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Lacking of Specificity About Specificity

F.R.C.P 8(a) and 8(c) requires so-called notice pleading for the claims made in pleadings. Notice pleading requires a party to plead with specificity sufficient to give an opposing party notice of what the claim(s) being made are. A question has arisen in federal court as to whether affirmative defenses, a type of pleading typically filed by a defendant against a plaintiff’s complaint, need to meet the specificity requirement mentioned above.

The U.S. Supreme Court, in the matters of Bell Atlantic Corporation v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), appeared to create new pleading standards; however their application to affirmative defenses is unclear.

The matter of Tyco Fire Products v. Victaulic, 777 F.Supp.2d. 893 (E.D.Pa.2011), in the Eastern District of Pennsylvania attempts to address the ongoing development of the pleading requirements for affirmative defenses.

As is typical, the defendant in Tyco filed a list of affirmative defenses in conclusory form responding to various legal claims. The plaintiff, in response, filed a motion to dismiss the affirmative defenses on the basis that they lacked the necessary specificity per the rules cited above.

When analyzing the arguments presented pursuant to the aforesaid motion, the court noted that F.R.C.P. 8(a) does not apply to affirmative defenses as, per this court, they are dealt with by F.R.C.P. 8(c). Prior to Twombly, affirmative defenses would only be stricken if no set of facts could be inferred to support them. Since the Twombly decision, some say the pleading requirements have risen to something above a speculative level and/or a formulaic recitation of labels or conclusions, and some sort of factual allegations are now required.

In light of the above, the court pointed out that lower courts across the country are divided as to how these Supreme Court cases apply to affirmative defenses; indeed, the court noted, many courts have taken the position that these cases do not apply to affirmative defenses. Significantly, some courts have recognized that as the Supreme Court only interpreted F.R.C.P. 8(a), and not 8(c), there should be no change to the application of 8(c) to affirmative defenses. By contrast, other courts interpret the applicable law as having always required fair notice for all pleadings, including even affirmative defenses.

The U.S. District Court of the Eastern District of Pennsylvania, in Tyco, was more persuaded by the argument that as the Supreme Court interpreted 8(a) and 8(c) differently, affirmative defenses do not require the specificity of other pleadings and need not be plausible to survive. Affirmative defenses need only to provide fair notice of the issues and arguments raised without the specificity required in other sorts of pleadings like complaints and counterclaims. The court argued that it would only strike affirmative defenses challenged on the basis of specificity only if they cannot meet this very low standard, which it believes is consistent with the language of 8(c). Indeed, the court observed that its interpretation is consistent with the fact that no responsive pleading to affirmative defenses is legally or procedurally required. Further, requiring greater specificity imposes an unreasonable burden on parties who risk waiving the defenses they do not raise at the pleading phase due to having insufficient information to raise them as affirmative defenses at the time of filing.

The court admitted that this area of the law, namely the interpretation of F.R.C.P. 8(a) and (c) relative to affirmative defenses, is still very fluid and variable. As a result, it is important for the practitioner to ensure he is familiar with the prevailing interpretation when filing affirmative defenses.

Originally published in The Legal Intelligencer Blog on August 5, 2016 and can be seen here.

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