Circuit Splits

Growing Division Over Iqbal/Twombly’s Applicability to the Pleading of Affirmative Defenses

Back in February, I wrote about a growing division among district courts over the applicability of Iqbal/Twombly’s heightened pleading standard to the pleading of affirmative defenses. As anyone who has filed a 12(b)(6) motion knows, the Supreme Court issued a pair of decisions—Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009)—that require plaintiffs to (1) state each claim using short and plain sentences (Fed. R. Civ. P. 8(a)(2)) and then (2) back those claims up with “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Although a federal circuit court has yet to address the issue, several more district courts have joined the conflict since my post earlier this year. As such, here is an updated case list of the competing camps:

A. Cases declining to adopt the Iqbal–Twombly heightened pleading standard for the pleading of affirmative defenses.

1.    Romantine v. CH2M Hill Eng’rs, Inc., No. 09-973, 2009 U.S. Dist. LEXIS 98699, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009);

2.    Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC (N.D. Ind. Jan. 30, 2012);

3.    Paducah River Painting, Inc. v. McNational Inc., 2011 U.S. Dist. LEXIS 131291 (W.D. Ky. Nov. 14, 2011) (“[T]here is the argument that the increased pleading standard for defendants will inevitably spawn more motions to strike by plaintiffs, a result at odds with the prevailing case law discouraging Rule 12(f)'s usage.”);

4.    Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1259 (D. Kan. 2011);

5.    J&J Sports Prods., Inc. v. Munoz, No. 1:10-CV-1563, 2011 WL 2881285, at *1 (S.D. Ind. July 15,         2011);

6.    Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051–52 (D. Minn. 2010);

7.    Riemer v. Chase Bank USA, N.A., 10 C 6150, 2011 U.S. Dist. LEXIS 56307, 2011 WL 2110242, at *2 (N.D. Ill. May 25, 2011);

8.    Aros v. United Rentals, Inc., 2011 U.S. Dist. LEXIS 125870, 2011 WL 5238829, at *3 (D. Conn. Oct. 31, 2011);

9.    Chiancone v. City of Akron, No. 5:11CV337, 2011 U.S. Dist. LEXIS 108444, 2011 WL 4436587, at * 3 (N.D. Ohio, Sept. 23, 2011);

10.    Baroness Small Estates, Inc. v. BJ's Rests., Inc., No. SACV 11-00468, 2011 U.S. Dist. LEXIS 86917, 2011 WL 3438873, at *5 (C.D. Cal. Aug. 5, 2011); Kohler v. Big 5 Corp., 2:12-cv-00500-JHN-SPx (C.D. Cal. Apr. 30, 2012) (“[T]he Court declines to extend the Twombly/Iqbal pleading standards to affirmative defenses in this case.”);

11.    Ailey v. Midland Funding, LLC, No. 3:11-CV-77, 2011 U.S. Dist. LEXIS 81028, 2011 WL 3049283, at *3 (E.D. Tenn. July 25, 2011);

12.    Michaud v. Greenberg & Sada, P.C., No. 11-CV-1015, 2011 U.S. Dist. LEXIS 77521, 2011 WL 2885952, at *2 (D. Colo. July 18, 2011);

13.    Merchants Commercial Bank v. Tillet, Civil No. ST-10-CV-364, 2011 V.I. LEXIS 26, 2011 WL 4703090 (V.I. Super. Apr. 20, 2011);

14.    Jeeper's of Auburn, Inc. v. KWJB Enter., LLC, No. 10-13682, 2011 U.S. Dist. LEXIS 53492, 2011 WL 1899195, at *2 (E.D. Mich. Mar. 16, 2011);

15.    F.T.C. v. Hope Now Modifications, LLC, No. 09-1204 (JBS/JS), 2011 U.S. Dist. LEXIS 24657, 2011 WL 883202, at *2 (Dist. N.J. Mar. 10, 2011) (“[W]hile Rule 8 requires the plaintiff seeking relief to 'show' that she is entitled to such relief, it requires the defendant asserting an affirmative defense to merely 'state' that defense.”);

16.    Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 U.S. Dist. LEXIS 116358, 2009 WL 4981730, at *4 (Dist. V.I. Dec. 8, 2009) ("There is no requirement under Rule 8(c) that a defendant 'show' any facts at all.");

