Federal Court: Does Twombly/Iqbal apply to affirmative defenses?

A court may strike affirmative defenses under Federal Rule of Civil Procedure 12(f) if they present an “insufficient defense, or any redundant, immaterial, impertinent, or scandalous matter.” The question is: can the Iqbal/Twombly pleading standards be applied to strike affirmative defenses in California district courts?

In Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) the Supreme Court raised the bar for federal court plaintiffs by clarifying the standard for deciding motions to dismiss for failure to state a claim. Previously, a claim would be dismissed only if it appeared “beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.” Id. at 1968. Twombly rejected this standard in favor of a rule requiring a complaint to state “enough facts to state a claim to relief that is plausible”—not merely “conceivable.” Id. at 1974. A “plausible” claim under Twombly requires stating “enough fact[s] to raise a reasonable expectation that discovery will reveal evidence [of the alleged wrongdoing].” Id. at 1965-66. In Ashcroft v. Iqbal, 556 U.S. 662, 684, 129 S. Ct. 1937, 1953 (2009), the Supreme Court clarified that Twombly applied to all civil complaints, and not just antitrust suits.

The Ninth Circuit has not squarely ruled on the issue of whether Twombly/Iqbal applies to affirmative defenses and district courts in the Ninth Circuit are split on the issue. Compare, e.g., Barnes v. AT&T Pension Benefit Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1172 (N.D. Cal. 2010)(holding the heightened pleading standard Twombly/Iqbal applies to affirmative defenses); Kohler v. Island Rests., LP, 280 F.R.D. 560 (S.D. Cal. Feb. 16, 2012)(declining to extend Twombly/Iqbal pleading standards to affirmative defenses); Garber v. Mohammadi, No. CV 10–7144–DDP (RNB), 2011 WL 2076341 (C.D. Cal. Jan. 19, 2011) (Twombly/Iqbal not applied); Burton v. Nationstar Mortg., LLC, No. CV-F-13-0307-LJO-GSA, 2013 WL 4736838 (E.D. Cal. Sept. 3, 2013)(Twombly/Iqbal not applied).

When California District Courts have applied Twombly/Iqbal to affirmative defenses, they have said that “[w]hile a defense need not include extensive factual allegations in order to give fair notice, bare statements reciting mere legal conclusions may not be sufficient.” Perez v. Gordon & Wong Law Grp., P.C., No. 11-3323, 2012 WL 1029425, at *8 (N.D. Cal. Mar. 26, 2012)(internal quotation marks omitted)). A defendant’s pleading of affirmative defenses must put a plaintiff on notice of the underlying factual bases of the defense. Perez, supra, 2012 WL 1029425, at *8 (internal quotation marks omitted).

However, even if your court does not apply Twombly/Iqbal to them, the affirmative defenses must still meet California’s traditional “fair notice” standard.

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