• October 8, 2010

[CORRECTION: In the post below, originally published on August 30, Minnesota Litigator suggested that the motion to strike affirmative defenses based on Iqbal/Twombly pleading standards in Nerger (still scheduled to be argued on 10/29, 10 a.m., before U.S. District Court Judge Donovan Frank (D. Minn.))  “may be the first case in the district” to address the issue.

But see Ahle v. Veracity Research Co., 09-0042 ADM/RLE, 2010 WL 3463513 at *25 (D. Minn. Aug. 25, 2010) (“The arguments in favor of extending Twombly and Iqbal to affirmative defenses are compelling” (dicta)); see Merchant & Gould, P.C. v. Premiere Global Services, Civ. File No. 09-3144 (JRT/JSM) (Mag. Judge Mayeron 12/30/09 Order, contra).  And U.S. Mag. Judge Arthur J. Boylan (D. Minn.) has gotten there first in Wells Fargo & Co. v. United States, CIVIL 09-2764 PJS/AJB, 2010 WL 2814317 (D. Minn. July 15, 2010).  On the other hand, Judge Boylan noted that the issue had not even been briefed when he ruled on the motion.

Wells Fargo argued at the hearing that this Court’s standard of review [for pleaded affirmative defenses] should incorporate the pleading standard enunciated in Twombly and Iqbal. This Court declines to impose a burden on the United States where such a burden does not exist by virtue of a Federal Rule of Civil Procedure or relevant authority-especially in the absence of briefing by the parties. [emphasis added.] Twombly and Iqbal concern the pleading standard within complaints and within the context of motions under Fed.R.Civ.P. 12(b)(6). Therefore, Twombly and Iqbal do not influence this Court’s analysis of Wells Fargo’s Motion to Strike the United States’ “Second Additional Defense” pursuant to Fed.R.Civ.P. 12(f).”)

Objections to Judge Boylan’s Order & Opinion are pending before U.S. District Court Judge Patrick J. Schiltz (D. Minn.).  So it remains to be seen as to which Article III Judge in the District of Minnesota will weigh in first on this issue and which side of the dispute will win out.

[UPDATE:  Argument on the motion to strike in the case referenced below, Nerger v. Midwest Theaters, Civ. File No. 10-cv-2533, is set for October 29 before U.S. District Court Judge Donovan W. Frank (D. Minn.).  This may be the first case in the district and perhaps in the circuit on the issue of whether heightened pleading requirements imposed by the Iqbal/Twombly cases apply to affirmative defenses.  (Here is a late-July Eastern District of Virginia ruling on such a motion, surveying other decisions by U.S. district courts.)]

All U.S./federal litigators have been on notice since May, 2009 that the prerequisites for complaints in federal civil litigation have been substantially increased.  Bare-bones allegations won’t survive a motion to dismiss.

Great news for defendants!  The federal system is forcing plaintiffs to play their cards at the outset; no more vague allegations of having been wronged, followed by “prayers for relief.”  But symmetry, balance, and reciprocity are basic principles underlying our notion of justice.  Will defendants have to step up their game, as well?

The common list of “affirmative defenses” in defendants’ answers to complaints is the defendants’ “flipside” of much-criticized plaintiffs’ strategies like “shotgun pleadings” (long and rambling factual allegations unconnected to stated legal causes of action).  Stripping a case of factually unsupported affirmative defenses can be a time-consuming and costly process.  Now, in the world of Iqbal/Twombly, it would seem that defendants may no longer rely on “threadbare recitals” and “conclusory statements,” to use the U.S. Supreme Court’s words from Iqbal.

In Nerger v. Midwest Theatres Corp. (U.S. District Court, D. Minn. (Frank, J.)), the creditor plaintiff has moved to strike affirmative defenses for the failure to plead facts from which the conclusory affirmative defenses could be inferred.  While the substantially increased burden of the latest gloss on federal pleadings rules are subject to criticism, it is hard to take issue with the view that, if the rules are “enhanced,” it should be a two-way street.

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