Affirmative Defenses in ERISA Litigation for Disability Benefits

What is an Affirmative Defense?

An “affirmative defense” is a fact or set of facts other than those alleged by the plaintiff which, if proven by the defendant-insurer, defeats or mitigates the legal consequences of the defendant-insurer's otherwise unlawful conduct. Affirmative defenses, which the defendant-insurer is required to prove, are distinguishable from mere defects in the plaintiff's prima facie case, which merely need to be denied.

An affirmative defense does not directly controvert the allegations of the claim to which it responds; instead, it alleges new facts that, if true, defeat the claim.

Some affirmative defenses to a claim for relief must be asserted in the answer or they may be waived. See Fed. R. Civ. P. 12(b), (h)(1); John R. Sand & Gravel Co. v. United States, 552 U.S. 130, 133 (2008). Affirmative defenses that may be waived if not asserted include lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process. Fed. R. Civ. P. 12(h)(1).

In ruling on a motion to strike affirmative defenses, the court must treat all well pleaded facts as admitted and cannot consider matters outside the pleadings. Sun-Flex Co. Inc. v. Softview Computer Products Corp., 760 F. Supp. 962, 964 (N.D. Ill. 1990).

A defendant-insurer will typically plead several affirmative defenses in its answer. The following affirmative defenses are recognized and enumerated in Fed. R. Civ. P. 8(c).

Enumerated Affirmative Defenses

While the following are statutorily recognized as affirmative defenses, a defendant-insurer must plead them with a “short and plain statement of facts” and not just as “bare bones conclusory allegations.” Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989). See also: Wyshak v. City National Bank, 607 F.2d 824 (9th Cir. 1979) (“The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.”)

∙                 Accord and Satisfaction is an agreement to resolve a claim in which the parties to a contract agree on new terms than the ones in the original contract. As a valid affirmative defense, it must be pled with more than just the words “accord and satisfaction.” To merely allege these words, without a “short and plain statement of facts,” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Arbitration and Award is a decision on the merits by an arbitration tribunal in an arbitration that is analogous to a judgment in a court of law. As a valid affirmative defense, it requires more than just pleading the words “arbitration and award.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Assumption of Risk is a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Knight v. Jewett, 3 Cal. 4th 296 (1992). As a valid affirmative defense, it requires more than just pleading the words “assumption of the risk.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989). 

∙                 Incurred Risk is a conscious and deliberate course of conduct with knowledge of circumstances, and as with assumption of risk, it requires more than just pleading the words “incurred risk.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Contributory negligence is a failure of an injured plaintiff to act prudently, which is considered a contributory factor in the injury suffered, thereby reducing the amount of damages recovered from the defendant. It requires more than just pleading the words “contributory negligence.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Duress (coercion, necessity, compulsion) is when a defendant acts unlawfully, due to some outside force that left defendant without other reasonable alternatives, in order to avoid a threat of immediate harm. It requires more than just pleading the word “duress.” To merely allege this word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Estoppel requires (1) a misrepresentation by the party against whom estoppel is asserted; (2) reasonable reliance on that misrepresentation by the party asserting estoppel; and (3) detriment to the party asserting estoppel.” United States v. Anaya-Aguirre, 704 F.3d 514, 519 (7th Cir. 2013). Merely pleading the word “estoppel” offers a plaintiff no insight about the basis for the affirmative defense in question. To merely allege this word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 Failure of consideration is where a party to a contract fails to perform in accordance with the contract, or if the consideration he is required to give otherwise fails in whole or in part through his fault, then the other party may invoke this failure as a basis for rescinding or terminating the contract, as long as the failure or refusal to perform constitutes such a material breach as to justify rescission or termination. Taliaferro v. Davis, 216 Cal. App. 2d 398, 412, 31 Cal.Rptr. 164, 172 (1963); Cal. Civ. Code §1689.