17.    Tyco Fire Products LP v. Victaulic Co., 777 F.Supp. 2d 893, 900–01 (E.D. Pa. 2011) (cautioning that a higher pleading standard would present an unreasonable burden on defendants who "risk the prospect of waiving a defense at trial by failing to plead it . . . and have a short amount of time to develop the facts necessary to do so . . . ." (citations omitted));

18.    Lane v. Page, 272 F.R.D. 581, 596 (D.N.M. 2011) ("Plaintiffs can prepare their complaints  over years, limited only by the statute of limitations, whereas defendants have only twenty-one days to file their answers." (citations omitted));

19.    Odyssey Imaging, LLC v. Cardiology Assocs. of Johnston, LLC, 752 F. Supp. 2d 721, 725 (W.D. Va. 2010);

20.    McLemore v. Regions Bank, Nos. 3:08-cv-0021, 3:08-cv-1003, 2010 U.S. Dist. LEXIS 25785, 2010 WL 1010092, at *12 (M.D. Tenn. Mar. 18, 2010);

21.    First Nat’l Ins. Co. of Am. v. Camps Servs., Ltd., No. 08-cv-12805, 2009 U.S. Dist. LEXIS 149, 2009 WL 22861, at *2 (E.D. Mich. Jan. 5, 2009);

22.    Loucks v. Shorest, L.L.C., Civil Action No. 2:12-cv-304-WHA (wo) (M.D. Ala. 2012) (“Upon review of the split in authority among district court cases, this court finds persuasive those cases which have not applied Iqbal and Twombly to affirmative defenses, based at least in part on the reasoning that Iqbal and Twombly were interpreting the language of Rule 8(a), not Rule 8(c).”);

23.    Trustmark Ins. Co. v. C & K Mkt., Inc., No. 10-465, 2011 U.S. Dist. LEXIS 13448, 2011 WL 587574, at *1 (Dist. Or. Feb. 10, 2011);

24.    J & J Sports Prod., Inc., v. Scace, 2011 U.S. Dist. LEXIS 60270, 2011 WL 2132723 at *1-2 (S.D. Cal. May 27, 2011).

25.    Bayer Cropscience AG v. Dow Agrosciences LLC, 2012 U.S. Dist. LEXIS 51913, 3-4 (Dist. Del. Apr. 12, 2012).

B. Cases adopting the Iqbal–Twombly heightened pleading standard for the pleading of affirmative defenses.

26.    Champion Steel Corp. v. Midwest Strapping Prods., 2011 U.S. Dist. LEXIS 136022 (N.D. Ill. Nov. 28, 2011) (applying, without explicitly adopting, theIqbal–Twombley standard to the defendant’s affirmatively pled defense);

27.    Hayne v. Green Ford Sales Inc., 263 F.R.D. 647, 649­­–50 (D. Kan. 2009) (noting the similarity between FRCP 8(a)(1)’s requirement that claims for relief be set forth in “short and plain statement[s]” and FRCP 8(b)(1)(A)’s requirement that affirmative defenses be set forth in “short and plain terms”);

28.    HCRI TRS Acquirer, LLC v. Iwer, 708 F. Supp. 2d 687, 691 (N.D. Ohio 2010) (underlining the goal of decreased litigation by limiting affirmative defenses to those that are plausible);

29.    Safeco Ins. Co. of Am. v. O'Hara Corp., No. 08-CV-10545, 2008 U.S. Dist. LEXIS 48399, 2008 WL 2558015, at *1 (E.D. Mich. June 25, 2008) (extending the heightened pleading requirement to affirmatives defenses to discourage the use of “[b]oilerplate defenses [that] clutter the docket and, further, create unnecessary work”);

30.    Castillo v. Roche Labs. Inc., No. 10-20876-CIV, 2010 U.S. Dist. LEXIS 87681, 2010 WL 3027726, at *3 (S.D. Fla. Aug. 2, 2010);

31.    Palmer v. Oakland Farms, Inc., No. 5:10cv00029, 2010 U.S. Dist. LEXIS 63265, 2010 WL 2605179, at *4 (W.D. Va. June 24, 2010);

