• July 19, 2010

As all U.S. civil litigators and regular readers of Minnesota Litigator know, the U.S. Supreme Court in recent years has substantially ratcheted up the requirements for pleading a complaint in federal court (see here, for example). What about the responsive pleadings — that is, answers to complaints (and, in particular, affirmative defenses raised by defendants)?  Do the heightened pleading standards apply to them too?

While the recent decision from U.S. Mag. Judge Arthur Boylan (D. Minn.) in Wells Fargo v. United States, a tax overpayment dispute, is a long way’s off from a definitive answer to the question posed, Wells Fargo, at a minimum, could not successfully “strike” an affirmative defense for failure to meet the new pleading requirements.

As a purely practical matter, defendants in civil litigation tend to raise every conceivable affirmative defense in answers in response to complaints.  In answering complaints, given the limited time allowed under the rules (and, thus, the challenge to thoroughly develop factual bases for all available affirmative defenses), imposing enhanced pleading obligations on affirmative defenses might dramatically alter current practice and would likely often add a new step to many civil cases — the motion to amend under Rule 15.

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