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Fending off the Use of a Rule 12(f) Motion to StrikeAffirmative DefensesBy Peter M. Durney andJonathan P. MichaudTHIS ARTICLE addresses potentiallyeffective arguments a defendant mayraise when confronted with a motion tostrike affirmative defenses based upon theSupreme Court’s decisions in BellAtlantic Co. v. Twombly 1 and Ashcroft v.Iqbal. 2 As most litigators by now know,in Twombly, the Supreme Court held thatin order to withstand a motion to dismiss,a plaintiff must plead sufficient facts in acomplaint to allege “a plausibleentitlement to relief.” 3 Plaintiffs havesince argued, with some success, that thisheightened pleading standard applies withequal force to a defendant’s affirmativedefenses. Facing such a motion early onin litigation can present myriad problemsfor a defendant. Upon being properlyserved with a Summons and Complaint,without the benefit of discovery and withonly twenty-one days to file an answer infederal court, defendants to a large extentmust anticipate the proof and raiseappropriate defenses in somewhat of avacuum. Yet, should an aggressiveopponent immediately challenge some ofthose defenses, the very real prospectlooms of possibly losing otherwise validaffirmative defenses, should an offensemotion be successful. This articlediscusses the various rationales used byfederal district courts in deciding suchmotions and considers how a defendant1 550 U.S. 544 (2007).2 556 U.S. 662 (2009).3 550 U.S. at 559.Peter M. Durney hasbeen a partner at Cornell& Gollub in Boston since1987. He has representedhundreds of domestic andforeign corporations inthe state and federalcourts in each of the NewEngland states and elsewhere in the U.S.His broad litigation experienceencompasses personal injury, productsliability, medical device, automotive,marine and commercial litigation,professional malpractice and appellatework.Jonathan P Michaud is anassociate in the productsliability and toxic tortpractice group at Cetrulo& Capone LLP in Boston,Massachusetts. In thatcapacity, he is part of ateam of attorneys thatdefend and advise clients on a local,regional and national level and act asdefense liaison counsel for asbestosactions in Massachusetts and RhodeIsland.may best fend off such an attack to ensurethat its affirmative defenses are preservedat least until adjudicated on the merits.I. The Heightened PleadingStandard under Twombly/IqbalIn Twombly, the Supreme Courtconsidered the pleading standardsufficient to satisfy the requirement that aplaintiff make “a short and plain
Fending off the Use of a Rule 12(f) Page 439statement of the claim that the pleader isentitled to relief.” 4 The Supreme Courtheld that in order to survive a motion todismiss pursuant to Federal Rule of CivilProcedure 12(b)(6), a plaintiff must pleadsufficient facts “to raise a right to reliefabove the speculative level.” 5 Thisstandard “requires more than labels andconclusions,” such that “a formulaicrecitation of the elements of a cause ofaction will not do.” 6 Thus, the Twomblycourt expressly retired the longestablished standard established set forthin Conley v. Gibson, 7 which held that apleading should not be dismissed “unlessit appears beyond doubt that the plaintiffcan prove no set of facts in support of hisclaim which would entitle him to relief.” 8The new heightened pleadingstandard subsequently was clarified inIqbal, as the Supreme Court reiteratedthat a plaintiff’s “complaint must containsufficient factual matter, accepted as true,‘to state a claim to relief that is plausibleon its face.’” 9 The Iqbal court furtheroutlined the two underlying principles ofTwombly. First, in evaluating thesufficiency of a complaint, bare legalconclusions that do nothing more thanrecite the elements of a cause of actionare not entitled to an assumption oftruth. 10 Second, a complaint must containsufficient factual allegations to allow acourt to infer that it states a “plausible4 Id. at 557; FED.R.CIV.P. 8(a)(2).5 Twombly, 550 U.S. at 555.6 Id. at 556.7 355 U.S. 41, 45-46 (1957).8 Twombly, 550 U.S. at 563 (citing Conley).9 Iqbal, 556 U.S. at 1949 (quoting Twombly,550 U.S. at 563).10 Id. at 1940 (citing Twombly, 550 U.S. at555).claim for relief.” 11 Courts considering amotion to dismiss were thereby directedto engage in a two-pronged analysis: (1)to identify legal conclusions that are notentitled to an assumption of truth; and (2)to identify factual allegations anddetermine if, taken as true, “theyplausibly give rise to an entitlement torelief.” 12 The Circuit Courts of Appealhave not ruled on whether the heightenedpleading standard of Twombly/Iqbalapplies to the pleading of affirmativedefenses, and there is fairly evendisagreement between, and even within,the United States district courts. 13II.Affirmative DefensesFederal Rule of Civil Procedure8(b)(1)(A) requires a party responding toa pleading to “state in short and plainterms its defenses to each claim assertedagainst it.” 14 Rule 8(c)(1) states that adefendant “must affirmatively state anyavoidance or affirmative defense,” andprovides a list of nineteen affirmativedefenses. 15 However, this list of11 Id. at 1950.12 Id.13See, e.g., Cottle v. Falcon HoldingsManagement, LLC, No. 2:11-CV-95-PRC,2012 WL 266968, *1 (N.D. Ind. January 30,2012) (noting split among district courts onissue).14 Rule 9(b) provides that certain defenses,fraud, mistake, and condition of the mind,must be plead with particularity.15 Those affirmative defenses are “accord andsatisfaction; arbitration and award; assumptionof risk; contributory negligence; discharge inbankruptcy; duress; estoppel; failure ofconsideration; fraud; illegality; injury byfellow servant; laches; license; payment;release; res judicata; statute of frauds; statute
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