32.    CTF Dev., Inc. v. Penta Hospitality, LLC, No. C 09-02429 WHA, 2009 U.S. Dist. LEXIS 99538, 2009 WL 3517617, at *7­–8 (N.D. Cal. Oct. 26, 2009); see also Barnes v. AT&T Pension Benefit, 718 F. Supp. 2d 1167, 1172 (N.D. Cal. 2010); Qarbon.com, Inc. v. eHelp Corp., 315 F. Supp. 2d 1046, 1049- 50 (N.D. Cal. 2004); Solis v. Zenith Capital, LLC, No. 08-4854, 2009 U.S. Dist. LEXIS 43350, at *8-19 (N.D. Cal. May 8, 2009);

33.    Tracy v. NVR, Inc., No. 04-CV-6541L, 2009 U.S. Dist. LEXIS 90778, 2009 WL 3153150, at *7 (W.D.N.Y. Sept. 30, 2009);

34.    Cent. Laborers' Pension, Welfare & Annuity Funds v. Parkland Envtl. Group, Inc., 2011 U.S. Dist. LEXIS 106848 (C.D. Ill. Sept. 20, 2011) (requiring (1) a short, plain statement of an affirmative defense providing notice to the plaintiff and court and (2) “some minimal facts to explain how each such defense applies in this case”);

35.    Folk v. Target Corp., Case No. 12-3199-CV-S-ODS (W.D. Mo. June 4, 2012) (noting that Iqbal and Twombly “do govern the pleading of affirmative defenses”).

4 Reasons Why the FMLA is Ready for the Supreme Court's Review

Are public employees subject to individual liability under the FMLA? I've been following the circuit split over this question since the beginning of the year as it continues to percolate through the lower courts. Back in January (here), we looked at a provision in the FMLA that has led some courts to answer the question presented above in the affirmative, while other courts have answered the question in the negative.

Last Friday the Eastern District of Virginia joined the split over this issue in holding that "public employees may be sued in their individual capacities for alleged violations of the FMLA." Ainsworth v. Loudon Cnty. Sch. Bd., No. 1:11-cv-1228 (JCC/JFA) (E.D. Va. Mar. 16, 2012). The court's opinion in Ainsworth provides a nice summary of the growing body of conflicting authority over this issue:

The Individual Defendants first argue that the FMLA does not permit liability against public employees in their individual capacities. There is a split of authority as to whether public employees qualify as "employer[s]" and hence may be held individually liable under the FMLA. The Fifth and Eighth Circuits have concluded, based on the statutory text, that public employees may be sued in their individual capacities under the FMLA if they act directly or indirectly in the interest of their employer — for example, by exercising hiring and firing authority. See Modica v. Taylor, 465 F.3d 174, 184-87 (5th Cir. 2006); Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002). The Sixth and the Eleventh Circuits have reached the opposite conclusion. See Mitchell v. Chapman, 343 F.3d 811, 825-33 (6th Cir. 2003); Wascura v. Carver, 169 F.3d 683, 685-87 (11th Cir. 1999). The Fourth Circuit has yet to rule on this issue, see Jones v. Sternheimer, 387 F. App'x 366, 369 (4th Cir. 2010) (recognizing that the issue is an open question, and expressing no opinion on the viability of [plaintiff's] claim), while district courts within the Fourth Circuit are split). See Weth v. O'Leary, 796 F. Supp. 2d 766, 776-77 (E.D. Va. 2011), Sheaffer v. Cnty. of Chatham, 337 F. Supp. 2d 709, 727-29 (M.D.N.C. 2004), Cantley v. Simmons, 179 F. Supp. 2d 654, 657-58 (S.D. W.Va. 2002) and Knussman v. State of Maryland, 935 F. Supp. 659, 664 (D. Md. 1996) (public employees can be individually liable under the FMLA) with Sadowski v. U.S. Postal Serv., 643 F. Supp. 2d 749, 757 (D. Md. 2009), Miller v. Cnty. of Rockingham, No. 5:06cv00053, 2007 WL 990135, at *4 (W.D. Va. Mar. 30, 2007) and Keene v. Rinaldi, 127 F. Supp. 2d 770, 777-78 (M.D.N.C. 2000) (public employees cannot be held individually liable under the FMLA). The majority view appears to be that public employees may be individually liable under the FMLA. See Weth, 796 F. Supp. 2d at 776 (citations omitted).