                  To merely allege the words “failure of consideration,” without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 Fraud involves a material representation, which was false when made, with knowledge that it was false or with a reckless disregard for its falsity, with the intent that it should be acted on, with reliance on the part of the defendant, and with a resultant injury suffered by defendant as a result of the reliance. Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216. As an affirmative defense, it requires more than just pleading the word “fraud.” To merely allege this word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 Illegality means that defendant's performance under its contract of insurance is illegal to perform; thus, it should be excused from further performance. As with any affirmative defense, the burden is on the defendant to prove the illegality of contract. Novak v. Gray, 469 Fed. Appx. 811, 813-14 (11th Cir. 2012) (defendant has burden of proving defense of illegality of contract). A valid affirmative defense requires more than just pleading the word “illegality.” To merely allege this word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 Injury by Fellow Servant is a common law doctrine that if a worker was hurt because of another worker's negligence, then the co-worker was held liable rather than the employer. It requires more than just pleading the words “injury by fellow servant.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Laches is an unreasonable delay by the plaintiff in bringing the claim. It consists of two elements: (1) unreasonable delay in asserting one's rights; and (2) a resulting prejudice to the defending party. Operating Engineers Local 324 Health Care Plan v. G&W Construction, 783 F.3d 1045, 1053 (7th Cir. 2015). Laches is an equitable defense, and it is ordinarily applied only to claims for equitable relief (such as injunctions), and not to claims for legal relief (such as monetary damages).

                  Because ERISA's civil enforcement scheme does not provide a statute of limitations for benefit claims under Section 502(a)(1)(B), 29 U.S.C. § 1132(a)(1)(B), courts have universally borrowed the "most analogous" state statute of limitations, which in most cases is the state statute of limitations that governs written contracts.

                  In the Ninth Circuit, it is a three-year statute of limitations with respect to ERISA claims, which begins when the plaintiff has actual knowledge of the “nature of the alleged breach.” Sulyma v. Intel Corp. Investment Policy Committee, 909 F.3d 1069 (9th Cir. 2018).

                  Courts have also permitted plans to establish their own limitations period, which may be shorter than the period that would otherwise apply under state law. The only requirements are that the contractual limitations period be "reasonable" and adequately described to participants. Abena v. Metropolitan Life Insurance Co., 544 F.3d 880, 883 (7th Cir. 2008).

                  The doctrine of laches is inapplicable when Congress has provided a statute of limitations to govern the action.” Because Congress has already prescribed a statute of limitations for ERISA actions, laches is not a valid defense. Miller v. Maxwell's Intern. Inc., 991 F.2d 583, 586 (9th Cir. 1993).

                  Further, as an affirmative defense, to merely allege the word “laches, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin. Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 License typically involves a defendant who has been given a legal right to use a good or property that the plaintiff is now filing a lawsuit over (e.g., copyright infringement). As an affirmative defense, it requires more than just pleading the word “license.” To merely allege this word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Payment and Release involves a payment by the debtor, which is the discharge of a pecuniary obligation, and a relinquishment of a right by the creditor, which may be given gratuitously or for inadequate consideration. As an affirmative defense, it requires more than just pleading the words “payment and release.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Ratification is a legal doctrine which operates to validate an otherwise voidable contract, as when plaintiff consents to defendant's actions, and cannot then complain. As an affirmative defense, it requires more than just pleading the word “ratification.” To merely allege the word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

                  Moreover, “[a] contract that is void as against public policy or statute, cannot be made valid by ratification.” A contract which violates ERISA is “illegal and, therefore, unenforceable.” Downey Venture v. LMI Ins. Co., 66 Cal. App. 4th 478, 511, 78 Cal. Rptr. 2d 142, 162 (1998).

∙                 Res Judicata prevents plaintiff from re-litigating claims that were previously brought, or which could have been brought between the same parties to the litigation. To merely allege the words “res judicata,” without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id.

∙                 Statute of Frauds requires that certain documents (e.g., real estate) must be in writing or else they are unenforceable. California Civil Code §1624. Under ERISA, a plan document, which describes the plan's terms and conditions, must be in writing. An ERISA plan may exist even without a written document; it is simply out of compliance, and its terms may be more difficult to prove. However, to merely allege the words “statute of frauds”, without a “short and plain statement of facts” and to fail to “allege the necessary elements of the alleged claims” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 Statute of Limitations. A statute of limitations bars a claimant's claim. The Ninth Circuit has held that ERISA's three-year statute of limitations begins when the plaintiff has actual knowledge of the “nature of the alleged breach.” However, the limitations period is generally set by contract (i.e., the plan document), which courts will enforce if it is “reasonable.” Heimeshoff v. Hartford Life & Acc. Ins. Co.,134 S. Ct. 604, 610 (2013).

