A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses
Melanie A Goff
Northern Kentucky University - Salmon P. Chase College of Law
Richard A. Bales
Ohio Northern University - Pettit College of Law
January 10, 2011
American Journal of Trial Advocacy, Vol. 34, No. 3, 2011
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.
Number of Pages in PDF File: 41
Keywords: Iqbal Twombly Plausible Plausibility Pleading Affirmative Defense Defendant Notice
Date posted: January 10, 2011 ; Last revised: February 15, 2012
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