Heightened Pleading Standards Under Twombly Case Do Not Apply To Affirmative Defenses

Weddle v. BAYER AG CORPORATION, Dist. Court, SD California 2012 – Google Scholar.


This is a decision of a district court in Southern California.  The court holds that the heightened pleading standards set forth in Bell Atlantic Corporation v. Twombly, 550 U.S. 554 (2007) do not apply to affirmative defenses.

An affirmative defense is a defense raised in the answer of a defendant.  The defendant first answers (denies or admits) the allegations in the complaint.  Then the defendant may add affirmative defenses that defeat plaintiff’s claim.  A classic affirmative defense is that the statute of limitations has expired.  Thus, even if what plaintiff said in his complaint was true, plaintiff would still lose because he filed his case after the deadline ran.

The court noted that Rule 8(c), which governs affirmative defenses, requires only the the defendant “affirmatively state” any affirmative defense.  In the court’s view, the purpose of an affirmative defense is to place the plaintiff on notice of the defense.  It is not designed to lay out the defendant’s position in detail.

Comment: there will certainly be more discussions of this issue in the future.  I will try to flag these issues and discuss them in this blog.

Edward X. Clinton, Jr.


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