GooseA case decided just last week, Dodson v. Strategic Restaurants Acquisition Co., 2013 WL 3120322 (E.D. Cal. 2013) is worth study for any ADA or FHA defense attorney. There is plenty of technically useful information because the Court has provided an extensive survey of cases discussing whether Iqbal and Twombly apply to affirmative defenses. This is an unsettled question, and the Court lists many of the pro and con authorities. There is also an important moral lesson for defense attorneys. The Court isn’t likely to hold the defendant to a lower pleading standard than the standard for the plaintiff. What’s sauce for the goose is sauce for the gander.

Dodson is a very typical ADA lawsuit. The plaintiff, a quadriplegic, claimed to have encountered architectural barriers at a Burger King restaurant owned by the defendant. The defendant’s lawyers did what many do and filed an answer that included 14 more or less boilerplate affirmative defenses. They were alleged in the most conclusory form with no facts at all.  The plaintiff moved to strike on the ground that they were not pleaded with the specificity required by Iqbal and Twombly, the Supreme Court’s groundbreaking precedents on pleading under the Federal Rules.

It is worth noting that the plaintiff himself provided reasonably specific descriptions of the architectural barriers he encountered. While the Court’s opinion never mentions this, it isn’t hard to see that it was much easier for the Court to hold the defendant to a pleading standard already met by the plaintiff.

The Court’s discussion reviews in some depth the open question of whether Iqbal and Twombly apply to affirmative defenses. Iqbal and Twombly themselves dealt with the allegations in the plaintiff’s complaint, never discussing whether the heightened plausibility standards they announced would apply to affirmative defenses. Not surprisingly, older Circuit cases on pleading affirmative defenses applied the “fair notice” standard in place before Iqbal and Twombly.

The District Courts, at least in the Ninth Circuit, are divided on the application of the heightened plausibility standard to affirmative defenses, leaving the Court in Dodson free to reach its own conclusions. The Court starts by making it clear that he does not agree with Iqbal and Twombly. He writes: “The court begins by noting that, in its view, neither Twombly nor Iqbal appears to adhere to the plain language of the Federal Rules of Civil Procedure.” Nonetheless, following the rationale of the two cases the Court determines that if Rule 8 requires more than mere “fair notice” by plaintiffs then, based on similarities in language, it must require more than mere “fair notice” with respect to affirmative defenses. The Court also emphasizes the essential fairness of this holding, noting that like a plaintiff, the defendant has the burden of proof on its affirmative defenses, and that just as it is costly, wasteful and unnecessary to force defendants to conduct discovery on insufficiently pleadings claims, so it is costly, wasteful and unnecessary to force plaintiffs to conduct discovery on poorly pleaded affirmative defenses. So he applies the ancient legal maxim, “turn about is fair play.”

As a final note about the fairness of having everyone play by the same rules, the Court strikes all but one affirmative defense.  With respect to the defense of limitations, the Court lets it stand, observing that:

As plaintiff has failed to allege in his complaint the date(s) on which the alleged violations occurred, defendant cannot be expected to articulate the statutes of limitations that may bar plaintiff’s claims.

The Court concludes with a lesson that many defense lawyers need to learn, pointing out that standing is not an affirmative defense because the plaintiff has the burden of proof on standing.

A defense which demonstrates that plaintiff has not met its burden of proof as to an element plaintiff is required to prove is not an affirmative defense.

Quoting Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002). Standing is properly addressed by a denial or motion to dismiss.

There are huge advantages for an ADA defendants to holding a plaintiff to Iqbal and Twobly pleading standards. It improves the chances of success on a motion to dismiss and limits the scope of the claim and thus the cost of discovery. It can also help eliminate “discriminatory policy” cases like the one I discussed in my previous blog. However, if defendants expect to take advantage of the heightened plausibility standard they must anticipate that they will be held to the same higher standard. No more boilerplate would be a good principle for cutting the cost and aggravation of any ADA or FHA lawsuit.