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District judge rejects ‘Twiqbal’ for affirmative defenses

An Alexandria U.S. District Court judge says the heightened pleading standard under Twombly and Iqbal does not apply to affirmative defenses.

Last year, magistrate judges in both the Eastern and Western Districts of Virginia said the standard – which requires plaintiffs to plead facts that show an alleged claim is plausible – also should apply to affirmative defenses in a defendant’s answer.

However, Roanoke U.S. District Judge Samuel G. Wilson said in Odyssey Imaging LLC v. Cardiology Assoc. of Johnston LLC that the stricter “plausibility” standard does not apply to affirmative defenses.

The issue has split federal courts around the U.S., and several district courts in the 4th Circuit have found the same standard should apply to affirmative defenses, often with the rationale that what’s good for the goose is good for the gander.

Now Senior U.S. District Judge James C. Cacheris says he is voting with the “minority view.” In Lopez v. Asmar’s Mediterranean Food Inc., Cacheris denied a motion to strike an employer’s affirmative defenses in an overtime-pay suit under the Fair Labor Standards Act.

Fairness, common sense and litigation efficiency may be compelling policy considerations to support use of the same standard for affirmative defenses as is applied to pleading claims for relief, Cacheris acknowledged in his Jan. 10 opinion.

Problem is, the language in the rule that governs pleading affirmative defenses is different from the language in the rule that covers the complaint. Instead of calling for a statement that shows “the pleader is entitled to relief,” Rule 8(b)(1)(A), on affirmative defenses, only requires a “short and plain” statement of “defenses to each claim.”

The analyses in Twombly and Iqbal did not even touch on the rule on affirmative defenses, Cacheris said. Those cases “did not introduce the requirement of showing entitlement to relief under Rule 8(a)(2), they interpreted it,” he wrote.

It remains the case, Cacheris said, that under Rule 8(b)(1)(A), an 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.”

By Deborah Elkins

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