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District Courts Extend Twombly to Affirmative Defenses

By Brian Robison and Alithea Z. Sullivan

The Supreme Court raised the bar for federal-court plaintiffs in 2007’s Bell Atlantic Corp. v. Twombly[1] by clarifying the standard for deciding motions to dismiss for failure to state a claim. Previously, a claim would be dismissed only if it appeared “beyond doubt that the plaintiff [could] prove no set of facts in support of his claim which would entitle him to relief.”[2] Twombly rejected this standard in favor of a rule requiring a complaint to state “enough facts to state a claim to relief that isplausible”—not merely “conceivable.”[3] Under Twombly’s standard, plaintiffs’ claims would come under increased scrutiny, forcing complainants to allege sufficient factual bases for their contentions or face dismissal. Accordingly, Twombly has been widely regarded as an added obstacle for plaintiffs—and an unalloyed benefit to defendants.

But the benefits of Twombly may not be so one-sided after all. In several recent cases, defendants have been held to the heightened pleading standards of Twombly for their affirmative defenses. Although the trend has drawn little attention from commentators, this view is quickly finding favor in more and more jurisdictions.

While no court of appeals has confronted the issue, many federal district courts have weighed in on whether Twombly’s pleading requirements apply to affirmative defenses in defendants’ answers. The majority of these courts—in Texas,[4] New York,[5] California,[6] Wisconsin,[7] Illinois,[8] Louisiana,[9] Minnesota,[10] Vermont,[11] Missouri,[12] Kansas,[13] and Florida[14]—have opted to apply Twombly to affirmative defenses. Some of these courts extended Twombly on the basis of pre-Twombly precedent, confirming that “an affirmative defense is subject to the same pleading requirements as the Complaint.”[15] Other courts, concluding that “sauce for the goose is sauce for the gander,”[16] found Twombly applicable to both claims and affirmative defenses, because the purpose underlying the requirement—“to provide enough notice to the opposing party that indeed there is some plausible, factual basis for the assertion and not simply a suggestion of possibility that it may apply to the case”[17]—applies equally to both. The courts also played down the additional burden that Twombly would place on defendants, observing that defendants were permitted leave to amend their pleadings[18] and stressing that Twombly’s requirement that a pleading include “more than labels and conclusions”[19] is nothing new, because even before Twombly, a bare-bones recital of a boilerplate affirmative defense was considered insufficient.[20]

However, district courts in Pennsylvania,[21] Alabama,[22] and Colorado[23] have deemed Twombly inapplicable to affirmative defenses under various theories. Some of these courts concluded that Twombly sought to interpret only Federal Rule of Civil Procedure 8(a) (concerning claims) and did not intend to alter the interpretation of Federal Rule 8(c) (concerning affirmative defenses).[24] Others found it “reasonable to impose stricter pleading requirements on a plaintiff who has significantly more time to develop factual support for his claims than a defendant who is only given 20 days to respond to a complaint and assert its affirmative defenses.”[25]

Other jurisdictions are uncertain. District courts in Delaware,[26] Tennessee,[27] New Jersey,[28] and Massachusetts[29] have explicitly declined to decide the question. Two districts—the Eastern District of Michigan[30] and the Western District of Oklahoma[31]—have issued widely divergent opinions.

Although many district courts have extended Twombly to the pleading of affirmative defenses, the issue is far from settled. District courts in more than half of the states have not yet decided whether the Twombly pleading standard applies to affirmative defenses. Moreover, the courts of appeals may be willing to invalidate their pre-Twombly holdings treating affirmative defenses and complaint claims equally in a way that district courts were not. Until more courts weigh in on the matter and clarify the state of the law, Twombly’s expansion is an issue potential defendants should monitor with care.

Keywords: Litigation, Twombly, district courts, failure to state a claim, trial evidence

Brian Robison is a partner in the Austin, Texas, office of Vinson & Elkins, LLP. Alithea Z. Sullivan is an associate in the Austin, Texas, office of Vinson & Elkins, LLP. She is also a member of the Complex Commercial Litigation Practice Group.

