Friday, January 21, 2011

Goff and Bales on Twombly, Iqbal, and Affirmative Defenses

Melanie Goff and Richard Bales (both of Northern Kentucky) have posted to SSRN their article, A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses, which is forthcoming in the American Journal of Trial Advocacy, Vol. 34, No. 3, 2011.  Here's the abstract:

The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.


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For those of us that end up in Federal Court one way or another and get hit with the old 12(b)(6) Twonbly-Iqbal "mere labels" and "legal conclusions" defense. When that is used for an affirmative defense without supplying any facts supporting the grounds for dismissal.

Shouldn't the motion technically be defeated by its own standard?

Seen as quoting and citing precedent without identifying the any applicable points or facts supporting it as proper authority, they're only providing the Twonbly-Iqbal "mere labels" and "legal conclusions" themselves. And the defense itself is still governed by Rule 8's pleading standards as well.

Posted by: DyingTruth | Feb 16, 2011 5:45:15 PM

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