This issue is particularly ripe for review by the Supreme Court for several reasons:

• First, the conflict of law is both deep (dividing both district and appellate courts) and wide (the Fifth and Eighth Circuits are evenly divided with the Sixth and Eleventh Circuits; while the Fourth Circuit has acknowledged the split, but has declined to take a position). 

• Second, the issue has been sufficiently vetted at the district-court level (otherwise known as "percolation"), as evidenced by the volume and variety of district-court decisions addressing the issue. 

• Third, the fact that the issue continues to resurface more than a decade after the Eleventh Circuit's early decision on the matter suggests that it has had enough time to "mature" (i.e., if the Supreme Court decides to decide this issue, it will have more than ten years of briefing and analysis by the lower courts on the issue at its disposal).

• Fourth and finally, the issue affects public employers. This factor greatly enhances the issue's certworthinesss because cert. petitions filed in the Supreme Court by public employers are more likely to raise important constitutional questions, the resolution of which will likely impact a greater number of people than a petition filed by an individual.

Rest assured that CircuitSplits.com will be watching this one closely as it makes its way to the Supreme Court.

Supreme Court Prevents Likely Circuit Split Over Stolen Valor Act

Wow. What a week it has been for the Supreme Court. As if the Court did not already have its fair share of controversial issues to resolve this term—health care reform, GPS tracking, Texas redistricting, and the Arizona Immigration Case, to name a few—yesterday the Supreme Court agreed to hear a challenge to the Fifth Circuit's affirmative-action decision in during its next term. For the latest development in this case, visit the Supreme Court's official case page here, or read the Fifth Circuit's decision here: Fisher v. University of Texas, 631 F.3d 213 (2011). And last Friday, in granting a stay of the Montana court’s ruling rejecting the Court’s Citizens’ United decision, Justice Ginsburg invited parties in the case to submit briefs to “give the court an opportunity to consider whether, in light of the huge sums currently deployed to buy candidates’ allegiance, Citizens United should continue to hold sway.”

Today’s post features yet another closely followed case presently before the Supreme Court. The Supreme Court will hear oral argument in United States v. Alvarez today over the question of whether Congress’s Stolen Valor Act violates the First Amendment by criminalizing false statements about one’s military decorations or medals. To catch up on the latest developments in this case, check out SCOTUSblog's case page here. You can find the Ninth Circuit's decision in this case here: United States v. Alvarez, 638 F.3d 666 (9th Cir. 2011).

As the following excerpt from the Solicitor General’s cert petition illustrates, the Supreme Court has shown a willingness to grant cert in cases that lack a circuit split where such split appears inevitable:

This Court has often reviewed lower-court decisions holding that a federal law is unconstitutional, even in the absence of a circuit split. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010); United States v. Stevens, 130 S. Ct. 1577 (2010); United States v. Williams, 553 U.S. 285 (2008); Gonzales v. Carhart, 550 U.S. 124 (2007); Ashcroft v. ACLU, 542 U.S. 656 (2004); United States v. Morrison,529 U.S. 598 (2000); NEA v. Finley, 524 U.S. 569 (1998); Rubin v. Coors Brewing Co., 514 U.S. 476 (1995). That practice is consistent with the Court’s recognition that judging the constitutionality of an Act of Congress is “the gravest and most delicate duty that this Court is called upon to perform.” Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (quoting Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J.)).

Although the decision in this case is the first from a court of appeals to address the constitutionality of [18 U.S.C. § 704(b)], the issue is a substantial and recurring one. The Eighth, Tenth, and Eleventh Circuits are currently considering challenges to the Act’s constitutionality, and an appeal of a district court decision upholding the Act has recently been filed in the Fourth Circuit. See United States v. Strandlof, No. 10-1358 (10th Cir. argued May 12, 2011) (government’s appeal of district court’s dismissal of information charging defendant with five counts of violating Section 704(b), on the ground that the statute is facially unconstitutional); United States v. Amster, No. 10-12139 (11th Cir. filed May 11, 2010) (defendant’s appeal of district court’s denial of motion for judgment of acquittal on the ground that the Act was facially unconstitutional); United States v. Kepler, No. 11-2278 (8th Cir. filed June 10, 2011) (govern- ment’s appeal of district court’s dismissal of one count of indictment on the ground that Section 704(b) and (d) are unconstitutionally overbroad); United States v. Robbins, No. 11-4757 (4th Cir. filed July 29, 2011) (appeal of decision upholding Section 704(b) against First Amendment challenge, see 759 F. Supp. 2d 815 (W.D. Va. 2011)).

