The Twombly Standard and Affirmative Defenses: What is Good for the Goose is Not Always Good for the Gander
affiliation not provided to SSRN
March 30, 2011
Fordham Law Review, Vol. 79, p. 2173, 2011
The United States district courts disagree as to whether the plausibility pleading standard for claims first described by the United States Supreme Court in Bell Atlantic Corp. v. Twombly also extends to affirmative defenses pled by defendants in federal courts. The divergent opinions result from conflicting interpretations of the language of the Federal Rules of Civil Procedure, standards of preferred practice, and notions of fairness.
This Note examines the district courts’ arguments in deciding whether the Twombly standard extends to affirmative defenses. It identifies the quiddities of the courts’ reasoning through an analysis of their decisions and, based upon this review, argues that the courts should not extend the Twombly standard to affirmative defenses. This Note shows how this conclusion adheres to the text and intention of the Federal Rules, as well as the holding and public policy considerations of Twombly itself. Moreover, it acknowledges that simple injustice would befall defendants on account of an extension of the Twombly standard.
Number of Pages in PDF File: 38
Keywords: Twombly, Plausibility, Affirmative Defense, Plausibility Pleading, Iqbal, Federal Pleading, Pleading, Federal Rules of Civil Procedure, Civil Procedure, Rule 8, Rule 8(a), Rule 8(a)(2), Rule 8(c), Pleading Standard, Federal Courts, Motion to Strike, Motion to Amend, Rule 12(e), Rule 15Accepted Paper Series
Date posted: April 5, 2011 ; Last revised: September 10, 2011
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