Does the Twiqbal Standard Apply to Motions to Strike Affirmative Defenses?
Updated: Oct 26, 2020
Which pleading standard applies to the pleading of affirmative defenses—Twombly’s reasonable plausibility standard, or Conley v. Gibson’s any set of facts notice-pleading? Id. 355 U.S. 41 (1957). While some courts have applied the Twombly/Iqbal standard to the pleading of affirmative defenses, the significant majority of court (including Colorado) do not. Rather, they retain the pre-Twiqbal standard from Conley that requires simple notice pleading.
Fed. R. Civ. P. 12(f) permits a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” “The purpose of Rule 12(f) is to save the time and money that would be spent litigating issues that will not affect the outcome of the case.” Kimpton Hotel Restaurant Group, LLC v. Monaco Inn, Inc., Case No. 07-cv-01514-WDM-BNB (D. Colo. Jan. 11, 2008). Striking a portion of a pleading is a drastic remedy - federal courts generally view motions to strike with disfavor and infrequently grant such requests. See 5C Arthur R. Miller, May Kay Kane, Federal Practice and Procedure § 1380 (3d ed. 2011). The District of Colorado explained that “[a]n affirmative defense is insufficient if, as a matter of law, the defense cannot succeed under any circumstances.” Unger v. US West, Inc., 889 F. Supp. 419, 422 (D. Colo. 1995). While case law on the potential to apply Twiqbal to affirmative defenses (and, in particular, to the affirmative defense of qualified immunity) remains unsettled and there is no clear, binding precedent in this district, Judge Babcock’s opinion in Holbrook v. SAIA Motor Freight Line, LLC, Case No. 09-cv-028790-LTB-BNB (D. Colo. Mar. 8, 2010), is the most persuasive precedent in this district.
In Holbrook, Judge Babcock advanced the common-sense argument that it is “reasonable to impose stricter pleading requirements on a plaintiff who has significantly more time to develop factual support for his claim than a defendant who is only given 20 days to respond to a complaint and assert its affirmative defenses.” Id. at *2. Judge Babcock concluded that an affirmative defense should not be held to the Rule 8(a)(2) standard as enhanced by and articulated in Twiqbal, and that applying the simple notice pleading standard from Conley was “the better-reasoned approach . . . particularly in light of the disfavored status of motions to strike.” Id. Additionally, while Plaintiffs enjoy the absolute right to amend their complaint under Rule 15(a) prior to any responsive pleading, there is no such right with respect to affirmative defenses, further suggesting that the Federal Rules anticipated a notice pleading approach to such defenses.
More recently—still absent clear guidance from the Tenth Circuit—the District of Colorado has again endorsed this distinction. See Teliax, Inc. v. Verizon Servs. Corp., Case No. 18-cv-00104-RM-MEH (D. Colo. Apr. 19, 2019) (Twiqbal standard does not apply to affirmative defenses pled in answers, citing Martinez v. Naranjo, 328 F.R.D. 581, 592 (D.N.M. 2018)). The closest the Tenth Circuit has come to directly addressing this issue is in Acosta v. Jani-King of Okla., Inc., where it noted that the “Twombly standard may have greater bite in such contexts [as qualified immunity], appropriately reflecting the special interest in resolving the affirmative defense of qualified immunity at the earliest possible stage of a litigation . . . [but] no such heightened Twombly standard applies here.” Id., 905 F. 3d 1156, 1160 (10th Cir. 2018) (denying the application of qualified immunity, but not expressly extending this holding to all affirmative defenses).
The most developed case law on this topic seems to come out of the Sixth Circuit. See, e.g., Sec’y of U.S. Dep’t of Labor v. Kavalec, Case No. 19-cv-00968 (N.D. Ohio Apr. 7, 2020). In Kavalec, the Northern District of Ohio noted that “[t]he majority of lower courts, however, have held that Iqbal and Twombly pleading requirements do not apply to affirmative defenses,” id. at *8, and provided the broad guidance that “general or boilerplate defenses are acceptable, even if they lack factual specificity, so long as it remains possible that the defenses that the defenses relate to the claim at hand.” id. at *9. The U.S. Court of Appeals for the Sixth Circuit has clearly weighed in on this issue, stating in Lawrence v. Chabot, 182 F. App’x 443, 456 (6th Cir. 2006), that “[a]n affirmative defense may be pleaded in general terms and will be held to be sufficient . . . as long as it gives plaintiff fair notice of the nature of the defense.”
Barring some significant and binding precedent that changes this situation, motions to strike affirmative defenses seem ill-advised unless the defense cannot apply to the claim as a matter of law. A much more productive tactic may be for plaintiff to seek discovery as to the specific factual basis for a given affirmative defense, and then for plaintiff to file a partial motion for summary judgment—possibly very early in the case—as to that defense to narrow the issues going forward. While certainly not every suspect affirmative defense should be the focus of a partial motion for summary judgment, the time and expense may be warranted where the existence of the defense at trial would give the defendant an evidentiary basis to introduce a harmful counterstory or evidence that may otherwise be irrelevant or inadmissible under F.R.E. 403 or on other grounds (e.g., unclean hands).