An Implausible Standard for Affirmative Defenses

26 Pages Posted: 5 Nov 2013 Last revised: 22 Oct 2014

See all articles by Stephen Mayer

Stephen Mayer

University of Michigan at Ann Arbor - University of Michigan Law School

Date Written: November 1, 2013


In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility pleading to affirmative defenses by identifying several fundamental flaws in their appeals to tradition, policy, and the text of Rule 8. Due to misguided reliance on historical pleading practices, an imprecise reading of Twombly, and an overestimation of the availability of discovery for unpled or stricken affirmative defenses, these courts fail to recognize that extending plausibility pleading beyond the complaint imposes an asymmetrical and unfairly onerous burden on defendants. This Note concludes that the courts that extend Twombly to affirmative defenses do so in violation of both the canons of statutory construction and the principles of the Rules Enabling Act.

Keywords: Civil Procedure, Pleading, Twombly v. Iqbal, Bell Atlantic Corp. v. Twombly, Affirmative Defense, Rule 8, FRCP 8, Conley v. Gibson

Suggested Citation

Mayer, Stephen, An Implausible Standard for Affirmative Defenses (November 1, 2013). Michigan Law Review, 112 Mich. L. Rev 275 (2013). Available at SSRN:

Stephen Mayer (Contact Author)

University of Michigan at Ann Arbor - University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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