An Alexandria, Virginia federal court judge has held that the heightened pleading requirements under the so-called ‘Twiqbal’ cases do not apply to affirmative defenses.
Judge Cacheris’ ruling marks a striking departure from the rulings of a majority of the other federal district courts in the Fourth Circuit (comprised of federal courts in Maryland, North Carolina, South Carolina, Virginia, and West Virginia), which had each previously held that the ‘Twiqbal’ standard should apply equally to a plaintiff’s complaint and a defendant’s defenses. (Under the ‘Twiqbal’ standard, which was borne out of the cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal, the U.S. Supreme Court held that a plaintiff’s complaint must be based on more than just “threadbare recitals” to survive a motion to dismiss; instead, a plaintiff’s complaint must contain sufficient facts to give rise to a plausible entitlement to relief.)
While acknowledging that policy considerations such as “fairness, common sense, and litigation efficiency” are “compelling,” Judge Cacheris opined that, unlike the federal rules which govern the pleading requirements for a plaintiff’s claims for relief, the federal rules which govern a defendant’s affirmative defenses merely require a responding party to “state in short and plain terms its defenses to each claim asserted against it.”
Until the Fourth Circuit chimes in on this issue, plaintiffs and defendants alike will continue to litigate whether Twiqbal applies to affirmative defenses. Until then, defendants (especially those appearing in a Virginia federal court) can use Judge Cacheris’ opinion as authority in support of their position.