The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses

Table of ContentsI. Introduction 1574II. The Challenge of the National Incoherence on TwiqbaVs Applicability to Affirmative Defenses 1578III. A Litigation Exemplar: Weddle v. Bayer AG Corp 1585A. Mr. Weddle's Case and Its Pleadings 1586B. The Weddle Court's Ruling 1591C. The Weddle Court's Rationale 1598IV. A Survey of the Case Law Ruling onTwiqbaVs Applicability to Affirmative Defenses 1602A. The Majority Trend Rejects Twiqbal for Defenses, but the Minority View Remains Substantial 1604B. The Textual Argument Debate 1611C. The Policy Argument Debate 1617V. National Incoherence and the Practitioner's Dilemma 1622VI. Conclusion 1634VII. Appendix of Cases to The Odd State of Twiqbal Plausibility in Pleading Affirmative Defenses 1635I. IntroductionThe phrase, "what's sauce for the goose is sauce for the gander," is familiar not just to Parisian-trained restaurant chefs. Along with its American cousin,1 the phrase has long found a settled home in the English lexicon as a shorthand way of imparting a principle of general equality-it is, to the idiom scholar and daily conversationalist alike, "something that you say to suggest that if a particular type of behaviour is acceptable for one person, it should also be acceptable for another person."2 It seems that the phrase's culinary heritage comes from the supposedly evident notion that the sauce one would serve with a dish of cooked female goose is no different than the one expected to be served with a dish of cooked male goose.3 Given this fowl ancestry, the phrase, unsurprisingly, was once understood as connoting equality just between sexes.4 It has long since acquired its contemporary, far broader application-anything that's fair for you, ought to be fair for me.5Though old fashioned, the phrase has made something of a modern revival of late in the fascinatingly tumultuous world of post-"TwiqbaF'6 federal pleading practice. The U.S. Supreme Court in Twiqbal announced that federal claimants may not plead in a cursory, conclusory fashion, but must instead supply enough facts in their pleadings to '"nudge [] [their] claims'. . . 'across the line from conceivable to plausible."'7 This whole business of "plausibility" has left courts and scholars in quite a state of anxiety.8 And it has created a fair measure of uncertainty for plaintiffs struggling to decode the right way to plead "plausibly."9But the pleading stage does not end with the claim. The Federal Rules of Civil Procedure prescribe that defending parties must counterplead, with their answer, to the claim's accusations.10 In doing so, must a defending party's answer confront this brave new world of "plausibility" pleading? Should defending parties have to "nudge" their defenses across the line into "plausibility" in the same way that claimants must nudge their complaints? Isn't that the fair and just thing to require? After all, in the words of several of the federal district judges who have weighed in on this issue already, isn't "what is sauce for the goose sauce for the gander"?11This question has not been squarely addressed by the U.S. Supreme Court in Twombly,12 Iqbal,12 or any subsequent Court opinion. Nor has it yet been directly confronted by any U.S. court of appeals. Rather, this interpretative job has remained, to date, only the labor of the federal district courts, and they have written on the question aplenty. Their work is an intriguing story, complete with a curious minority-to-majority trending-line twist at the end. But their work is also a tale of disuniformity. And in that lack of uniformity, much mischief lurks.Part II of this Article illustrates the incoherence of the national courts on the issue of Twiqbal's applicability to the pleading of affirmative defenses, and explains why this incoherence poses worrisome risks in federal civil litigation.14 Part III selects an exemplar case decision as a vehicle for examining this issue. …