Download this Paper Open PDF in Browser

A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses

41 Pages Posted: 10 Jan 2011 Last revised: 15 Feb 2012

Melanie A Goff

Northern Kentucky University - Salmon P. Chase College of Law

Richard A. Bales

Ohio Northern University - Pettit College of Law

Date Written: January 10, 2011

Abstract

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.

Keywords: Iqbal Twombly Plausible Plausibility Pleading Affirmative Defense Defendant Notice

Suggested Citation

Goff, Melanie A and Bales, Richard A., A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses (January 10, 2011). American Journal of Trial Advocacy, Vol. 34, No. 3, 2011. Available at SSRN: https://ssrn.com/abstract=1737805

Melanie A Goff

Northern Kentucky University - Salmon P. Chase College of Law ( email )

Nunn Hall
Highland Heights, KY 41099
United States

Richard A. Bales (Contact Author)

Ohio Northern University - Pettit College of Law ( email )

525 South Main Street
Ada, OH 45810
United States
419-772-2205 (Phone)

HOME PAGE: http://law.onu.edu/node/3073

Paper statistics

Downloads
533
Rank
42,337
Abstract Views
2,132