Defense Counsel Journal - International Association of Defense ...

Fending off the Use of a Rule 12(f) Page 449defenses pleaded at the outset, prior tomeaningful discovery.(4) Concerns of Twombly NotImplicatedIt also is important to educate thecourt on the potential waste of judicialresources that may result from theapplication of Twombly’s heightenedpleading standard to affirmative defenses.Some courts have expressed a concernthat the failure to apply the heightenedpleading standard to affirmative defenseswill result in delay and waste of thecourt’s and the parties’ resources.However, in raising the pleading standardin Twombly and Iqbal, the Supreme Courtintended to prevent unfounded cases fromproceeding to costly discovery. TheSupreme Court specifically noted the timeand expense of allowing an action toproceed to discovery, and stated thatwhen a plaintiff fails to plead sufficientfacts in a Complaint to show a plausibleentitlement to relief, “this basicdeficiency should … be exposed at thepoint of minimum expenditure of timeand money by the parties and the court.” 70The District Court, in Leon v.Jacobson Transportation Company,explained the rationale for not applyheightened pleading standard toaffirmative defenses as follows:70the driving force behindTwombly and Iqbal was to makeit more difficult to use a barebonescomplaint to open theTwombly, 550 U.S. at 558 (quoting 5WRIGHT AND MILLER, § 1216) (internalquotation marks omitted).gates to expensive discovery andforce an extortionate settlement.The point was to reduce nuisancesuits filed solely to obtain anuisance settlement. The Court,though, has never once lost sleepworrying about defendants filingnuisance affirmative defensesand considers the risk thatdefendants would file nuisancedefenses sufficiently small so asnot to warrant extendingTwombly and Iqbal. 71The concerns of Twombly simply arenot implicated by affirmative defenses. 72Other courts have stated thatapplying the heightened pleadingstandard to affirmative defenses almostcertainly guarantees the waste thatTwombly and Iqbal sought to eradicate.One District Court noted the following:To permit Plaintiffs to prevail onthis motion would create twounacceptable results: 1) Plaintiffswould be encouraged to continueto file Motions to Strike invirtually every case where adefendant had pleaded anaffirmative defense even whenthe plaintiff could easily discernthe bases for the defense; 2)Defendants would necessarilydelay filing answers until71 No. 10 C 4939, 2010 WL 4810600, *1(N.D. Ill. Nov. 19, 2010).72 See id.; see also Lane v. Page, 272 F.R.D.581, 596 (D. N.M. 2011) (“[D]ecidingwhether a complaint survives a motion todismiss may determine whether discovery willoccur at all, whereas an affirmative defense atmost affects the scope of discovery.”).