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Twiqbal does NOT apply to affirmative defenses, judge holds

Breaking with other Virginia federal judges who have considered the issue, Roanoke U.S. District Judge Samuel Wilson has decided the stricter “plausibility” standard used to judge civil complaints does not apply to affirmative defenses.

The ruling may be cold comfort for a defendant in a contract dispute case where Wilson tossed the party’s counterclaims and most of its affirmative defenses. Nevertheless, Wilson says there is a reason not to weigh affirmative defenses on the same scale as a plaintiff’s claims.

“Knowledge at the pleading stage is often asymmetrical, disproportionately favoring the pleading of a claim by a plaintiff who has had the opportunity to time its filing. While the plaintiff often can conduct an investigation before filing the complaint to ensure its allegations are adequately supported, the defendant must respond quickly after being served,” Wilson wrote.

Nevertheless, affirmative defenses still are subject to scrutiny under Rules 11 and 12 of the Federal Rules of Civil Procedure, Wilson said. In the case at hand, Wilson found only two of the defendant’s 19 affirmative defenses to  be “contextually comprehensible” so as to survive a motion to strike.

As VLW reported this summer, two U.S. magistrate judges from both the Eastern and Western Districts have held that the Twombly-Iqbal pleading standard applies with equal force to affirmative defenses.

-By Peter Vieth

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