Defense Counsel Journal - International Association of Defense ...

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