In Odyssey Imaging, LLC v. Cardiology Associates of Johnson, LLC, decided recently in the United States District Court for the Western District of Virginia, Roanoke Division, United States District Court judge Samuel G. Wilson held that Federal Rule of Civil Procedure 8(b) and 8(c) “do not require a court to subject defenses pleaded by a defendant to the same stringent plausibility standards that Iqbal and Twombly demand of claims for relief under Rule 8(a).” The Twombly-Iqbal pleading requirements were discussed in the Wednesday, August 4, 2010 post on this blog. That earlier post discussed two Virginia Federal Court opinions which held that the Supreme Court’s holdings in the recent cases of Bell Atlantic v. Twombly and Ashcroft v. Iqbal require that affirmative defenses be plead with factual specificity.
However, in this most recent opinion, Judge Wilson “decline[d] to hold affirmative defenses to the same pleading standards required by Rule 8(a).” The judge observed that “[i]nstead the court will simply look to whether those defenses are contextually comprehensible.” Judge Wilson reasoned that “[k]nowledge at the pleading stage is often asymmetrical, disproportionately favoring the pleading of a claim by a plaintiff who has had the opportunity to time its filing.” The judge further observed that, “[w]hile the plaintiff often can conduct an investigation before filing the complaint to ensure its allegations are adequately supported, the defendant must respond quickly after being served.” Thus, Judge Wilson reasoned that a defendant’s answer is not required to “show” the court or the plaintiff that the defendant is entitled to raise the defendant’s defenses, even though Iqbal and Twombly do require that the plaintiff “show” in his complaint that he is entitled to the relief sought in his complaint.
Thus, the split of authority on this issue widens. We presume that the issue may eventually be decided by the United States Supreme Court.
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