This article appears in the Summer 2010 issue of Proof, from the Trial Evidence Committee.



  1. 550 U.S. 544 (2007).
  2. Conley v. Gibson, 355 U.S. 41, 45–46 (1957).
  3. Twombly, 550 U.S. at 570.
  4. Mumphrey v. Credit Solutions of Am., Inc., No. 3:09-cv-1208-M, 2010 WL 652834, at *1 (N.D. Tex. Feb. 24, 2010); Lehman Bros. Holdings, Inc. v. Cornerstone Mortgage Co., No. H-09-0672, 2009 WL 2900740, at *3 & n.11 (S.D. Tex. Aug. 31, 2009); Teirstein v. AGA Med. Corp., No. 6:08cv14, 2009 WL 704138, at *6 (E.D. Tex. Mar. 16, 2009); 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).
  5. Tracy ex rel. v. NVR, Inc., No. 04-CV-6541L, 2009 WL 3153150 at *7 (W.D.N.Y. Sept. 30, 2009); Aspex Eyewear, Inc. v. Clariti Eyewear, Inc., 531 F. Supp. 2d 620, 622 (S.D.N.Y. 2008).
  6. CTF Development, Inc. v. Penta Hospitality, LLC, No. C 09-02429-WHA, 2009 WL 3517617, at *8 (N.D. Cal. Oct. 26, 2009); Anticancer Inc. v. Xenogen Corp., 248 F.R.D. 278, 282 (S.D. Cal. 2007). But cf. Sorensen v. Spectrum Brands, Inc., No. 09cv58-BTM, 2009 WL 5199461, at *1(S.D. Cal. Dec. 23, 2009) (using pre-Twombly standards to determine sufficiency of affirmative defenses without mention of Twombly’s potential applicability).
  7. Voeks v. Wal-Mart Stores, No. 07-C-0030, 2008 WL 89434, at *6 (E.D. Wis. Jan. 7. 2008); Greenheck Fan Corp. v. Loren Cook Co., No. 08-cv-335-jps, 2008 WL 4443805, at *1–2 (W.D. Wis. Sept. 25, 2008).
  8. OSF Healthcare Sys. v. Banno, No. 08-1096, 2010 WL 431963, at *2 (C.D. Ill. Jan. 29, 2010); Darnell v. Hoelscher, Inc., No. 09-204-JPG, 2009 WL 4675884, at *1–2 (S.D. Ill. Dec. 4, 2009); Bank of Montreal v. SK Foods, LLC, No. 09 C 3479, 2009 WL 3824668, at *3–4 (N.D. Ill. Nov. 13, 2009); SEG Liquidation Co., LLC v. Stevenson, No. 07-C-3456, 2008 WL 623626, at *2 (N.D. Ill. Mar. 6, 2008).
  9. Cosmetic Warriors Ltd. v. Lush Boutique, LLC, No. 09-6381, 2010 WL 481229, at *1 (E.D. La. Feb. 1, 2010).
  10. E.E.O.C. v. Hibbing Taconite Co., No. 09-0729, 2009 WL 5610134, at *5–6 (D. Minn. Dec. 7, 2009).
  11. In re Montagne, No. 08-10916, 2010 WL 538216, at *3 (Bankr. D. Vt. Feb. 8, 2010).
  12. Premium Standard Farms, LLC v. Travelers Property & Cas. Co., No. 09-0699-CV-W-GAF, 2009 WL 4907063 (W.D. Mo. Dec. 14, 2009) (applying Twombly “plausibility” standard).
  13. Hayne v. Green Ford Sales, Inc., No. 09-2202-JWL-GLR, 2009 WL 5171779, at *2–3 (D. Kan. Dec. 22, 2009).
  14. FDIC v. Bristol Home Mortgage Lending, LLC, No. 08-81536-CIV, 2009 WL 2488302, at *2 (S.D. Fla. Aug. 13, 2009); Torres v. TPUSA, Inc., No. 2:08-cv-618-FtM-29DNF, 2009 WL 764466, at *1 (M.D. Fla. Mar. 19, 2009); Home Management Solutions, Inc. v. Prescient, Inc., No. 07-20608-CIV, 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007).
