Defense Counsel Journal - International Association of Defense ...

Page 444 DEFENSE COUNSEL JOURNAL–October 2012premature elimination of defenses is akinto throwing the baby out with the bathwater. More to the point, the harsh resultof having one’s defenses stricken cannotpossibly be justified in the absence ofmeaningful discovery. So say thedefendants, in any case.(4) Harsh ResultsClearly, applying the heightenedpleading standard to affirmative defensescan lead to harsh results for a defendant.In Aguilar v. City Lights of ChinaRestaurant, the court struck fiveaffirmative defenses: accord andsatisfaction, estoppel, laches,payment/offset, and fraud. 42 As to thefirst four defenses, the court held thatthey were “conclusory legal statementswholly devoid of any supporting factualcontent.” 43 Similarly, in Puryear v.Indiana Pallet Co., 44 the district courtstruck the affirmative defenses of failureto state a claim upon which relief can begranted and the applicable statute oflimitations, finding the former defense a“bare bones assertion,” insufficient tosurvive the heightened pleadingstandard. 45 The court also found that thestatute of limitations defense wasinsufficient as it “fail[ed] to cite to theapplicable statute of limitations, the timelimits in the statute, or the manner inwhich the statute bars Plaintiff’s case.” 46This sets up the proverbial situationof being “stuck between a rock and a hard42 Aguilar, 2011 WL 5118325 at *4.43 Id.44 No. 2:11-CV-12-PRC, 2011 WL 5553697(N.D. Ind. Nov. 15, 2011).45 Id. at *1.46 Id.place.” If the heightened pleadingstandard applies to affirmative defenses,then a defendant may be caught betweenrisking waiver by failing to plead anaffirmative defense, and the courtpotentially finding that an affirmativedefense with no apparent factual supportshould be stricken. Thankfully, a numberof persuasive arguments can be made insupport of the position that Twombly andIqbal do not apply to the pleading ofaffirmative defenses.V. The Defendants’ OppositionAn increasing number of districtcourts have declined to apply theheightened pleading standard ofIqbal/Twombly to a defendant’saffirmative defenses. 47 Accordingly, a47 Recent district court decisions declining toapply the heightened pleading standard ofTwombly/Iqbal to affirmative defenses includethe following: Meas v. CVS Pharmacy, Inc.,No.11cv0823 JM(JMA), 2011 WL 2837432(S.D. Cal. July 14, 2011); Holdbrook, 2010WL 865380; Michaud v. Greenberg & Sada,P.C., No. 11-cv-01015-RPM-MEH, 2011 WL2885952 (D. Colo. July 18, 2011); Ioselev v.Schilling, No. 3:10-cv-1091-J-34MCR, 2011WL 5855342 (M.D. Fla. Nov. 22, 2011);Cottle, 2012 WL 266968; Bayer CropscienceAG v. Dow Agrosciences, LLC, No. 10-1045RMB/JS, 2011 WL 6934557 (D. Del. Dec. 30,2011); United States v. Center for DiagnosticImaging, Inc., No. C05-00558RSL, 2011 WL6300174 (W.D. Wash. Dec. 16, 2011);Whitserve, LLC v. GoDaddy.com, Inc., No.3:11-CV-948 (JCH), 2011 WL 5825712 (D.Conn. Nov. 17, 2011); Brossart v.DIRECTTV, No. 11-786 (DWF/JJK), 2011WL 5374446 (D. Minn. Nov. 4, 2011); Arosv. United Rentals, Inc., No. 3:10-CV-73(JCH), 2011 WL 5238829 (D. Conn. Oct. 31,2011); Sony/ATV Music Pub. LLC v. D.J.