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Page 442 DEFENSE COUNSEL JOURNAL–October 2012(1) Fairness to the PartiesIn essence, this simplistic rationale isbased upon common sense. Some courtshave stated that it would be inequitable tohold plaintiffs to a higher pleadingstandard than defendants. Such a rationalearguably is grounded in Twombly’sNoble, Inc. v. LSI Corp., No. C-11-2709EMC, 2012 WL 359713 (N.D. Cal. Feb. 2,2012); Schlief v. Nu-Source, Inc., No. 10-4477, 2011 WL 1560672 (D. Minn. Apr. 25,2011); Dion v. Fulton Friedman & GullaceLLP, No. 11-2727 SC, 2012 WL 160221(N.D. Cal. Jan. 17, 2012); Smith v. Mustang,Independent School District No. I-69, No.CIV-11-1146-M, 2012 WL 10848 (W.D.Okla. Jan. 3, 2012); Haley Paint Co. v. E.I.DuPont De Nemours and Co., 279 F.R.D. 331,336 (D. Md. 2012); Puryear v. Indiana PalletCo., No. 2:11-CV-12-PRC, 2011 WL 5553697(N.D. Ind. Nov. 15, 2011); Aguilar v. CityLights of China Restaurant, Inc., No., DKC11-2416, 2011 WL 5118325 (D. Md. Oct. 24,2011); Microsoft Corp. v. Lutian, No. 1:10CV 1373, 2011 WL 4496531 (N.D. Ohio Sept.27, 2011); Cassetica Software, Inc. v.Computer Sciences Corp., No. 11 C 2187,2011 WL 4431031 (N.D. Ill. Sept. 22, 2011);J&J Sports Productions, Inc. v. Martinez, No.CV-F-11-00676-LJO-SMS, 2011 WL4373960 (E.D. Cal. Sept. 19, 2011); Barry v.EMC Mortg., No. DKC 10-3120, 2011 WL4352104 (D. Md. Sept. 15, 2011); Gessele v.Jack in the Box, Inc., No. 3:10-cv-960-ST,2011 WL 3881039 (D. Ore. Sept. 2, 2011);Bottoni v. Sallie Mae, Inc., No. C10-03602LB, 2011 WL 3678878 (N.D. Cal. Aug. 22,2011); Lucas v. Jerusalem Café, LLC, No.4:10-CV-00582-DGK, 2011 WL 3511059(W.D. Mo. Aug. 10, 2011); Barnett v.Uniformed Services University of the HealthSciences, No. DKC 10-2681, 2011 WL3511049 (D. Md. Aug. 9, 2011); Francisco v.Verizon South, Inc., No. 3:09cv737, 2010 WL2990159 (E.D. Va. July 29, 2010).acknowledgment of “the need for fairnotice” in a plaintiff’s Complaint, andthat such a concern should be equallyapplied to defendants. 31 The reasoning issimple. Just as a defendant faced with afactually deficient Complaint, a plaintiffshould not have to respond to defensesthat lack factual support. 32In U.S. v. Quadrini, the district courtreasoned that the same pleading standardsmust apply to defendants and plaintiffs“otherwise a court could not make a Rule12(f) determination on whether anaffirmative defense is adequately pleadedunder Rules 8 and/or 9 and could notdetermine whether the affirmativedefense would withstand a Rule 12(b)(6)challenge.” 33 Accordingly, “[l]ike theplaintiff, a defendant also must pleadsufficient facts to demonstrate a plausibleaffirmative defense, or one that has a‘reasonably founded hope’ of success.” 34(2) Textual ConsistencyApplication of the same pleadingstandard to defendants and plaintiffs,alike, is also found by a textualcomparison of the relevant pleading rules.Courts using the textual approach reasonthat because both Rule 8(a)(2) and Rule8(b) of the Federal Rules of CivilProcedure require a “short and plain”statement in the pleading of claims and31 See LSI, 2012 WL 359713 (“[g]iving fairnotice to the opposing party would seem toapply as well to affirmative defenses given thepurpose of Rule 8(b)’s requirements fordefenses.”).32 See Francisco, 2010 WL 2990159 at *6.33 No. 2:07-CV-13227, 2007 WL 4303213(E.D. Mich. Dec. 6, 2007).34 Id.
Fending off the Use of a Rule 12(f) Page 443affirmative defenses, it follows that bothplaintiffs and defendants must pleadsufficient facts to put the other side onnotice of the basis of their defenses andclaims. 35 Such an approach requires adefendant to plead sufficient facts insupport of its defenses as “both its nonconclusoryfactual content and thereasonable inferences from that content,must plausibly suggest a cognizabledefense available to the defendant.” 36For example, in Aguilar v. CityLights of China Restaurant, the courtnoted that while Rules 8(a) and 8(b) were“not identical,” they contained “importanttextual overlap, with both subsectionsrequiring a ‘short and plain’ statement ofthe claim or defense.” 37 In addition, thecourt noted that Form 30, which isappended to the Federal Rules pursuant toRule 84, “strongly suggests that barebonesassertions of at least someaffirmative defenses will not suffice, asthe Form’s illustration of a statute oflimitations’ defense sets forth not only thename of the affirmative defense, but alsofacts in support of it.” 38 Similarly, inHayne v. Green Ford Sales, the districtcourt similarly applied Twombly toaffirmative defenses, in part because Rule8(b)(1)(A), which governs pleadingdefenses generally, contains the same35 See Barnes v. AT&T Pension Ben. Plan-Nonbargained Program, 718 F. Supp.2d 1167,1171 (N.D. Cal. 2010) (applying Twombly toaffirmative defenses and equating Rule 8(a)(1)and Rule 8(b)(1)).36 Haley Paint Co., 279 F.R.D. at 336.37 No. DKC 11-2416, 2011 WL 5118325, *3(D. Md. Oct. 24, 2011).38 Id.“short and plain” statement that isrequired of plaintiffs. 39(3) Preservation of ResourcesOther courts have adopted theheightened pleading standard to helpstreamline more complex factual disputesto the issues capable of being reasonablysupported at the earliest stage. In the viewof such courts, applying the heightenedpleading standard to affirmative defensesserves the policy goals of Twombly/Iqbalin promoting litigation efficiency, inerasing boilerplate affirmative defenses,and in eliminating or at least limitingunnecessary discovery. 40 In applying aheightened pleading standard toaffirmative defenses, the district court inHCRI TRS Acquirer v. Iwer noted thatTwombly and Iqbal were “designed toeliminate the potential high costs ofdiscovery associated with meritlessclaims,” and that “[b]oilerplateaffirmative defenses that provide little orno factual support can have the samedetrimental effect on the cost of litigationas poorly worded complaints.” 41 Byreducing the number of affirmativedefenses to only those with factualsupport, courts may believe that they arenarrowing the issues for the parties andfulfilling the policy goals of Twombly andIqbal. Of course, eliminating a practicethat has survived for so long is never thatsimple. In many defendants’ view, the39 263 F.R.D. 647, 650 (D. Kan. 2009).40 See HCRI TRS Acquirer, LLC v. Iwer, 708F. Supp.2d 687, 691 (N.D. Ohio. 2010).41 Id.; see also Barnes, 718 F. Supp.2d at 1172(applying heightened pleading standardweeded out boilerplate listing of affirmativedefenses).
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