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‘Twiqbal’ guide cuts both ways

If plaintiff’s attorneys have to be more specific in their federal complaints, defense attorneys have a duty to be just as precise in their answers.

Virginia federal courts are starting to weigh in on an issue that is splitting the federal courts: whether the more stringent pleading standards recognized in the shorthand “Twombly-Iqbal” formulation can be used to strike affirmative defenses.

In recent weeks, a magistrate judge in each of Virginia’s federal districts has held that the heightened pleading standards set by the U.S. Supreme Court in Bell Atlantic v. Twombly in 2007 and Ashcroft v. Iqbal and 2009 apply to affirmative defenses as well as complaints.

The standard means pleadings must contain facts that show an alleged claim is plausible.

A bare assertion that an action establishes liability is not enough. A plaintiff must allege “more than labels and conclusions,” not merely recite the elements of a cause of action.

By the same token, defense attorneys must do more than simply recite an affirmative defense, according to Magistrate Judge James G. Welsh, who ruled in a sex discrimination case in Harrisonburg, and Magistrate Judge M. Hannah Lauck, who held some asserted defenses lacking in a racial discrimination case in Richmond.

In Francisco v. Verizon South Inc. (VLW 010-3-396), Lauck catalogs more than two dozen case on the issue, with a ratio of almost three-to-one imposing the higher pleading standard for defendants.

Francisco, decided last month, and Palmer v. Oakland Farms Inc. (VLW 010-3-397) decided a month earlier by Welsh, appear to be the only cases from Virginia – or within the states covered by the 4th U.S. Circuit Court of Appeals – to address the point. No appellate court has spoken.

In Palmer, the plaintiff alleges she had been wrongfully discharged from her job as a milker in violation of Virginia public policy and as a result of sex discrimination.

The defendant countered with 16 affirmative defenses, including such boilerplate as, “The actions of which Plaintiff complains were justified by legitimate, non-discriminatory business reasons” and “Plaintiff unreasonably failed to take advantage of any preventive of corrective opportunities provided by Defendants.”

“[E]ach is too conclusory to provide fair notice to the plaintiff, and each fails to contain a factual basis entitling it to be assumed to be true,” Welsh said.

Welsh also found wanting defenses that the plaintiff was an employee at will or contributorily negligence. In the context of the complaint and in the absence of more detail, the defenses were immaterial, Welsh said.

In Francisco, Lauck quoted Welsh in striking most of a similar laundry list of defenses.

Both judges acknowledged good arguments for applying different standards for complaints and affirmative defenses. Federal Rule of Civil Procedure 8(b), the provision that governs answers to complaints, says nothing about facts, and developing facts within the 21 days defendants have to answer a complaint can be difficult, they said.

But, Welsh wrote, “the considerations of fairness, common sense and litigation efficiency underlying Twombly and Iqbal strongly suggest that the same heightened pleading standard should also apply to affirmative defenses.”

Both judges emphasized waiver of a defense is unlikely because defendants can request leave to amend their defenses if discovery reveals an unexpected one.

Lauck said she hoped her ruling would encourage litigants to “develop the heart of their claims” rather than engage in “undue motions practice.”

Marshall Ross, a Harrisonburg lawyer who is president of the Virginia Association of Defense Attorneys, said he shared Lauck’s concern about the expansion of motions practice in the wake of Twiqubal.

Such motions may delay resolution of a case for several months and run up litigation costs by thousands of dollars only to arrive at the same point after a plaintiff or defendant has been granted leave to amend his pleadings, Ross said.

Plaintiffs’ and defense attorneys should “work together to obtain the facts and cooperate as much as possible and not resort to litigation right out of the box,” he said.

Ross said that federal litigants are already under the strictures of good faith pleading set by Fed.R.Civ.P. 11. He said the Supreme Court of Virginia visited the same issue in 2007 in Ford Motor Co. v. Benitez (VLW 007-6-001) when it upheld sanctions against an attorney who pleaded the same defenses after a nonsuit when discovery had shown them to be meritless.

Betty S.W. Graumlich, the Richmond attorney who represented Verizon, said in an e-mail, “While we disagree with the Court’s ultimate disposition of the Motion, we appreciate Judge Lauck’s thoughtful analysis of the divergent cases from other jurisdictions that have addressed this issue and note that Judge Lauck did not hold that the Twombly standard applicable to the pleading of complaints applies to the same extent to the pleading of affirmative defenses or answers.

“Nonetheless, despite her tempered ruling, we share Judge Lauck’s concern that the ambiguity still surrounding this issue may invite additional motions practice on the sufficiency of responsive pleadings.”

Richmond lawyer Tim Shulte, who represents the plaintiff in Francisco along with Jay J. Levit, said the 25-interrogatory limit in the Eastern District was an impetus for the effort to get more precise affirmative defense information in answers. Asking defendants to elaborate on a boilerplate defense eats into the interrogatory quota, he said.

Extending Twiqbal to defense attorneys should mean that “early on people will plead more carefully and that’s probably a good thing,” he said. “It should lead to more clarity.… We have such a fast docket here that it’s good to know early what your case is about.”

But some plaintiff’s lawyers would rather hold the line on Twiqbal, according to Shulte. They reason that Twombly and Iqbal are terrible decisions and imposing the standards on defendants only validates them.

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