  15. See, e.g., Cosmetic Warriors Ltd. v. Lush Boutique, LLC, No. 09-6381, 2010 WL 481229, at *1 (E.D. La. Feb. 1, 2010) (citing Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999)); OSF Healthcare Sys. v. Banno, No. 08-1096, 2010 WL 431963, at *2 (C.D. Ill. Jan. 29, 2010) (citing Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989)).
  16. Kaufmann v. Prudential Ins. Co., No. 09-10239-RGS, 2009 WL 2449872, at *1 (D. Mass. Aug. 6, 2009).
  17. Hayne, 2009 WL 5171779, at *3.
  18. Id. at *4.
  19. Twombly, 550 U.S. at 545.
  20. In re Montagne, No. 08-10916, 2010 WL 538216, at *3 (Bankr. D. Vt. Feb. 8, 2010); OSF Healthcare Sys., 2010 WL 431963, at *2; 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); Voeks v. Wal-Mart Stores, No. 07-C-0030, 2008 WL 89434, at *6 (E.D. Wis. Jan. 7. 2008).
  21. Romantine v. CH2M Hill Eng’rs, Inc., No. 09-973, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009).
  22. Westbrook v. Paragon Sys., Inc., No. 07-0714-WS-C, 2007 U.S. Dist. LEXIS 88490, at *1–2 (S.D. Ala. Nov. 29, 2007).
  23. Holdbrook v. SAIA Motor Freight Line, LLC, No. 09-cv-02870-LTB-BNB, 2010 WL 865380, at *2 (D. Colo. Mar. 8, 2010).
  24. See Romantine, 2009 WL 3417469, at *1; Westbrook, 2007 U.S. Dist. LEXIS 88490, at *1–2.
  25. Holdbrook, 2010 WL 865380, at *2.
  26. See Sun Microsystems, Inc. v. Versata Enterprises, Inc., 630 F.Supp.2d 395, 408 n.8 (D. Del. 2009) (explaining disparity of opinions among district courts and concluding that resolution was unnecessary).
  27. See Del-Nat Tire Corp. v. A to Z Tire & Battery, Inc., No. 2:09-cv-02457-JPM-tmp, 2009 WL 4884435, at *2 (W.D. Tenn. Dec. 8, 2009) (declining to address issue).
  28. Huertas v. U.S. Dep’t of Educ., No. 08-3959, 2009 WL 2132429 (D.N.J. July 13, 2009) (noting absence of case law in jurisdiction and proceeding to apply pre-Twombly precedent).
  29. Kaufmann v. Prudential Ins. Co. of Am., No. 09-10239-RGS, 2009 WL 2449872, at *1 (D. Mass. Aug. 6, 2009) (assuming, without deciding, that Twombly applies to affirmative defenses).
  30. Compare First Nat’l Ins. Co. of Amer. v. Camps Serv., Ltd., No. 08-cv-12805, 2009 WL 22861, at *2 (E.D. Mich. Jan. 5, 2009) (rejecting Twombly’s application to affirmative defenses), with United States v. Quadrini, No. 2:07-CV-13227, 2007 WL 4303213, at *4 (E.D. Mich. Dec. 6, 2007), and Shinew v. Wszola, No. 08-14256, 2009 WL 1076279, at *2–5 (E.D. Mich. Apr. 21, 2009) (finding Twombly applicable).
  31. Compare Gibson v. Officemax, Inc., No. CIV-08-1289-R (W.D. Okla. Jan. 30, 2009) (extending Twombly to affirmative defenses), with Schlottman v. Unit Drilling Co., No. CIV-08-1275-C, 2009 WL 1764855, at *1 (W.D. Okla. June 18, 2009) (declining to address whether Twombly applied to affirmative defenses), and Henson v. Supplemental Health Care Staffing Specialists, No. CIV-09-397-HE (W.D. Okla. July 30, 2009) (refusing to extend Twombly).


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