Striking Boilerplate Defenses in Federal District Court

Plaintiffs in federal court must file long, detailed complaints to avoid motions to dismiss for failing to meet the Supreme Court’s Twombly/Iqbal pleading standards. So, it can be vexing when a corporate defendant files answer with boilerplate affirmative defenses.

The Supreme Court has not addressed what standard defendants must meet when they plead, and the judiciary are divided on the point. However, at the time of writing, some of the judges in the District of Maryland apply the Twombly/Iqbal standard and will strike an affirmative defense that does not provide “fair notice of the factual basis for a claim or defense.” Bradshaw v. Hilco Receivables, LLC.

Is it an affirmative defense?

The first issue in decide whether to move to strike a particular affirmative defense is whether it’s actually an affirmative defense at all. Defendants will often include “affirmative defenses” that just deny elements on the claim. For something to be an affirmative defense, it must be listed in Fed. R. Civ. P. 12 as an affirmative defense, or meet the 4th Circuit’s test. The test is whether the defense would “bar . . . the right of recovery even if the general complaint were more or less admitted to.” Emergency One, Inc., v. American Fire Eagle Engine Co., Inc.

Under this approach, defenses of “failure to state a claim” maybe affirmative defenses. Compare Malibu Media, LLC v. Popp (“The Court concludes that failure to state a claim is not an acceptable affirmative defense because it has not been recognized as an affirmative defense.”) with Ulyssix Techs., Inc. (treating failure to state a claim as an affirmative defense, but expressing uncertainty).

Does it provide fair notice of the underlying facts?

If a defense is a true affirmative defense then it must give notice of the facts on which it depends under the Twombly/Iqbal standard. The defenses that are stricken will usually fall far below this standard and “contain no facts and [be] too conclusory to provide fair notice of the grounds on which the defense stand.” Topline Solutions, Inc. v. Sandler Systems, Inc., Civ. No. L-09-3102, 2010 WL 2998836, *2 (Oct. 1, 2010)

Because motions to strike defenses are rare and generally limited to the worst kind of boilerplate defenses, there is little discussion of the facts the must be pleaded for each defense. The Statute of Limitations provides one example. In both Topline and Ulyssix Tech. Inc. v. Orbital Network Eng. Inc., statute of limitations defenses were stricken because they “fail[ed] to reference the appropriate statute of limitations or the operative dates.” Ulyssix Tech., Inc.

Allegations that statutes are constitutional provide another example. A defense that relies on unconstitutionality must “at the very least, cite the state statutory provisions and constitutional rights to which it is referring, and set forth a factual basis indicating the reason why these provisions are unconstitutional.” Bradshaw.

Is it clearly insufficient as a matter of law?

A defense that is “clearly insufficient as a matter of law” may be stricken. Bradshaw. An example would be a defense that is not viable as a result of prior rulings in the same case, or a defense which has been rejected as a matter of law by a binding authority. Examples of both appear in Bradshaw.

Are you filing for the right reasons?

Grant of a motion to strike is discretionary. Such motions are “generally disfavored,” in particular because they can be used merely as a delaying tactic. Before filing a motion to strike, you should have a good reason, such as:

  • Defendant’s defenses are obviously inapplicable to your case
  • Defendant’s defenses are so vague you would have to propound discovery to find out the basic facts supporting them
  • Defendant’s defenses are entirely generic and appear to be used in every case regardless of their applicability

What happens next?

Motions to Strike are generally disfavored, but may be granted where defenses are clearly unsupported by facts. However, the defendant will almost certainly be given an opportunity to amend its answer to plead the defenses properly, and abandon those defenses that are inapplicable or totally unsupported by fact. If this happens you have achieved your objective.