                  In the absence of a contractual limitations period, courts generally look to state law and apply the most analogous state statute of limitations. Johnson v. State Mut. Life Assur. Co. of Am., 942 F.2d 1260, 1261–63 (8th Cir. 1991). To merely allege the words “statute of limitations,” without a “short and plain statement of facts” and failing to allege the “necessary elements,” is insufficient. Heller Fin, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

∙                 Waiver requires more than just pleading the word “waiver.” Waiver is “the intentional relinquishment of a known right.” United States v. Rand Motors, 305 F.3d 70, 773 (7th Cir. 2002). Merely pleading the word “waiver” offers a plaintiff no insight about the basis for the affirmative defense in question. Estoppel and waiver are equitable doctrines which often arise from a common nucleus of operative fact. If a defendant-insurer fails to allege any facts in support of either of these affirmative defenses, plaintiff will be unable to discern whether they arise from a common nucleus of operative fact. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).

Other Affirmative Defenses

In addition to the affirmative defenses enumerated in Rule 8(c), there are other affirmative defenses that a defendant-insurer may assert in its answer to an ERISA complaint. They must plead them with a “short and plain statement of facts” and not just as “bare bones conclusory allegations.” Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989). See also: Wyshak v. City National Bank, 607 F.2d 824 (9th Cir. 1979) (“The key to determining the sufficiency of pleading an affirmative defense is whether it gives plaintiff fair notice of the defense.”)

∙                 Did Not Act Arbitrarily or Capriciously is not an affirmative defense because it merely repeats defendant-insurer's denial of allegations in plaintiff's complaint. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 No Proximate Cause is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. It does not apply to an ERISA case, because causation is typically not an element of any of plaintiff's claims, thus lack of proximate causation is not a defense to those claims. 28 U.S.C.§ 3304; 29 U.S.C. §§ 1306, 1307, 1362. Id.

∙                 Harm Did Not Result from an Act or Omission is not an affirmative defense because it merely repeats defendant-insurer's denial of allegations in plaintiff's complaint. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

∙                 Acted with Care, Skill, Prudence, and Diligence is not an affirmative defense because it merely repeats defendant-insurer's denial of allegations in plaintiff's complaint. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

∙                 No Breach of Duty does not apply to an ERISA case, because breach of duty is typically not an element of any of plaintiff's claims. Accordingly, the absence of a breach of duty is not a defense available to a defendant-insurer. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

∙                 Failure to State a Claim is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. It is a conclusion of law and is inadequate. Instead of pleading this affirmative defense, the defendant-insurer may file a motion to dismiss if it deems that is appropriate. Id.

∙                 Conditions Precedent to an obligation to perform are those acts or events, which occur subsequently to the making of a contract, that must occur before there is a right to immediate performance and before there is a breach of contractual duty (e.g., exhaustion of remedies). As an affirmative defense, it requires more than just pleading the words “conditions precedent.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989). It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory.

∙                 No Coverage /Barred by Terms and Conditions, as an affirmative defense, requires more than just pleading the words “no coverage.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory.

∙                Conduct Not Arbitrary or Capricious is not an affirmative defense because it is merely a repeat denial of allegations contained in plaintiff's complaint. Therefore, it is not appropriately pleaded as an affirmative defense and may be stricken with prejudice. It is not a recognized affirmative defense to plaintiff's claims and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 Set-off    is not an affirmative defense; it is an independent cause of action that is required to be pled as a counterclaim. [Note: some courts allow it as an affirmative defense.] However, merely pleading the word “set off” offers a plaintiff no insight about the basis for the affirmative defense in question. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

∙                 Compliance with the Terms of the Plan is not an affirmative defense because it merely denies any violation of ERISA. Therefore, it is not appropriately pleaded as an affirmative defense and may be stricken with prejudice. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

∙                 Standing is the requirement that a person who brings a lawsuit be a proper party to request adjudication of the issue involved, such as a plaintiff who claims economic injury or loss. As an affirmative defense, it requires more than just pleading the word “standing.” To merely allege this word, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989). It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory.

