A ‘Plausible’ Outcome?: Twombly, Iqbal, and The Unforeseen Impact on Affirmative Defenses

Jennifer M. Auger

Between July 1, 2012 and June 30, 2013, there were 284,604 civil cases filed, 300,485 pending, and 255,260 terminated among the federal district courts. Out of the civil cases terminated, 171,973 were terminated before pretrial and 25,816 were terminated during or after pretrial. Only 1.2% of the terminated cases actually went to trial and of that fraction, 31% of those cases were still decided by nonjury means. This data illustrates an overall trend in the decline of trial rates for civil cases and a prevalence for adjudication during the early stages of litigation.

The rise in pretrial adjudication results in an emphasis on the Federal Rules of Civil Procedure (“Federal Rules”) to administer these cases during the early stages of litigation. The Supreme Court of the United States ultimately prescribes the Federal Rules,6 however, the Court often interprets the Rules within the confines of a particular case. As such, the impact of this judicial interpretation within the greater scheme of the litigation process may not be fully addressed or envisioned at the time. The effect of a specific judicial interpretation can have drastic effects on the use of certain Federal Rules as tools of litigation.

In a pair of decisions, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the Supreme Court purposively amended the standard for complaint pleading under Federal Rule 8(a), ushering in a new “heightened” plausibility standard and removing the requirement that courts accept the truth of conclusory statements. While Twombly and Iqbal specifically addressed the pleading standard for complaints, the impact of these decisions extends beyond complaints. Federal district courts are split as to whether this “heightened” plausibility standard should also apply to responsive pleadings, specifically with affirmative defenses. While a majority of the federal district courts extend the plausibility standard to affirmative defenses, a number of federal district courts also expressly reject the application of the plausibility standard to affirmative defenses. As the Supreme Court did not address the universality of the Twombly and Iqbal decisions, it remains uncertain if the “heightened” plausibility standard also governs the requirements for affirmative defense pleadings.

The “heightened” plausibility standard adopted by the Supreme Court in Twombly and Iqbal had the unintended consequence of “destabilizing” pleading practices, specifically the pleading standard for affirmative defenses. This Comment will explore the application of the “heightened” plausibility standard in relation to the underlying motivations that prompted the standard, in order to demonstrate that federal district courts should not extend this standard to affirmative defenses. Specifically, this Comment will examine the United States District Court for the District of Maryland as a microcosm to analyze the two views that currently split federal courts.