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Page 446 DEFENSE COUNSEL JOURNAL–October 2012defendant’s affirmative defenses wouldonly encourage motions to strike, whichis entirely counter to the well-establishedstandard that such motions are stronglydisfavored.(2) Textual SupportWhether textual support or tealeaves, the cases of Twombly and Iqbalmay be read differently by differentpeople. The simple truth is that neitherTwombly nor Iqbal addressed thepleading of affirmative defenses. Theholdings of Twombly and Iqbal applied tothe pleading requirements of a plaintiff’sComplaint under the “short and plainstatement” requirement of Federal Rule8(a)(1), when attacked by a Rule 12(b)(6)motion to dismiss. Both cases were silentas to whether the ruling extended toaffirmative defenses. 51 One mightlogically argue, then, that since Twomblyand Iqbal did not address the pleadingstandards of affirmative defensespursuant to Rule 8(c), “Iqbal andTwombly have no application to thepleading requirements of Rule 8(c).” 52In comparing the relevant federalrules, courts have found a distinctionbetween Rule 8(a)(2), which requires thepleader to show entitlement to relief, andRule 8(b)(1), which only requires astatement of affirmative defenses “inshort and plain terms.” In Enough forEveryone. v. Provo Craft & Novelty, thedistrict court held that, in the absence ofguidance from any Court of Appeals, and51 See Davis v. Indiana State Police, 541 F.3d760, 763-764 (7th Cir. 2008) (noting thatTwombly did not address affirmativedefenses).52 See Chiancone, 2011 WL 4436587 at *4.given the split in the district courts, thequestion as to whether to apply Twombly“is best resolved by reference to the textof the Federal Rules.” 53 In reading thefederal pleading rules, the court held that:… the sub-parts of the ruleappear to demand more from aparty stating a claim for relief,i.e., the party stating a claimmust show he or she is entitledto relief. In contrast, a partystating a defense need notshow he or she is entitled torelief, but need only state anydefense, and state each defensein short and plain terms. 54Given this distinction, the courtconcluded that the Twombly/Iqbalheightened pleading standard did notapply to affirmative defenses. 55 Thisretreat to the fair notice standard of years53 SA CV 11-1161 DOC, 2012 WL 177576,*2 (C.D. Cal. Jan. 20, 2012).54 Id. (emphasis in original).55 Id. See also Schlief, 2011 WL 1560672 at*9 (declining to apply Twombly to affirmativedefenses and noting that “language inFED.R.CIV.P. 8(a) that provided the basis forthe Supreme Court’s decisions does not appearin Rule 8(b) or 8(c), which govern defenses”);Unicredit Bank AG v. Bucheli, No. 10-2436-JWL, 2011 WL 4036466, *5 (D. Kan. Sept.12, 2011) (comparing Rule 8(a)(2), Rule 8(b)and Rule 8(c) and finding differences “providea textual basis for a less rigorous pleadingstandard.”); Meas, 2011 WL 2837432 (findingthat neither Rule 8(a) or Rule 8(b) contained“language that precisely corresponds to Rule8(a)’s language requiring the pleader ‘show’that he is entitled to relief”).
Fending off the Use of a Rule 12(f) Page 447gone by sounded a comforting note todefendants. 56(3) Fair Notice, Not PlausibilityPrior to Twombly and Iqbal, courtshave held that the pleading of affirmativedefenses requires only “fair notice” of thedefense. 57 That only “fair notice,” ratherthan “plausibility,” be provided by thedefendant is grounded in a textual readingof the Federal Rules of Civil Procedure8(a) and 8(c), and should continue toapply even after Twombly and Iqbal. Thedistrict court explained this rationale inTyco Fire Products v. VictaulicCompany:In light of the differencesbetween Rules 8(a) and 8(c) intext and purpose, the Courtconcludes that Twombly andIqbal do not apply to affirmativedefenses. An affirmative defenseneed not be plausible to survive;it must merely provide fair noticeof the issue involved. . . . [T]herequisite notice is providedwhere the affirmative defense inquestion alerts the adversary to56 Baroness Small Estates, 2011 WL 3438873at *5–6 (defendant notified plaintiff of itsaffirmative defenses, which, while boilerplate,sufficed at the outset of the case).57 See Wyshak v. City Nat’l Bank, 607 F.2d824, 827 (9th Cir. 1979) (“[t]he key topleading an affirmative defense is to give theplaintiff fair notice of the defense.”); see alsoDavis v. Sun Oil Co., 148 F.3d 606, 612 (6thCir. 1998) (holding that sufficient notice ofdefense was provided by simple statement that“plaintiffs’ claims are barred by the doctrineof res judicata”).the existence of the issue fortrial. Providing knowledge thatthe issue exists, not preciselyhow the issue is implicated underthe facts of a given case, is thepurpose of requiring avermentsof affirmative defenses. Thus, theCourt will only strike defenseschallenged on sufficiencygrounds if they do not meet thislow standard. 58Consistent with this position, anumber of courts have held that fairnotice in pleading affirmative defensesand the heightened pleading standardsarticulated in Twombly and Iqbal do notapply to affirmative defenses. 59 Thesecourts have held that affirmativedefenses, when read in conjunction withthe Complaint, provide the plaintiff withsufficient notice required by the rule.“The affirmative defense must provideenough information such that the plaintiffis given ‘fair notice of what … the claimis and the grounds upon which it rests.’” 6058 777 F. Supp.2d at 900-901.59 See, e.g., Center for Diagnostic Imaging,2011 WL 6300174 at *2 (citing cases).60 See Puryear, 2011 WL 5553697 (quotingTwombly, 550 U.S. at 555); see alsoKaufmann v. Prudential Ins. Co. of America,No. 09-10239-RGS, 2009 WL 2449872, *1(D. Mass. Aug. 6, 2009) (“[w]ith theexception of fraud, the designation of a listeddefense is sufficient notice to a plaintiff of itsbasic thrust.”); Barnhart v. American HomeMortg. Servicing, Inc., No. 2:11-cv-569-FtM-99SPC, 2012 WL 366930, *2 (M.D. Fla. Feb.3, 2012) (stating that Rule 8 obligates adefendant to provide “fair notice” rather than“detailed factual allegations” in his affirmativedefenses); Ioselev, 2011 WL 5855342 at *2(holding that the statement that a claim “is
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