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A refreshed look at the pleading standards for Complaints….and Affirmative Defenses


Everyone knows by now that the U.S. Supreme Court has recently spoken on the topic of the pleading standards of Fed. R. Civ. P. 8 and instituted a “plausibility” pleading standard in the case of Bell Atlantic Corp. v. Twombly, 55 U.S. 544, 127 S.Ct. 1955, 167 L.E.D.2d 929 (2007).  Unfortunately, some lawyers view the Twombly decision (together its counterpart Iqbal) as aimed only at the standards applicable to a Complaint filed by the plaintiff. 

In fact, the opposite is true.  The pleading requirements of Fed. R. Civ. P.  8 (as well as the infamous Rule 11) apply to the Answer filed by a defendant (and the affirmative defenses set forth in Answers) just as they apply to Complaints. 

My favorite examples of evasive Answers are as follows: 

The allegations of paragraph ___ contain a legal conclusion to which no response is necessary. 

Paragraph ___ of the Complaint incorporates a document which speaks for itself, and as such no response is necessary.

Both of the above should, in most circumstances, be sanctionable.  Even worse is the defendant who is inserts a laundry list of affirmative defenses.  Either way, the result is that more work must be performed by the plaintiff to learn basic elements of the defense.  

I am quite happy to report that two Virginia Federal Magistrate Judges have recently confirmed that defendants must comply with Twombly and Iqbal in filing their answers and asserting affirmative defenses.  The opinions are Francisco v. Verizon South and Palmer v. Oakland.  
  
Hopefully, this will result in fewer evasive and/or non-responsive paragraphs in Answers.  

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