February 2011
Pleading Standards for Affirmative Defenses
Earlier this year, we analyzed the United States Supreme Court opinions in Bell Atlantic Corp. v. Twombly (550 U.S. 544 (2007)), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and questioned whether the “pleading standards of plausibility” announced in those opinions spelled the demise of notice pleadings in federal courts. An equally valid question is whether the pleading standard should apply to affirmative defenses– a particularly important part of the pleadings in any products liability case.
This year, both the Eastern District and Western District of Virginia have joined a handful of other federal district courts determining the application of the Twombly/Iqbal pleading standard to a defendant's affirmative defenses under Fed. R. Civ. Pro. 8(b). In Odyssey Imaging, LLC v. Cardiology Associates of Johnston, LLC, 2010 U.S. Dist. LEXIS 125175 (W.D. Va. 2010), Judge Samuel C. Wilson, decided that this new pleading standard was inapplicable to affirmative defenses under Rule 8(b). Odyssey Imaging involved a simple contract action in which the defendant, Cardiology Associates, filed two counter-claims and nineteen affirmative defenses as part of its answer. The court struck the counter-claims under Twombly/Iqbal, but used a different standard in addressing the various affirmative defenses filed by the defendant.
The Odyssey Imaging court reasoned, “Rule 8’s language governing the pleading of defenses does not track the language of Rule 8(a) governing the pleading of claims…..[b]ecause Rules 8(b) and 8(c) do not require a party to ‘show’ that it is entitled to a defense.” Instead, the opinion noted that the “court simply looks to whether those defenses are contextually comprehensible.” The court went on to note that Iqbal and Twombly addressed only Rule 8(a)(2) governing claims, which states that “[a] pleading that states a claim for relief must contain…a short and plain statement of the claim showing that the pleader is entitled to relief.” Thus, when alleging a counter-claim, the court should look to whether facts are pleaded to show the plausibility of the counter-claim. However, when affirmative defenses are involved, only “notice to the opposing party” is required.
It should be noted that the Odyssey Imaging opinion contradicts other magistrate judge opinions in the Eastern and Western District Courts in Virginia. See, e.g., Palmer v. Oakland Farms, 2010 U.S. Dist. LEXIS 63265 (W.D. Va. 2010) and Francisco v. Verizon South, Inc., 2010 U.S. Dist. LEXIS 77083 (E.D. Va. 2010) (following the majority of other district courts in holding that "considerations of fairness, common sense and litigation efficiency underlie Twombly and Iqbal and suggest that the same heightened pleading standard should also apply to affirmative defenses").
These rulings, on the heels of Twombly/Iqbal, will change the way defendants think about pleading affirmative defenses. Though Virginia courts are divided on this issue, a thorough fact investigation immediately upon receipt of a new complaint would be prudent. Then, a short description of the facts known at the outset should be pleaded along with affirmative defenses. This undefined standard imposes a duty on clients to work closely with their counsel as soon as they are served and on counsel to make detailed factual inquiries in the first days of a new engagement; a party should plead the claims and defenses as specifically as possible to safeguard against waiver or dismissal of these pleadings under this fluctuating standard.
Please feel free to contact Matt Hundley, or any of our attorneys at Moran Reeves & Conn about this article or any of the cases cited.