Litigators love to hedge their bets. It is my experience that most litigators are loathe to concede any issue, no matter how tendentious, either for fear of or in the hope that the issue might be useful somewhere down the road.


And, despite the reputation of litigators as fast-talking, shoot-from-the-hip cowboys, the good litigators that I have worked with (and against) are conservative in practice.  For all the chest-thumping and table-pounding, these litigators tend to be cautious when it comes to advising their clients on what they can and can’t do.

Nowhere are these twin characteristics more apparent than in pleading affirmative defenses.  Rule 8(c) of the Federal Rules of Civil Procedure (which also applies to the local Superior Courts of the Virgin Islands) provides that a defendant must raise any affirmative defense to a plaintiff’s claim as part of the defendant’s answer to the complaint.  The penalty for failing to raise an affirmative defense is that the defendant may be found to have waived that defense.  Thus, the traditional approach to affirmative defenses has been to "kitchen-sink" them by pleading every conceivable affirmative defenses, applicable or otherwise.  Indeed, an older edition of Mauet’s authoritative book, Pretrial, counsels that, when in doubt, assert the defense.  (To be fair, Mauet also notes in passing that such defenses should be raised in good faith.)

Moreover, affirmative defenses have traditionally been unburdened by any requirement that they have any grounding in fact.  Thus, while plaintiffs have to set forth factual predicates for their claims, defendants may freely assert defenses without providing any bases for those defenses.  The result, more often than not, is a laundry list of boilerplate defenses with no explanation of how they might apply to the claims at hand.

However, all of this may be changing.  Recent U.S. Supreme Court decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), reset the standard for the pleading of claims by a plaintiff.  Rather than requiring “a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests” under the previous standard of Conley v. Gibson, 355 U.S. 41 (1957), Twombly and Iqbal now require enough factual allegations “to raise a right to relief above the speculative level,” with “sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.”  The upshot is that plaintiffs must now perform more factual legwork up front to insulate themselves from a motion to dismiss.


Although Twombly and Iqbal undeniably change the standard for pleading claims, the question is whether the same holds true for affirmative defenses.  For a majority of federal trial courts, the answer is yes.  Courts are now beginning to hold defendants to a higher standard of pleading affirmative defenses.  And, as typified by the case of Glover v. Mary Jane M. Elliott, P.C., No. 1:07-cv-648, 2007 WL 2904050 (W.D. Mich. Oct. 2, 2007), which I first read about on the Michigan Collection Law Blog (, judges are losing their patience with boilerplate defenses.  This holds especially true where defendants assert defenses that have no relevance or applicability to the plaintiff’s allegations.

The local courts of the Virgin Islands have not weighed in on whether Twombly and Iqbal apply to affirmative defenses.  The District Court of the Virgin Islands has joined a minority of district courts in holding that Twombly and Iqbal do not govern affirmative defenses.  See Charleswell v. Chase Manhattan Bank, N.A., Civ. No. 01-119, 2009 WL 4981730 (D.V.I. Dec. 8, 2009).  I think, however, that this will not be the final word on this issue.  For one thing, although the minority view correctly notes that Twombly and Iqbal apply only to claims for relief under Rule 8(a) and not affirmative defenses under Rule 8(c), the same was once apparently true for the pleading of claims under the old "short and plain statement rule" of Conley.  Courts began applying Conley to affirmative defenses, despite the fact that Conley decision itself dealt solely with claims for relief under Rule 8(a).  Moreover, there is some support for the idea that Twombly and Iqbal superseded Conley in all of its aspects, including its application to affirmative defenses under Rule 8(c).  (An interesting canvas of the arguments both for and against the application of Twombly and Iqbal to affirmative defenses can be found at Manuel John Dominguez, et al., The Plausibility Standard as a Double-Edged Sword: The Application of Twombly and Iqbal to Affirmative Defenses, 84 FLA. B.J. 77, 78 & n. 20 (June 2010).)

It remains to be seen where the appellate courts come down on this, but I think that the days of throwing claims and defenses up against a wall to see what sticks are drawing to a close.  Twombly and Iqbal tightened the standards for the pleading of claims by plaintiffs, and I think that the trajectory of the U.S. Supreme Court cases have been toward more rigorous pleading standards in general.  In the meantime, litigators might want to consider whether their collective reluctance to concede issues and their generally cautious dispositions are best served by a reliance on boilerplate defenses.