United States District Court, W.D. Missouri, Western Division
ORDER AND OPINION DENYING PLAINTIFF'S MOTION TO
is Plaintiff's Motion to Strike, (Doc. 15), which seeks
an order striking the affirmative defenses asserted in this
case. For the reasons discussed below, the Motion to Strike
filed a one-count Complaint in state court, alleging that
Defendant violated the Fair Debt Collection Practices Act
(“FDCPA”), 15 U.S.C. § 1692. Defendant
removed the case to this Court, (Doc. 1), and filed an Answer
that includes five affirmative defenses. In summary, those
defenses allege that (1) the Complaint fails to state a
claim, (2) Plaintiff has not suffered an injury, (3)
Defendant acted in good faith, (4) Plaintiff failed to
mitigate damages, and (5) Defendant's actions were
consistent with law. Plaintiff contends that Defendant's
affirmative defenses have not been plead with sufficient
particularity to as required by Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) and Ashcroft v.
Iqbal, 556 U.S. 662 (2009). Defendant argues that
Twombly and Iqbal do not apply to
affirmative defenses. As discussed below, the Court agrees
court may strike from a pleading an insufficient defense . .
..” Fed.R.Civ.P. 12(f). Plaintiff contends that the
Defendant's affirmative defenses are insufficient because
they do not contain the specificity required by
Iqbal and Twombly. The Eighth Circuit has
not addressed whether Iqbal and Twombly
apply to affirmative defenses. The undersigned has previously
considered this issue and for the following reasons concluded
that Iqbal and Twombly do not apply to
affirmative defenses. See Hiskey v. Musician's
Friend, Inc., No. 16-00279 (W.D. Mo. July 11, 2016)
(Doc. 27, p. 2-4).
before Iqbal and Twombly were decided, the
Eighth Circuit determined that an affirmative defense
predicated on the statute of limitations does not need to be
pleaded with any degree of particularity. Zotos v.
Lindbergh School Dist., 121 F.3d 356, 361 (8th Cir.
1997). There is no reason to think the Eighth Circuit meant
to establish one rule for defenses based on the statute of
limitations and a different rule for all other defenses. The
Eighth Circuit has also held that “[t]he rules . . .
only require a defendant to state in short and plain terms
its defenses to a plaintiff's claim.” Wisland
v. Admiral Beverage Corp., 119 F.3d 733, 737 (8th Cir.
1997). This was the state of the law with respect to
affirmative defenses when Iqbal and Twombly
were decided, and those cases do not compel the conclusion
that the Eighth Circuit's approach was wrong. As another
district judge in this Circuit has observed, “[t]he
Eighth Circuit, if presented with the question, might well
conclude that Zotos has been abrogated by
Iqbal and Twombly . . . . But
Zotos is squarely on point, and Iqbal and
Twombly are not, which means Zotos remains
the law of this Circuit.” Infogroup, Inc. v.
DatabaseLLC, 95 F.Supp.3d 1170, 1193 (D. Neb. 2015).
This Court is not empowered to decide that Zotos and
other, similar cases from the Eighth Circuit are no longer
valid. Furthermore, since the Court issued its Order in
Hiskey, there has been no binding authority applying
Iqbal and Twombly to affirmative defenses.
the textual difference between Rule 8(a)(2) and Rule
8(b)(1)(A) augments the Court's conclusion. Rule 8(a)(2)
requires the plaintiff to plead “a short and plain
statement of the claim showing that the pleader is
entitled to relief.” (emphasis supplied). As
Twombly explains, demonstrating an entitlement to
relief “requires more than labels and conclusions, and
a formulaic recitation of the elements of a cause of action
will not do . . . Factual allegations must be enough to raise
a right to relief above the speculative level.” 550
U.S. at 555. In contrast, a defendant need not plead the
basis for an affirmative defense or set forth a basis for
entitlement to the defense; Rule 8(b)(1)(A) only requires
that the defendant “state in short and plain terms it
defenses.” This difference demonstrates that
Iqbal and Twombly do not compel the
conclusion that the Eighth Circuit's prior decisions are
application of Iqbal and Twombly to
defenses is impractical. Another district judge in this
Circuit has succinctly summarized the matter:
[P]laintiffs and defendants are in much different positions.
Typically, a plaintiff has months-often years-to
investigate a claim before pleading that claim in federal
court. By contrast, a defendant typically has 21 days to
serve an answer. Fed.R.Civ.P. 12(a)(1)(A)(i). Whatever one
thinks of Iqbal and Twombly, the
“plausibility” requirement that they impose is
more fairly imposed on plaintiffs who have years to
investigate than on defendants who have 21 days.
Wells Fargo & Co. v. United States, 750
F.Supp.2d 1049, 1051 (D. Minn. 2010). It is theoretically
possible (as some district judges have held) to require a
defendant to “wait” and then seek leave to amend
the Answer to assert affirmative defenses as they are gleaned
during discovery, but this would unnecessarily complicate and
prolong the litigation. “Plaintiffs would often resist
those motions on the grounds that the proposed affirmative
defenses would be futile. Thus, another round of motion
practice would be added to many cases, increasing the burdens
on the federal courts, and adding expense and delay for the
parties.” Id. at 1052. In contrast, there is
little harm to leaving affirmative defenses in place because
“[i]n a typical case, it quickly becomes apparent that
most of the affirmative defenses are not viable, and the
parties simply ignore them. No. judicial intervention is
necessary.” Id. Similarly, many affirmative
defenses are not really defenses at all; their presence does
not aid the defendant and their absence does not aid the
for the reasons stated above, Plaintiff's Motion to
Strike Defendant's affirmative defenses based on
Iqbal and Twombly must be denied.