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Should I motion to strike or not

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Defendant pleads all affirmative defenses allowed under Rule 8©.

The question would be Does The Twombly Standard Extend to Affirmative Defenses? In my readings, the majority of the courts have ruled that the Twombly standard does apply to Affirmative defenses, allowing the plaintiff to motion to strike, but then allowing the defendant leave to amend the claim.

My question is this, if I do not motion to stike an affirmative defense, do they have to prove all of them? What happens if they cannot prove latches, for example?

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I would suppose what you do depends on your strategy. I would personally let them keep them in if I knew my case was strong. The reason is that I would force them to waste time trying to back up their own stupid pleadings.

As for a failure to prove laches, I suppose that depends on how they try to use it. If they plead it in such a way as it doesn't actually force them to admit to your allegations, not much. What would be much more devastating is if they used an affirmative defense that forced them to admit to your allegations, then failed to prove that defense. Anyhow, since there are SOLs on the claims that you've used and most of the stuff (to my understanding) occurred fairly recently, laches is going to be a wash for them.

Is there a federal equivalent for a more definite statement? Because what you posted could be construed to include Res Judicata.

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They claimed every possible "boilerplate" affirmative defense. ALL OF them under Rule 8©. Do they have to Defend and prove EVERY one of them at trial, or can they just say, we only want to claim these? I was just using latches and an example, the claimed and I quote

"affirmative defenses available, including, but not limited to those defenses available under FRCP 8©: accord and satisfaction; arbitration and award; assumption of risk; contributory negligence; discharge in bankruptcy; duress; estoppel; failure of consideration; fraud; illegality; injury by fellow servant; laches; license; payment; release; res judicata; statute of frauds; statute of limitations; and waiver."

I mean, jeezz, how in the world can they make affirmative defense for any of that crap?

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Is that just a list of available defenses, or did they actually plead each one of them separately? I doubt they'd do that.


They pleaded them all. I saw their answer. It is one of the more pitiful answers to a lawsut that I have ever seen. Not just because of the affirmative defenses, but just overall horrible.

They are either conceding the case and know they are getting ready to settle, or they know they have this so won that they don't even need to put out much of an effort.

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The United States district courts, and other State and local courts disagree as to whether the plausibility pleading standard for claims first described by the United States Supreme Court in Bell Atlantic Corp. v. Twombly also extends to affirmative defenses pled by defendants in federal courts. The divergent opinions result from conflicting interpretations of the language of the Federal Rules of Civil Procedure, standards of preferred practice, and notions of fairness.

Davis v. Sun Oil Co. had allowed a succinctly pled affirmative defense to stand. While the Supreme Court had increased the specificity with which claims had to be pled in Bell Atlantic Corp. v. Twombly.

In First National Insurance Co. of America v. Camps Services, Ltd.10

The First National court acknowledged that Twombly “raised the

requirements for a well-pled complaint” under Federal Rule of Civil Procedure 8(a), but distinguished the language of Rule 8©, the “applicable

rule for affirmative defenses.” that Twombly did not extend to affirmative defenses.

The First National court acknowledged that Twombly “raised the

requirements for a well-pled complaint” under Federal Rule of Civil

Procedure 8(a), but distinguished the language of Rule 8©, the “applicable

rule for affirmative defenses.” that Twombly did not extend to affirmative defenses.

As such, the court found that Twombly’s analysis of the Rule 8(a) requirements was inapplicable to Rule 8©. The court accordingly applied the pleading standard for affirmative defenses articulated in Davis and allowed the defendant’s succinct affirmative defense to stand.

The case you should really look at is Ashcraft -vs- Iqbal

in Ashcroft v. Iqbal it was ruled it does extend to defendants’

affirmative defenses. The issue usually arises in the context of Rule 12(f)

motions to strike an affirmative defense.The tension between an

extension of the Twombly standard and the language of the Federal Rules of

Civil Procedure (Rules) has resulted in some creative jurisprudence. A

bounty of “well-reasoned case law” exists on both sides, with the decisions

turning upon the structure of the Federal Rules as well as “relevant policy

considerations and principles of fairness.

We have been studying Twombly and other pertaining cases for the last three semesters, I have all kinds of cases that are related to Twombly. I you want more i can post some more and you can explore them.

Here is one that backs up what you want, look at Phillips -vs- County of Allegehny.In this case the circuit court ruled that pleadings should set forth enough factual allegations to set forth a reasonable expectation that discovery will reveal enough evidence to support each of the claims elements.

There fore if an admission ask for a defendant to speculate and not enough or no proof at all has been pleaded a motion to dismiss will stand up in court.

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Hey Gunny, I have a huge favor to ask, since you are in law school where they are presumably exposing you to the case law that is going to be commonly cited across the board. Could we get a Gunny's thread that lists case law that is either A) applicable across the board or B) applicable to debt, debt collection and other banking/lending laws in general? I'm not talking about you digging through and posting everything at once, just start with some important cases and when something comes up in one of your classes, add to it.

Stuff like whether or not Twombly applies to affirmative defenses is good stuff to know.

