In Topline Solutions, Inc. v. Sandler System, Inc., No. L-09-3102, 2010 WL 2998836 (D. Md. Jul. 27, 2010), Chief Judge Legg granted Plaintiff’s Motion to Strike Defendant’s affirmative defenses pursuant to Fed. R. Civ. P. 12(f). The rule permits a court to strike from “any pleading any insufficient defense.” The basis for striking the affirmative defenses was a lack of factual support.

This marked the first occasion where the U.S. District Court for the District of Maryland required a Defendant to adhere to the heightened pleading standards announced by the Supreme Court in Twombly and Iqbal vis-à-vis affirmative defenses. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955 (2007) (holding that a complaint must state a plausible claim to relief and avoid conclusory statements, otherwise, it will not survive a motion to dismiss); see also Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (holding that Twombly applies to all federal civil complaints). With this Order, the Court joined the majority of federal district courts that require Defendants to comply with Iqbal and Twombly in Answers.

In Topline, a breach of contract case, Chief Judge Legg struck all seven of the Defendant’s “boilerplate” affirmative defenses. Where the Defendant stated that the “Complaint is barred in whole or in part by the Statute of Limitations,” it should have included a “reference to the appropriate Statute of Limitations or the operative dates.” And where the Defendant argued that the “Complaint is barred in whole or in part by the Plaintiff’s failure to mitigate damages…[and] failure to perform as he represented he could or agreed,” Defendant “[did not] state with any specificity what the plaintiff failed to do.” Ultimately, the defenses were stricken because they “contain[ed] no facts and [were] too conclusory to provide fair notice.” The Court allowed the Defendant twenty days to amend its answer.

Following up on Topline, in Bradshaw v. Hilco Receivables, LLC, No. RDB-10-113 (D. Md. Aug. 12, 2010), Judge Bennett struck five of the Defendant’s thirteen affirmative defenses in an alleged unlawful debt collection practices case. Defendant’s Answer asserted that “Section 7-301 and Section 14-201 of the Maryland statutes relied upon by Plaintiff are unconstitutional.” Finding this defense to be “deficient,” the Court noted that the Defendant must, “at the very least, cite the state statutory provisions and constitutional rights to which it is referring, and set forth a factual basis indicating the reason why those provisions are unconstitutional.” Regarding the following three affirmative defenses: (1) “At all times Defendant acted in good faith”; (2) “Plaintiff lacks standing”; and (3) “The State of Maryland has provided implicit consent to Defendant,” all three “merely recite bare legal conclusions and do not contain sufficient factual language needed to impart fair notice to [the Plaintiff].” The Court granted the Defendant thirty days to amend.

Part of the Court’s rationale in extending Twombly and Iqbal to affirmative defenses was that courts liberally allow Defendants to amend their answers under Fed. R. Civ. P. 15(a). Under this rule, Defendants may later assert affirmative defenses that become apparent during the discovery process. Accordingly, Defendants may use this rule as a remedy to offset the new heightened pleading requirements.