Does the Iqbal/Twombly Standard Apply to Pleading FDCPA Affirmative Defenses?

On District Court in North Carolina says that it does.  In Racick v. Dominion Law Associates, — F.Supp.2d —-, 2010 WL 3928702 (E.D.N.C.), Judge Fox applied the Twombly/Iqbal pleadings standards to affirmative defenses set forth by a debt collector in an FDCPA case, and set forth a primer on the split of authority amongst the district courts on the subject.  

Neither the Fourth Circuit Court of Appeals, nor any other circuit court of appeals, has addressed whether Twombly and Iqbal should be interpreted as applying to affirmative defenses. There is a split of authority among the district courts to address the question. The majority of the district courts-including every district court within the Fourth Circuit to have considered the issue-have concluded that the plausibility standard articulated in Twombly and Iqbal applies to the pleading of affirmative defenses. See, e.g., Francisco v. Verizon South, Inc., No. 3:09cv737, 2010 WL 2990159 at * *7-8 (E.D.Va. July 29, 2010)(collecting cases)  [FN1 The Eastern District of Virginia noted that in the following cases district courts hewed to the majority view:  Local 165 v. DEM/EX Group Inc., No. 09-1356, 2010 WL 971811, at *2 (C.D.Ill. Mar. 11, 2010); OSF Healthcare Sys. v. Banno, No. 08-1096, 2010 WL 431963, at *2 (C.D.Ill. Jan. 29, 2010); Hayne v. Green Ford Sales, Inc., 263 F.R.D. 647. 649-50 (D.Kan.2009); Tara Prods., Inc. v. Hollywood Gadgets, Inc., No. 09-61436-CIV, 2009 WL 4800542, at * 1 (S.D.Fla. Dec. 11, 2009) (finding that defendants must provide fair notice of affirmative defenses and the grounds on which they rest); Burget v. Capital W. Sec., Inc., No. CIV-09-1015-M, 2009 WL 4807619, at *2 (W.D.Okla. Dec. 8, 2009); Bank of Montreal v. SK Foods, LLC, No. 09 C 3479, 2009 WL 3824668, at *2 (N.D.Ill. Nov. 13, 2009) (holding that affirmative defenses must meet pleading standards set forth in Rules 8 and 9); Tracy v. NVR, Inc., No. 04-CV-6541L, 2009 WL 3153150, at *7 (W.D.N.Y. Sept. 30, 2009); GreenheckFan Corp. v. Loren Cook Co., No. 08-cv-335-jps, 2008 WL 4443805, at *1-2 (W.D.Wis. Sept. 25, 2008); In re Mission Bay Ski & Bike, Inc., Nos. 07 B 20870, 08 A 55, 2009 WL 2913438, at *6 (Bankr.N.D.Ill. Sept. 9, 2009); Kaufmann v. Prudential Ins. Co. of Am., No. 09-10239-RGS, 2009 WL 2449872, at *1 (D.Mass. Aug. 6, 2009) (court inclined to think that defendants have the same Rule 8 obligations as do plaintiffs); Shinew v. Wszola, No. 08-14256, 2009 WL 1076279, at *3 (E.D.Mich. Apr. 21, 2009); Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F.Supp.2d 620,623 (S.D.N.Y.2008) (“Merc conclusory assertions are not sufficient to give plaintiffs notice of the counterclaims and defenses and, thus, do not meet Rule 8(a)’s pleading standards.”); Stoffels ex rel. SBC Tel. Concession Plan v. SBC Commc’ns, Inc., No. 05-CV-0233-WWJ, 2008 WL 4391396, at *1 (W.D.Tex. Sept. 22, 2008); Safeco Ins. Co. of Am. v.. O’Hara Corp., No. 08-CV-10545, 2008 WL 2558015, at *1 (K.D. Mich. June 25, 2008); Holtzman v. B/E Aerospace, Inc., No. 07-80551-CIV, 2008 WL 2225668, at *2 (S.D.Fla. May 29, 2008); United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213, at *3-4 (E.D.Mich. Dec. 6, 2007); Home Mgmt. Solutions, Inc. v. Prescient, Inc., No. 07-20608, 2007 WL 2412834, at *3 (S.D.Fla. Aug. 21, 2007).   