Prof. Bales and Melanie Goff Post Article on the Applicability of Twombly to Affirmative Defenses on SSRN
Professor Richard A. Bales (N. Kentucky) and Melanie Goff have recently published an article entitled A 'Plausible' Defense: Applying Twombly and Iqbal to Affirmative Defenses on SSRN. Here is the abstract:
The U.S. Supreme Court’s 2007 and 2009 decisions in Twombly and Iqbal radically altered the environment in which federal complaints are filed by creating a “plausibility” requirement where the Federal Rules before required only a “short and plain statement” providing “notice” of a claim. The lower federal courts have just now begun to deal with the Twombly-Iqbal fallout. One of the issues that has arisen – the issue addressed by this article – is whether the new plausibility pleading standard applies only to plaintiffs’ complaints, or whether it applies also to affirmative defenses raised in defendants’ answers. This article argues that, regardless of whether the Twombly-Iqbal departure from notice pleading was wise, the new standard should be applied uniformly to all pleadings, because to do otherwise would even further uniquely and unfairly disadvantage plaintiffs.
The article may be downloaded at http://ssrn.com/abstract=1737805.