The fact that the case involves a controversial limitation on speech that was struck down by the Ninth Circuit, in addition to the looming circuit split, was apparently too enticing for the Supreme Court to pass up.

[*Photo courtesy of United States Marine Corps, on Flickr]

30 District Courts Divided Over Proper Standard for Pleading Affirmative Defenses

Federal Rule of Civil Procedure 12(f) allows a court to “strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Courts traditionally allowed a defendant to plead their affirmative defenses in general terms as long as it gave the “plaintiff fair notice of the nature of the defense." Lawrence v. Chabot, 182 F. App’x 442, 456 (6th Cir. 2006) (quoting 5 Wright & Miller, Federal Practice and Procedure § 1274).

But in the late 2000s, the Court issued a pair of decisions—Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009)—that impose more onerous pleading requirements on plaintiffs than had previously existed. Under the Iqbal–Twombly heightened pleading standard, a plaintiff must (1) state each claim using short and plain sentences (Fed. R. Civ. P. 8(a)(2)) and then (2) back those claims up with “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Iqbal, 129 S. Ct. at 1949. If either of these prongs are missing, a defendant may file a 12(b)(6) motion to dismiss for failure to state a claim upon which relief may be granted.

As one court recently described, “In their wake, Twombly and Iqbal have provoked a frenzy of district court opinions reexamining” whether affirmative defenses must similarly meet a heightened pleading standard to survive a plaintiff’s 12(f) motion to strike. Paducah River Painting, Inc. v. McNational Inc., No. 5:11-CV-00135-R, 2011 U.S. Dist. LEXIS 131291, 2011 WL 5525938 (W.D. Ky. Nov. 14, 2011). Late last month, a district court in Indiana identified a widespread split in authority among federal district courts over whether the Iqbal–Twombly heightened pleading standard for complaints similarly applies to the pleading of affirmative defenses. See generally Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC (N.D. Ind. Jan. 30, 2012).

So where does your district stand on the issue? Take a look:

A. Cases declining to adopt the Iqbal–Twombly heightened pleading standard for the pleading of affirmative defenses.

1.    Romantine v. CH2M Hill Eng’rs, Inc., No. 09-973, 2009 U.S. Dist. LEXIS 98699, 2009 WL 3417469, at *1 (W.D. Pa. Oct. 23, 2009);

2.    Cottle v. Falcon Holdings Management, LLC, Cause No.: 2:11-CV-95-PRC (N.D. Ind. Jan. 30, 2012);

3.    Paducah River Painting, Inc. v. McNational Inc., 2011 U.S. Dist. LEXIS 131291 (W.D. Ky. Nov. 14, 2011) (“[T]here is the argument that the increased pleading standard for defendants will inevitably spawn more motions to strike by plaintiffs, a result at odds with the prevailing case law discouraging Rule 12(f)'s usage.”);

4.    Falley v. Friends Univ., 787 F. Supp. 2d 1255, 1259 (D. Kan. 2011);

5.    J&J Sports Prods., Cause No. 1:10-cv-1563-WTL-TAB2011 (S.D. Ind. July 15, 2011);

6.    Wells Fargo & Co. v. United States, 750 F. Supp. 2d 1049, 1051–52 (D. Minn. 2010);

7.    Riemer v. Chase Bank USA, N.A., 10 C 6150, 2011 U.S. Dist. LEXIS 56307, 2011 WL 2110242, at *2 (N.D. Ill. May 25, 2011);

8.    Aros v. United Rentals, Inc., 2011 U.S. Dist. LEXIS 125870, 2011 WL 5238829, at *3 (D. Conn. Oct. 31, 2011);

9.    Chiancone v. City of Akron, No. 5:11CV337, 2011 U.S. Dist. LEXIS 108444, 2011 WL 4436587, at * 3 (N.D. Ohio, Sept. 23, 2011);

10.    Baroness Small Estates, Inc. v. BJ's Rests., Inc., No. SACV 11-00468, 2011 U.S. Dist. LEXIS 86917, 2011 WL 3438873, at *5 (C.D. Cal. Aug. 5, 2011);