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Here is how I used Twombly (the judge allowed the defenses to stand anyway, said it was up to the defendant to prove them) Hope this helps, a ton of favorable cases at the end.

Recent decisions have shown that Courts are willing to apply what is called the “Twombly” decision to Special Defenses. In Bell Atlantic v. Twombly, 2007, the U.S. Supreme Court laid the groundwork when they stated in pertinent part: “This case presents the antecedent question of what a plaintiff must plead in order to state a claim under ง 1 of the Sherman Act. Federal Rule of Civil Procedure 8(a)(2) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957). While a complaint attacked by a Rule 12(B)(6) motion to dismiss does not need detailed factual allegations, ibid.; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (C.A.7 1994), a plaintiff’s obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure ง 1216, pp. 235-236 (3d ed.2004)…” (emphasis added)

Subsequently in 2009, in Ashcroft v. Iqbal, the Supreme Court clarified that the Twombly decision was based on its interpretation and application of Fed. R. Civ. P. 8, which governs the pleading standard in all civil actions. It is therefore reasonable to extend this standard to our own Courts.

In Hayne v. Green Ford Sales Inc., District Court D Kansas, 2009, the Court stated: “Since the Supreme Court's decisions in Twombly and Iqbal, several courts have addressed whether the new pleading standard applies to affirmative defenses. A few courts have rejected the heightened pleading standard for affirmative defenses. The majority of courts addressing the issue, however, have applied the heightened pleading standard announced in Twombly, and further clarified in Iqbal, to affirmative defenses. In United States v. Quadrini, the Eastern District of Michigan court specifically addressed whether Twombly's standard for pleading sufficiency applied to pleading affirmative defenses. It reasoned that:

“This clarification by the Supreme Court that a plaintiff must plead sufficient facts to demonstrate a plausible claim, or one that has a "reasonably founded hope" of success, cannot be a pleading standard that applies only to plaintiffs. It must also apply to defendants in pleading affirmative defenses, otherwise a court could not make a Rule 12(f) determination on whether an affirmative defense is adequately pleaded under Rules 8 and/or 9 and could not determine whether the affirmative defense would withstand a Rule 12(B)(6) challenge. Thus, a wholly conclusory affirmative defense is not sufficient. Like the plaintiff, a defendant also must plead sufficient facts to demonstrate a plausible affirmative defense, or one that has a "reasonably founded hope" of success…. In this case, the Court agrees with the reasoning of the courts applying the heightened pleading standard to affirmative defenses. It makes no sense to find that a heightened pleading standard applies to claims but not to affirmative defenses.” (emphasis added)

The Court’s decision cited the cases below, in which Twombly was held to be the applicable standard for Affirmative Defenses.

CTF Dev., Inc. v. Penta Hospitality, LLC, No. C 09-02429 WHA, 2009 WL 3517617, at *7-8 (N.D. Cal. Oct. 26, 2009) ("Under the Iqbal standard, the burden is on the defendant to proffer sufficient facts and law to support an affirmative defense"); Tracy ex rel. v. NVR, Inc., No. 04-CV-6541L, 2009 WL 3153150, at *7-8 (W.D.N.Y. Sept. 30, 2009) (striking affirmative defenses pled in simply conclusory terms, unsupported by any factual allegations, as "plainly deficient under the Iqbal standard"); FDIC v. Bristol Home Mortg. Lending, LLC, No. 08-81536-CIV, 2009 WL 2488302, at *2-4 (S.D. Fla. Aug. 13, 2009) (applying Twombly to affirmative defenses); Teirstein v. AGA Medical Corp., No. 6:08cv14, 2009 WL 704138, at *6 (E.D. Tex. Mar. 16, 2009) (affirmative defenses subject to same pleading standards as complaints and counterclaims); Greenheck Fan Corp. v. Loren Cook Co., No. 08-cv-335-jps, 2008 WL 4443805, at *1-2 (W.D. Wis. Sept. 25, 2008) (defendant's affirmative defenses, characterized as legal theories with implied elements, failed to comply with Rule 8 and failed to provide sufficient notice of the grounds for them); Stoffels ex rel. SBC Tel. Concession Plan v. SBC Communications, Inc., No. 05-CV-0233-WWJ, 2008 WL 4391396, at *1 (W.D. Tex. Sept. 22, 2008) (applying Twombly pleading specificity standard to affirmative defenses); Safeco Ins. Co. of Am. v. O'Hara Corp., 2008 WL 2558015, at *1 (E.D. Mich. June 25, 2008) (holding that the Twombly plausibility standard applies in the context of a defendant asserting an affirmative defense); Holtzman v. B/E Aerospace, Inc., No. 07-80551-CIV, 2008 WL 2225668, at *2, (S.D. Fla. May 28, 2008) (citing Twombly as support for the proposition that a defendant must "alleg[e] facts as part of the affirmative defenses" and granting plaintiff's motion for a more definite statement); United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213, at *3-4 (E.D. Mich. Dec. 06, 2007) (applying heightened pleading standard to defendants in pleading affirmative defenses).

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