United States District Court, District of Columbia
Ana-Maria Ignat, G. Brian Busey, Morrison & Foerster, LLP, Washington, DC, Joyce Liou, Wendy M. Garbers, Rosemary S. Tarlton, Morrison & Foerster, LLP, San Francisco, CA, for Plaintiffs, Counter-Defendants.
Steven Michael War, McNeely, Hare & War LLP, Washington, DC, Stephen L. Anderson, Anderson & Associates, Temecula, CA, for Defendant, Counter-Claimant.
DENYING THE DEFENDANT'S MOTION TO STRIKE
RUDOLPH CONTRERAS, District Judge.
This matter comes before the court on the defendant's motion to strike. In the motion's crosshairs are thirteen affirmative defenses that the plaintiffs raised in response to the defendant's counterclaim. As is common practice in this court, each affirmative defense was brief— no more than a sentence each. The defendant argues that these affirmative defenses should be assessed under the " plausibility" standard that is used to gauge the sufficiency of a complaint under Rule 8(a)(2). But this proposal would dramatically alter Rule 8(c), which simply asks parties to " affirmatively state" their affirmative defenses. Because the court has not identified any compelling reason to warrant such a dramatic shift, the court will deny the defendant's motion.
In the decades following Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), courts demanded relatively little of a complaint. At that time, the Court held that Rule 8(a)(2) simply required " ‘ a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." 355 U.S. at 47, 78 S.Ct. 99 (quoting FED.R.CIV.P. 8(a)(2)). Courts were therefore instructed not to dismiss a complaint for failure to state a claim " unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. at 45-46, 78 S.Ct. 99. The Court shifted course in Bell Atlantic v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009), which held that plaintiffs must allege enough facts to show that their claim is " plausible." Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Iqbal, 556 U.S. at 684, 129 S.Ct. 1937. The Court explained that a claim is plausible " when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘ probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation marks and citations omitted).
Courts have split when presented with the question raised by the defendant's motion: does Iqbal and Twombly 's " plausibility" requirement also apply to affirmative defenses? See Falley v. Friends Univ., 787 F.Supp.2d 1255, 1256-57 (D.Kan.2011) (collecting cases). For the reasons discussed below, the court will answer in the negative.
First: Iqbal and Twombly interpreted Rule 8(a)(2), which sets forth the pleading requirements for a complaint. Affirmative defenses are governed by a different provision, Rule 8(c). Courts must be careful not to extend a court's legal analysis beyond its original context " without careful and critical examination." See
Fed. Express Corp. v. Holowecki, 552 U.S. 389, 393, 128 S.Ct. 1147, 170 L.Ed.2d 10 (2008); County of Los Angeles v. Shalala, 192 F.3d 1005, 1014 (D.C.Cir.1999) (noting that courts should consider not only the language of the particular statutory provision under scrutiny, but also the structure and context of the statutory scheme of which it is a part). This is especially true if the two rules employ different language. See Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 78 L.Ed.2d 17 (1983) (noting that statutes using different words should be interpreted differently). Rule 8(a)(2) requires plaintiffs to file a complaint with a " short and plain statement of the claim showing that the pleader is entitled to relief. " FED.R.CIV.P. 8(a)(2) (emphasis added). This language was central to the Supreme Court's reasoning in Twombly and Iqbal. See Twombly, 550 U.S. at 557, 127 S.Ct. 1955 (" The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘ plain statement’ possess enough heft to ‘ sho[w] that the pleader is entitled to relief. ’ " ) (emphasis added); Iqbal, 556 U.S. at 677-78, 129 S.Ct. 1937 (" When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. " ) (emphasis added). Rule 8(c) omits these phrases. Instead, Rule 8(c) simply asks that a defendant " affirmatively state" any affirmative defenses. The fact that Rule 8(a) and Rule 8(c) use different language is a strong indication that the two rules should be interpreted differently. See, e.g., Garber v. Mohammadi, 2011 WL 2076341, at *4 (C.D.Cal. Jan. 19, 2011) (" Neither Rule 8(b) [which governs defenses generally] nor Rule 8(c) contains language that precisely corresponds to Rule 8(a)'s language requiring that the pleader ‘ show’ that he is entitled to relief." ); First Nat. Ins. Co. of Am. v. Camps Servs., Ltd., 2009 WL 22861, at *2 (E.D.Mich. Jan. 5, 2009) (" No ‘ short and plain’ language ... appears within Rule 8(c), the applicable rule for affirmative defenses. Thus, Twombly 's analysis of the ‘ short and plain statement’ requirement of Rule 8(a) is inapplicable to this motion [to strike] under Rule 8(c)." ); see Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821, 829 n. 34 (2010) (" The Court [in Twombly and Iqbal ] was construing the word " showing" in Rule 8(a)(2) governing claims, which does not appear in Rule 8(b) or (c) on answers, and was establishing a gatekeeping test for people trying to get into court, which does not bear on the opposing party." ).
Second: plaintiffs and defendants do not share an equal footing when it comes to the speed with which they must craft their pleadings. A plaintiff chooses when to file the complaint, subject only to the statute of limitations. In most cases this allows for months or years of contemplation and investigation. In contrast, a defendant must typically submit an answer " within 21 days after being served with the summons and complaint." FED.R.CIV.P. 12(a)(1)(A)(i). Thus, defendants must assemble their response in relatively little time. See Meas v. CVS Pharmacy, Inc., 2011 WL 2837432, at *3 (S.D.Cal. July 14, 2011) (noting that it is unrealistic to " expect a defendant to investigate and to adequately prepare an answer containing all relevant affirmative defenses within 21 days of service of the complaint" ); Wells Fargo & Co. v. United States, 750 F.Supp.2d 1049, 1051 ...