Plausibility Beyond the Complaint

ABSTRACT In Bell Atlantic Corp. v. Twombly, and Ashcroft v. Iqbal, the Supreme Court announced a new plausibility standard for a plaintiff's allegations. The decisions may have even broader implications, however, as many federal district courts have already applied this pleading standard to a defendant's affirmative defenses. This Article makes sense of Twombly and Iqbal in the context of the affirmative defense. This Article addresses the two possible readings of Twombly and Iqbal: first, that the decisions are limited to a plaintiff's civil complaint, and second, that a defendant must also comply with the Supreme Court's plausibility standard by pleading enough facts to sufficiently state an affirmative defense. This Article explains why a close textual review of the Federal Rules of Civil Procedure, combined with numerous policy and practical considerations, support the broader second reading of the Supreme Court's decisions. What it actually means to plausibly plead an affirmative defense is a much more complicated question. This Article closely examines this issue through the lens of one of the most complex and important defenses in all civil case law--the affirmative defense to a claim of sexual harassment. By way of this example, this Article explains how the plausibility standard would apply more broadly to defendants in all civil cases. The question whether the plausibility standard should apply to defendants--and if so, how it should apply--is likely to create significant controversy in the coming years. This Article establishes a foundation for that discussion. TABLE OF CONTENTS INTRODUCTION I. TWOMBLY, IQBAL & THE FEDERAL RULES OF CIVIL PROCEDURE II. PLAUSIBILITY BEYOND THE COMPLAINT A. The Complaint-Only Reading B. The All-Pleadings Approach III. AN EXAMPLE OF THE ALL-PLEADINGS APPROACH: THE EMPLOYER'S AFFIRMATIVE DEFENSE TO SEXUAL HARASSMENT A. The Faragher-Ellerth Defense to Sexual Harassment B. The All-Pleadings Approach C. Summary of the All-Pleadings Approach D. The Complaint-Only Reading IV. IMPLICATIONS OF THE ALL-PLEADINGS APPROACH FOR ALL CIVIL CASES CONCLUSION "What's good for the goose is good for the gander." (1) INTRODUCTION Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal (3) herald a new pleading standard not only for plaintiffs but perhaps for defendants as well. In these recent Supreme Court decisions, the Court announced a new standard for evaluating a plaintiff's allegations-that is, a complaint now must set forth enough facts to give rise to a plausible claim to relief. The Court left unanswered, however, whether this plausibility standard should also apply to a defendant's affirmative defenses. This Article makes sense of Twombly and Iqbal in the context of a defendant's responsive pleadings. Simply put, there are two possible readings of Twombly and Iqbal for the affirmative defense. (4) The first reading concludes that these decisions apply only to a plaintiff's complaint and should not be extended to a defendant's pleadings. (5) Supporters of this complaint-only approach point to the fact that the recent Supreme Court decisions make no reference to a defendant's pleadings and are easily distinguishable on this basis. (6) Additionally, whereas plaintiffs typically have many months or years to investigate and file their claims, defendants must respond to a federal complaint within twenty-one days. (7) As a result, it is a fair reading of Twombly and Iqbal--as well as a sensible application of the Federal Rules of Civil Procedure--to conclude that the plausibility standard should not be extended beyond the complaint. This Article explains why this reading should fail in favor of a second approach--applying the Twombly and Iqbal standard more broadly to all civil pleadings. This approach would require a defendant to plead enough facts to give rise to a plausible affirmative defense. …