Does an Affirmative Defense in an Answer have to state factual grounds? Maybe
Iqbal & Twombly are two SCUS cases that essentially require a “heightened” set of facts (i.e., more detail) to be stated in the complaint in order to state a cause of action or the claim can be struck on motion. The question that has been floating around is whether or not that should apply to the affirmative defenses that a defendant may raise in their answer. Some courts around the country have said yes including this court’s Eastern Division, but as S.D. Ohio Western Div. Chief Mag. Judge Karen L Litkovitz just ruled in a FCRA case alleging incorrect credit reporting information, that isn’t required in there. McAfee v. Transunion, LLC 2024 U.S. Dist. LEXIS 162598, 2024 WL 4135006 (Sept. 10, 2024). Defendant raised 9 often seen defenses with mere statements and no supporting facts: failure to state a claim, the credit reports were true, they followed reasonable procedures, statute of limitations, estoppel, waiver, laches, failure to mitigate, damages were caused by plaintiff’s acts/omissions or non-parties (the group sometimes referred to as “the usual suspect” defenses).
Plaintiff
pro se then filed a Rule 12(f) motion to strike the defenses, pointing out that
defendant did not file a motion to dismiss or move for summary judgment on any
of the issues.
Noting that the 6th Circuit has never really addressed the question of whether or not Iqbal-Twombly’s heightened pleading applied to affirmative defenses, and that the Southern District Courts were split on the issue (citations in opinion), the court declined to require it here, noting that the objective was merely to “give fair notice to plaintiff of the nature of the defenses” and also that the plaintiff pro se attempt to support his argument by claiming his cases to be “the law of the district” was rejected “because there is no such thing as “the law of the district” (citations in opinion).
While this court’s decision certainly seems sound in the specific jurisdiction where it occurred, defense counsel may be ignoring the longer range effect of raising some of these so-called affirmative defenses since they really are not affirmative defenses at all but merely denials of elements of some claims. Moreover, in a fee-shifting case like the FCRA or Ohio’s CSPA and many other statutes, they open up relevant fact-driven avenues which a plaintiff must explore with full-blown discovery since a successful affirmative defense can wipe out their case, thereby increasing the attorney fees and costs for all the parties, which may come back to “bite” the defense if the plaintiff prevails and then files for more attorney fees than might have occurred and blames the defense for causing it. Still, the well-heeled nature of some corporate defendants when combined with the nature of defending by raising every argument possible, plants the seed.
Ultimately, the real question is simply who is going to reap what gets sowed. In a fee-shifting case, that may not be the defendant.
