Solving a Pleading Plague: Why Federal Courts Should Strike Insufficient Affirmative Defenses under the Twombly-Iqbal Plausibility Standard

The plausibility standard is the remedy to the rampant pleading of meritless affirmative defenses in federal courts. Set forth in Bell Atlantic Corp v. Twombly, and later clarified in Ashcroft v. Iqbal, the plausibility standard requires pleadings to contain sufficient factual allegations that give rise to a plausible claim for relief. In both Twombly and Iqbal, the Supreme Court used the plausibility approach to dismiss factually-deficient complaints. Applying the plausibility test to insufficient affirmative defenses produces the same result. The central proposition of this Note is that federal courts should analyze affirmative defenses under the Twombly-Iqbal plausibility standard. In order to provide context for this argument, it is first necessary to explain the process of pleading in the federal courts. By examining the development and framework of the Federal Rules of Civil Procedure, and discussing the historical and current state of the federal pleading standard, Part II of this Note is dedicated to this task. District courts are split on whether the plausibility standard should apply to affirmative defenses. Despite this divide, no Circuit Court of Appeals has directly ruled on this issue. Part III of this Note provides these courts with the pragmatic and textual reasons to support extending the plausibility standard to affirmative defenses in the future