11.    Ailey v. Midland Funding, LLC, No. 3:11-CV-77, 2011 U.S. Dist. LEXIS 81028, 2011 WL 3049283, at *3 (E.D. Tenn. July 25, 2011);

12.    Michaud v. Greenberg & Sada, P.C., No. 11-CV-1015, 2011 U.S. Dist. LEXIS 77521, 2011 WL 2885952, at *2 (D. Colo. July 18, 2011);

13.    Merchants Commercial Bank v. Tillet, Civil No. ST-10-CV-364, 2011 V.I. LEXIS 26, 2011 WL 4703090 (V.I. Super. Apr. 20, 2011);

14.    Jeeper's of Auburn, Inc. v. KWJB Enter., LLC, No. 10-13682, 2011 U.S. Dist. LEXIS 53492, 2011 WL 1899195, at *2 (E.D. Mich. Mar. 16, 2011);

15.    F.T.C. v. Hope Now Modifications, LLC, No. 09-1204 (JBS/JS), 2011 U.S. Dist. LEXIS 24657, 2011 WL 883202, at *2 (D.N.J. Mar. 10, 2011) (“[W]hile Rule 8 requires the plaintiff seeking relief to 'show' that she is entitled to such relief, it requires the defendant asserting an affirmative defense to merely 'state' that defense.”);

16.    Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 U.S. Dist. LEXIS 116358, 2009 WL 4981730, at *4 (D.V.I. Dec. 8, 2009) ("There is no requirement under Rule 8(c) that a defendant 'show' any facts at all.");

17.    Tyco Fire Products LP v. Victaulic Co., 777 F.Supp. 2d 893, 900–01 (E.D. Pa. 2011) (cautioning that a higher pleading standard would present an unreasonable burden on defendants who "risk the prospect of waiving a defense at trial by failing to plead it . . . and have a short amount of time to develop the facts necessary to do so . . . ." (citations omitted));

18.    Lane v. Page, 272 F.R.D. 581, 596 (D.N.M. 2011) ("Plaintiffs can prepare their complaints  over years, limited only by the statute of limitations, whereas defendants have only twenty-one days to file their answers." (citations omitted));

19.    Odyssey Imaging, LLC v. Cardiology Assocs. of Johnston, LLC, 752 F. Supp. 2d 721, 725 (W.D. Va. 2010);

20.    McLemore v. Regions Bank, Nos. 3:08-cv-0021, 3:08-cv-1003, 2010 U.S. Dist. LEXIS 25785, 2010 WL 1010092, at *12 (M.D. Tenn. Mar. 18, 2010);

21.    First Nat’l Ins. Co. of Am. v. Camps Servs., Ltd., No. 08-cv-12805, 2009 U.S. Dist. LEXIS 149, 2009 WL 22861, at *2 (E.D. Mich. Jan. 5, 2009);

B. Cases adopting the Iqbal–Twombly heightened pleading standard for the pleading of affirmative defenses.

22.    Champion Steel Corp. v. Midwest Strapping Prods., 2011 U.S. Dist. LEXIS 136022 (N.D. Ill. Nov. 28, 2011) (applying, without explicitly adopting, theIqbal–Twombley standard to the defendant’s affirmatively pled defense);

23.    Hayne v. Green Ford Sales Inc., 263 F.R.D. 647, 649­­–50 (D. Kan. 2009) (noting the similarity between FRCP 8(a)(1)’s requirement that claims for relief be set forth in “short and plain statement[s]” and FRCP 8(b)(1)(A)’s requirement that affirmative defenses be set forth in “short and plain terms”);

24.    HCRI TRS Acquirer, LLC v. Iwer, 708 F. Supp. 2d 687, 691 (N.D. Ohio 2010) (underlining the goal of decreased litigation by limiting affirmative defenses to those that are plausible);

25.    Safeco Ins. Co. of Am. v. O'Hara Corp., No. 08-CV-10545, 2008 U.S. Dist. LEXIS 48399, 2008 WL 2558015, at *1 (E.D. Mich. June 25, 2008) (extending the heightened pleading requirement to affirmatives defenses to discourage the use of “[b]oilerplate defenses [that] clutter the docket and, further, create unnecessary work”);

