its holding to an interpretation of Rule 8(a)(2).13While Twombly and Iqbal have given rise to a "deluge"14 of academic commentary addressing the merits of plausibility pleading and the history of Rule 8 in general,15 this Note addresses these cases solely as they relate to the pleading standard applicable to affirmative defenses. Conley, Twombly, and Iqbal do not mention Rule 8(c), which governs affirmative defenses.16 All three decisions focus on the sufficiency of a complaint, as opposed to an answer or a defense, and the Court has never explicitly applied Twombly's plausibility standard to pleadings beyond the complaint in any other case.17Despite the lack of direct guidance from the Court on whether to extend plausibility pleading beyond Rule 8(a)(2), many of the initial district court decisions on this issue "found that the heightened pleading standard announced in Twombly and Iqbal does apply to affirmative defenses."18 The rationales outlined by both courts and scholars to justify such an extension have been exceptionally uniform. …