Francisco, 2010 WL 20000159 at *6 n.3. Since the decision in Francisco, at least other court has joined the majority view. See Castillo v. Roche Laboratories, Inc., No. 10-20876-C1V, 2010 WL 3027726 (S.D.Fla. Aug. 2, 2010).] Bradshaw v. Hilco Receivables, LLC — F.Supp.2d —, 2010 WL 2948181 at *3 (D.Md. July 27, 2010); Palmer v. Oakland Farms, Inc., No. 5:10cv00029, 2010 WL 2605179 at *5 (W.D.Va. June 24, 2010). The reasoning cited by these courts typically is two-fold. First, the courts recognize that what is good for the goose is good for the gander, and reason that “it makes neither sense nor is it fair to require a plaintiff to provide the defendant with enough notice that there is a plausible, factual basis for her claim under one pleading standard and then permit a defendant under another pleading standard simply to suggest that some defense may possibly apply in the case.” Palmer, 2010 WL 2605179 at *4. Second, the courts note that “[b]oilerplate defenses clutter the docket and … create unnecessary work” and extended discovery. Safeco, 2008 WL 2558015 at *1.  ¶  A minority of courts have refused to extend the plausibility standard to the pleading of affirmative defenses. See Francisco, 2010 WL 2990159 at *6 n.4 (collecting cases).  [FN2. The Francisco court cited the following cases as declining to extend the plausibility standard to affirmative defenses:  Ameristar Fence Prods., Inc. v. Phoenix Fence Co., No. CV-10-299-PHXDGC, 2010 WL 2803907, at *1 (D.Ariz. July 15, 2010); McLemore v. Regions Bank, Nos. 3:08cv0021, 3:08cv1003, 2010 WL 1010092, at *13 (M.D.Term. Mar. 18, 2010); Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB, 2010 WL 865380, at *2 (D.Colo. Mar. 8, 2010); Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 WL 4981730, at *4 (D.V.I. Dec. 8, 2009); Romantine v. CH2M Hill Eng’rs, Inc., No. 09-973, 2009 WL 3417469, at *1 (W.D.Pa. Oct. 23, 2009); First Nat’l Ins. Co. of Am. v. Camps Servs., Ltd., No. 08-cv-12805, 2009 WL 22861, at *2 (E.D .Mich. Jan. 5, 2009); Westbrook v. Paragon Sys., Inc., No. 07-0714-WS-C, 2007 U.S. Dist. LEXIS 88490, at *2 (S.D.Ala. Nov. 29, 2007).  Francisco, 2010 WL 2990159 at *6 n.4.]   These courts reason that Twombly and Iqbal addressed only Rule 8(a) if the Federal Rules of Civil Procedure, and neither Rule 8(b) nor Rule 8(c) contain the same language. See First National Insurance, 2009 WL 22861 at *2. Additionally, courts have noted that it may be unfair to require a defendant, who has only 21 days to respond to a complaint, to adhere to the same pleading standard as a plaintiff who often enjoys significantly greater time to develop factual support for claims. See Palmer, 2010WL 2605179 at *4.  This court, however, agrees with the district courts within the Fourth Circuit that have considered the question and concludes that “the considerations of fairness, common sense and litigation efficiency underlying Twombly and Iqbal ” mandate that the same pleading requirements apply equally to complaints and affirmative defenses.

In California, at least two district courts have so held, in contexts outside the FDCPA.    Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, ___ F.Supp.2d ___, 2010 WL 2507769 (N.D. Cal. 2010) (Patel, J.); CTF Dev., Inc. v. Penta Hospitality, LLC, 2009 WL 3517617 (N.D. Cal. 2009) (Alsup, J.).  A pretty good article on the subject can be found here.