• April 30, 2015
Sauce-for-goose-and-gander

Distinct Sauces for Goose and Gander, Photo by Dan T., Creative Commons License

Update (April 30, 2015): Plaintiffs in federal civil litigation are not allowed to make up facts in their complaints. They are subject to “Rule 11,” a rule that exposes plaintiffs to serious consequences if they make stuff up.

So, is it fair that a plaintiff must meet an admittedly low standard (no bald-faced lying or reckless baseless allegations) but defendants, in answering complaints, can make stuff up? Specifically, can defendants invoke “affirmative defenses” to complaints for which they have no factual or legal basis whatsoever without fear of being sanctioned?

The answer is “Yes.” The proper remedy for “kitchen sink” affirmative defenses is not Rule 11. It is a “motion to strike” under Rule 12, as set out in a recent opinion by U.S. District Court Judge Susan R. Nelson (D. Minn.). This asymmetry makes sense. A plaintiff who makes stuff up to bring a lawsuit creates a costly and disruptive problem for our justice system out of nothing. A defendant, on the other hand, who makes stuff up in his affirmative defenses might be under a time constraint and at an informational disadvantage. Also, a defendant’s meritless affirmative defenses do not generally impose any material hardship on the court system or on the adversaries. So we do not need to raise the stakes on defendants or defense counsel to deter baseless affirmative defenses.

Update (November 9, 2011):  Recognizing that enhanced “Iqbal/Twombly” pleading rules (discussed below) do not apply to affirmative defenses, U.S. District Court Judge Donovan W. Frank (D. Minn.) still struck affirmative defenses last week as falling short of Rule 8 in response to a motion to strike by a plaintiff in a Fair Credit Reporting Act case (“FCRA“).  In short, defense counsel should take heed that a “kitchen sink answer” with an exhaustive compendium of affirmative defenses may result in a successful motion to strike.  

Original Post (August 4, 2011):  As civil litigators with practices in federal court know, the practice has changed in recent years for drafting complaints, which need to have significantly more detailed factual allegations than in years past thanks to two U.S. Supreme Court decisions in recent years.  As most also know, there has been some dispute as to whether defendants also have an enhanced burden when, in their answers, they plead “affirmative defenses” (defined very roughly as legal arguments raised in defendants’ answers to complaints that would conclude this sentence, “Even if everything in the plaintiff’s complaint is true, he still loses because _________”).

Minnesota Litigator has covered decisions over the past year in which judges in the District of Minnesota have taken stands on this question.  In fact, this issue has attracted more attention than many others on Minnesota Litigator.  The consensus appears to be that defendants are not held to the same pleading standard.  But that is apparently not keeping the issue from being litigated to this day.

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