26.    Castillo v. Roche Labs. Inc., No. 10-20876-CIV, 2010 U.S. Dist. LEXIS 87681, 2010 WL 3027726, at *3 (S.D. Fla. Aug. 2, 2010);

27.    Palmer v. Oakland Farms, Inc., No. 5:10cv00029, 2010 U.S. Dist. LEXIS 63265, 2010 WL 2605179, at *4 (W.D. Va. June 24, 2010);

28.    CTF Dev., Inc. v. Penta Hospitality, LLC, No. C 09-02429 WHA, 2009 U.S. Dist. LEXIS 99538, 2009 WL 3517617, at *7­–8 (N.D. Cal. Oct. 26, 2009);

29.    Tracy v. NVR, Inc., No. 04-CV-6541L, 2009 U.S. Dist. LEXIS 90778, 2009 WL 3153150, at *7 (W.D.N.Y. Sept. 30, 2009);

30.    Cent. Laborers' Pension, Welfare & Annuity Funds v. Parkland Envtl. Group, Inc., 2011 U.S. Dist. LEXIS 106848 (C.D. Ill. Sept. 20, 2011) (requiring (1) a short, plain statement of an affirmative defense providing notice to the plaintiff and court and (2) “some minimal facts to explain how each such defense applies in this case”).

So far, to my knowledge, no court of appeals has weighed in on the issue and the district courts listed above are fairly evenly divided.

[Image courtesy of travelet.com.] 

Can Public-Agency Supervisors be Individually Liable Under the FMLA?

Last month we looked at a circuit split over whether the Family and Medical Leave Act (FMLA) provides a cause of action against public employers. (You can read the post here.) To briefly recap, the FMLA tosses public agencies in the pool of deep-pocketed "employers" that may be sued for either (1) interfering with an employee's rights under the statute or (2) retaliating against an employee for exercising his or her right to take family or medical leave under the statute.

Last week, the Third Circuit tackled this issue of first impression in Haybarger v. Lawrence Cty. Adult Probation and Parole, No. 10-3916 (3d Cir. Jan. 31, 2012). One of my favorite blawgs, Lawffice Space, featured Haybarger as its "Case of the Week." Here's an excerpt:

The Third Circuit started with number two. The FMLA defines "employer" to include "any person who acts, directly or indirectly, in the interest of an employer to any of the employees of such employer." The definition also includes "any public agency." So, can we mix those two as a combo deal (i.e. an individual "person" and a "public agency"), to hold a supervisor at a public agency individually liable under the FMLA?

Third Circuit says . . . YES! The Sixth and Eleventh Circuits have already said NO. The Fifth and Eighth, and now the Third, have all said YES (I guess that makes it the "majority view"?). It's a pretty big Circuit split on a fairly common issue so this could make a good Supreme Court case one day. 

You can read the post in its entirety here. For those keeping score at home, here are the cases forming the circuit split mentioned above:

Compare

• Haybarger v. Lawrence Cty. Adult Probation and Parole, No. 10-3916, at 10 (3d Cir. Jan. 31, 2012) ( "an individual supervisor working for an employer may be liable as an employer under the FMLA."); Kilvitis v. Cnty. of Luzerne, 52 F. Supp. 2d 403, 415 (M.D. Pa. 1999) (same); Hewett v. Willingboro Bd. of Educ., 421 F. Supp. 2d 814, 818 (D. N.J. 2006) (same); Hayduk v. City of Johnstown, 580 F. Supp. 2d 429, 477 (W.D. Pa. 2008);
• Modica v. Taylor, 465 F.3d 174, 184 (5th Cir. 2006);
• Darby v. Bratch, 287 F.3d 673, 681 (8th Cir. 2002);

with

• Mitchell v. Chapman, 343 F.3d 811, 829 (6th Cir. 2003) (concluding that the FMLA does not permit individual liability against supervisors employed by public agencies); 
• Wascura v. Carver, 169 F.3d 683, 686 (11th Cir. 1999);

and

• Frizzell v. Sw. Motor Freight, 906 F. Supp. 441, 449 (E.D. Tenn. 1995), aff’d in part, rev’d in part on other grounds, 154 F.3d 641 (6th Cir. 1998) (concluding that an individual supervisor working for an employer may not be liable as an employer under the FMLA);
• Carter v. Rental Unif. Serv., 977 F. Supp. 753, 759 (W.D. Va. 1997) (same).