In Chock v. Stryker Corp., 2025 WL 1797933 (E.D. Cal. June 30, 2025), the plaintiff mounted a TwIqbal assault towards the defendant’s affirmative defenses and largely misplaced. The court docket’s opinion is brief and to the purpose, and affords classes. The case is especially helpful, as most of the pleaded objects at concern are widespread. Most importantly, the court docket holds that TwIqbal doesn’t apply to affirmative defenses. Instead, a lesser customary of “truthful discover” does.
The plaintiff alleged {that a} compression plate manufactured by the defendant had been implanted in her arm after which ruptured, inflicting severe accidents. The defendant filed a solution with, as is typical, many affirmative defenses. The plaintiff filed a movement to strike numerous affirmative defenses and to deem sure allegations within the criticism admitted.
A movement to strike travels beneath Fed. R. Civ. P. 12(f), which allows a court docket to strike from a solution “an inadequate protection or any redundant, immaterial, impertinent, or scandalous matter.” What makes an affirmative protection “inadequate”? Are affirmative defenses topic to Twombly and Iqbal and their requirement for facial plausibility?
The Chock case was ruled by Ninth Circuit legislation and, mirabile dictu, that legislation turned out to be fairly good for defendants on the problem of pleading sufficiency for affirmative defenses. The Ninth Circuit has not utilized TwIqbal to affirmative defenses. Rather, the Ninth Circuit applies the “truthful discover” customary to affirmative defenses. That is smart. After all, the plaintiff has the burden of proof and may have the opportunity to nail down plausibility earlier than submitting a criticism. The poor defendant is merely enjoying … effectively, protection.
The “truthful discover” customary for affirmative defenses is a “low bar that doesn’t require nice element,” nevertheless it does require a defendant to present “some factual foundation” for the defenses. Generally, “merely referring to doctrine or statute is inadequate to afford truthful discover.”
Uh oh. We have seen the reply/affirmative protection sausage being made many instances, and it’s seldom fairly. As with interrogatory responses, the duty of drafting solutions and affirmative defenses is commonly assigned to essentially the most junior attorneys. For each duties, lamentably, the same old modus operandi is to toss in all the pieces, together with the kitchen sink. Why is that? As Kierkegaard put it, “Fear and Trembling.” Surplusage may be unhealthy, however waiver is worse. Insecurity and inelegance and inexperience often lead to lengthy lists of affirmative defenses, a few of which have solely distant or tangential or wishful connection to the case. Common sense won’t be fairly lifeless when it comes to itemizing affirmative defenses, however it’s not less than incarcerated.
Good factor for the defendant in Chock that its litany of affirmative defenses was not overly promiscuous. Good factor, too, that the Chock court docket spared the defendant from needing to fulfill TwIqbal pleading requirements. Nevertheless, the court docket nonetheless insisted on one thing greater than mere incantations of affirmative defenses.
To wit:
- An assertion of the statute of limitations as an affirmative protection requires identification of the actual statute being invoked. The defendant in Chock didn’t refer to a specific statute of limitations, so the affirmative protection was stricken. But the defendant was afforded the suitable to strive once more.
- Failure to state a declare shouldn’t be an affirmative protection in any respect and was stricken. There can be no proper to take a stab at that one once more. That is newsworthy. We’re undecided we’ve ever seen a solution that didn’t checklist failure to state a declare as an affirmative protection. Live and be taught.
- Several different affirmative defenses within the Chock reply have been “well-established” and, subsequently, “don’t require further factual element” past their identification. “[A]t the pleading stage, it’s troublesome to conceive what further details might be provided.” These affirmative defenses included comparative fault, mitigation of damages, launch, and estoppel. Count us (and fellow protection hacks) relieved. Feel free to inform your junior associates to go forth and endlessly checklist these affirmative defenses, like Homer’s catalogues in The Iliad.
- Even so, the court docket in Chock had a beef with the defendant’s “reservation” of unidentified “different” defenses. That reservation was not a correct affirmative protection and was stricken. There is not any level to it. The Chock court docket noticed that such a reservation “serves no objective.” It is like saying that, simply in case we’ve not listed each conceivable protection beneath the solar, we would like you to know we’ll proceed to consider whether or not there are any extra and, if we do, you’ll hear from us. Almost all of us do this, and it’s fallacious.
Beyond affirmative defenses, the plaintiff in Chock additionally sought to have among the criticism allegations deemed admitted when the defendant’s reply stated that the paperwork referenced within the criticism “communicate for themselves.” The court docket held that such a formulation was an acceptable “conditional admission” whereby the defendant admitted that the paperwork existed however reserved the suitable to dispute the which means of them because the litigation proceeds. That response “satisfie[d] the necessities of” Rule 8.
The overarching lesson of Chock is that defendants may be free from the TwIqbal customary in authoring their solutions, however they aren’t free from the requirement of giving some thought to the affirmative defenses. We have no idea if much less is extra, however extra shouldn’t be essentially higher.