Virginia Federal Courts Shed More Light on Twombly-Iqbal Pleading Requirements

In Palmer v. Oakland Farms, Inc., decided in the United States District Court for the Western District of Virginia, and Francisco v. Verizon South, Inc., decided in the United States District Court for the Eastern District of Virginia, federal magistrate judges in Virginia ruled that the Twombly-Iqbal pleading standard, derived from the recent U.S. Supreme Court cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal, applies to both complaints and affirmative defenses, and that affirmative defenses based solely on conclusory allegations are not sufficient.

The Francisco Court observed that a split of authority exists among district courts, and then observed that the majority of district courts have held that the Twombly-Iqbal standard applies to affirmative defenses. The Francisco Court was persuaded to join the majority view, and agreed with the Palmer Court that “Twombly and Iqbal strongly suggest that the same heightened pleading standard should also apply to affirmative defenses . . . [because] [t]o require less of a defendant sets the pleading bar far too low.” The Francisco Court noted that the Palmer Court had commented that the requirement that affirmative defenses be pleaded in the courts in conformity with the Twombly-Iqbal standard “simply means . . . that it be pleaded in a way that is intelligible, gives fair notice, and is plausibly suggested by the facts” but that this pleading standard does not “necessarily require[] the assertion of underlying evidentiary facts . . . at a minimum, however, some statement of the ultimate facts underlying the defense must be set forth, and both its non-conclusory factual content and the reasonable inferences from that content, must plausibly suggest a cognizable defense available to the defendant.”