The US Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. lqbal, 556 U.S. 662 (2009) to tighten the relaxed standards of “notice pleading” in federal civil action resolved a pre-existing split in the lower courts. But, the split continued after Towmby over whether to apply a “plausibility standard” to the pleading of affirmative defenses. Many district courts extended Twombly to defense pleadings, but the courts that have declined to extend the plausibility standard have gained ground and the split remains.
Federal Rules of Civil Procedure (FRCP), Rule 8(c)(1) requires a party to “affirmatively state any avoidance or affirmative defense” when responding to a pleading. The party asserting an affirmative defense generally has the burden of proof. If not appropriately and timely presented, the defense might be waived.
It is not unusual for lawyers to plead every potential affirmative defense to prevent a waiver. However, the Federal Rules of Civil Procedure do not allow this tactic or the assertion of boilerplate affirmative defenses.
Specifically, Rule 11 of the FRCP states that a lawyer who presents to the court a “pleading, written motion, and other paper” confirms “to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the “claims defenses and other legal contentions are warranted by existing law” and that the “factual contentions have evidentiary support after a reasonable opportunity for further investigation or discovery.”
FRCP Rule 11(b) Representations to the Court.
By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
If Rule 11 is violated, the court may sanction a lawyer. See Fed. R. Civ. P. 11(c)(1), (3).
Rule 12(f) motions to strike have been used to eliminate non-complying affirmative defenses.
FRCP Rule 12(f) provides:
“The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.”
When a court strikes an affirmative defense, leave to amend should be freely given so long as there is no prejudice to the moving party. Wyshak v. City Nat’l Bank, 607 F.2d 824, 826 (9th Cir. 1979); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to amend] when justice so requires.”).
“The Ninth Circuit has long held that “[t]he key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense. Wyshak, 607 F.2d at 827.
“Following the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which announced a heightened pleading standard for complaints, the courts in this district have generally applied the Twombly/Iqbal pleading standard to affirmative defenses.”
Goobich v. Excelligence Learning Corp., 482 F. Supp. 3d 986 (N.D. Cal. 2020)
Using this standard, affirmative defenses must contain sufficient facts to state a
defense “that is plausible on its face.”
“This standard serves to weed 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 v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010)
In United States ex rel. Patzer v. Sikorsky Aircraft Corp., 382 F. Supp. 3d 860, 868 (E.D. Wis. 2019), a US District Court in Wisconsin struck boilerplate affirmative defenses that lacked a “short and plain statement of the facts and...the necessary elements of the defenses.”
The District Court was following the Seventh Circuit Court of Appeals precedent that required defendants to allege the factual basis for the defense. Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989).
District Court Judge Adelman struck the defendant’s affirmative defenses reluctantly, stating:
“I would like to find that the defendants have adequately pleaded their defenses. However, under Seventh Circuit precedent, affirmative defenses must be pleaded with more detail than the defendants have supplied here. Therefore, I will strike the defenses. But because the defendants could cure this pleading deficiency, I will grant them leave to amend.”
Although the Sixth Circuit Court of Appeals has not expressly followed the Seventh Circuit’s strict position on pleading affirmative defenses, Williams v. Provident Inv. Counsel, Inc., 279 F. Supp. 2d 894 (US Dist. Court, ND Ohio 2003) adopted the test found in Renalds v. S.R.G. Restaurant Group, Chicago, LLC, 119 F.Supp.2d 800, 802 (N.D.Ill.2000) (citing Heller, supra at 1294).
(1) the matter must be properly pleaded as an affirmative defense; (2) the matter must be adequately pleaded under the requirements of Federal Rules of Civil Procedure 8 and 9; and (3) the matter must withstand a Rule 12(b)(6) challenge —in other words, if it is impossible for defendants to prove a set of facts in support of the affirmative defense that would defeat the complaint, the matter must be stricken as legally insufficient.
In the case of Greenspan v. Platinum Healthcare Group, LLC., No. 2: CV-05874-JDW (E.D. Pa. March 16, 2021 Wolson, J.) the court struck Affirmative Defenses from a Federal Court Answer filed by a Defendant in a case where the defendant failed to assert any allegations or cite any facts or evidence that would give rise to a good faith basis to plead the defenses that were asserted.
The court found that Defendant's Affirmative Defenses violated Rule 11 as they were pled with conditional language ("[t]o the extent that discovery and/or investigation may reveal.") that indicated that Defendant did not have evidence to support the assertion of the defenses at the time. Rather, the court seems to indicate that it felt that boilerplate defenses had been pled in the case.
The court ended the opinion by noting that “Pleadings are not an opportunity for lawyers to throw things against the wall and see what sticks.” The court noted that Rule 11 requires lawyers to give some thought to the assertions included in pleading before they are filed.
“The assertion of prophylactic affirmative defenses is not harmless. It expands discovery in the case and makes it harder to get cases to resolution. A plaintiff's lawyer faced with a multitude of prophylactic affirmative defenses has to serve interrogatories to ferret out the factual basis for each defense.”
