Just as boilerplate complaints will no longer work in federal court, formulaic affirmative defenses may be on the way out as well.
Two magistrate judges in Virginia, one in the Eastern District and the other in the Western District, ruled recently that the pleading standards set by the U.S. Supreme Court in Bell Atlantic v. Twombly and Ashcroft v. Iqbal apply to affirmative defenses as well as complaints.
Those cases held that pleadings must contain facts that show an alleged claim is plausible; a conclusory statement that an action establishes liability is not enough.
Magistrate Judge James G. Welsh in a sex discrimination case in Harrisonburg and Magistrate Judge M. Hannah Lauck in a racial discrimination case in Richmond said the application of “Twiqbal” to affirmative defenses is an issue bubbling in the lower federal courts.
No appellate court has weighed in on it yet, but the majority of lower courts have extended the rationale to affirmative defenses, Welsh and Lauck wrote.
Lauck did so with considerable trepidation about extended battles over the sufficiency of pleadings. “It is the Court’s firm hope that litigants will continue to develop the heart of their claims rather turn to secondary events to gain litigative advantage,” she said. “Undue motions practice by either always fails to serve the interest of justice.”