∙                 Unclean Hands denies damages or equity to a plaintiff for misconduct that is directly related to the matter in which he/she seeks relief. It does not apply to any past misconduct. Kendall-Jackson Winery, Ltd. v. Superior Court, 76 Cal. App. 4th 970, 974 (9th Cir. 1999). As an affirmative defense, it requires more than just pleading the words “unclean hands.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989). It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory.

∙                 Failure to Join necessary parties, under Fed. R. Civ. P. 19(a)(1)(A) requires that a “person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined” if “in the person's absence, the court cannot accord complete relief among existing parties.”   It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 Exhaustion of Remedies. ERISA law does not require that a plaintiff exhaust all administrative remedies prior to filing lawsuit. However, most courts have upheld an “exhaustion” requirement, nonetheless. 29 C.F.R. Section 2560.503-1; Perrino v. S. Bell & Tel. Co., 209 F.3d 1309, 1315 (11th Cir. 2000) ("[A]s a general rule, plaintiffs in ERISA actions must exhaust available administrative remedies before suing in federal court.") As an affirmative defense, it requires more than just pleading the words “exhaustion of remedies.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294-1295 (7th Cir. 1989).   It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory.

∙                 Improper Venue. ERISA provides that a lawsuit may be filed (1) where a plan is administered; (2) where the breach took place; or (3) where a defendant resides or may be found, ERISA § 502. As an affirmative defense, it requires more than just pleading the words “improper venue.” To merely allege these words, without a “short and plain statement of facts” and without alleging its “necessary elements,” is insufficient. Id. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory.

∙                 Preemption. ERISA has a very broad preemptive clause, which states that ERISA supersedes “any and all State laws” relating to “any employee benefit plan.” ERISA § 514. However, ERISA's preemption is not a basis for dismissal. Instead, the action is removed to federal court. Bartholet v. Reishauer A.G., 953 F.2d 1073, 1077-78 (7th Cir. 1992). It is not a recognized affirmative defense to plaintiff's claims. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 Discretion to the Plan Administrator. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101 (1989), the United States Supreme Court gave the plan administrator absolute discretion in interpreting and applying the plan's terms and determining eligibility for benefits. Thus, so long as “Firestone” language appears in the plan, judicial review of a benefits denial is limited to whether the plan administrator acted “arbitrarily and capriciously” — i.e., a highly deferential standard of review intended to prevent only the most clear and egregious errors. By contrast, if Firestone language does not appear in the plan, a court may engage in the highest degree of scrutiny — de novo review — which permits review of even the smallest errors. [But see: California Insurance Code § 10110.6 that prohibits discretionary clauses in long-term disability plans. In Orzechowski v. Boeing Co. Non-Union LTD Plan, No. 14-55919, 856 F.3d 686 (9th Cir. 2017), the Ninth Circuit held that § 10110.6 applied equally to ERISA cases.] [See: “Discretionary Clauses After Cal. Ins. Code § 10110.6.”]

                  Discretion to the plan administrator is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 Failure to Mitigate traditionally applies to suits in tort or contract law and does not appear to have an application to ERISA actions. In re State Street Bank & Trust Co. Fixed Income Funds Inv. Litig., 772 F. Supp. 2d 519 (S.D.N.Y. 2011). Recovery on any type of ERISA claim is generally never reduced or denied because of plaintiff's alleged failure to mitigate damages. Failure to mitigate is inapplicable to ERISA. Schleibaum v. Kmart Corp., 153 F.3d 496, 502-503 (7th Cir. 1998). It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 No Breach of Duty applies to plan fiduciaries, requiring them to discharge their duties with respect to a plan solely in the interest of the participants and beneficiaries, and it is not an affirmative defense because it merely repeats defendant-insurer's denial of allegations in plaintiff's complaint. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 Reservation of Right to Supplement is not a proper affirmative defense. Reis Robotics USA, Inc. v. Concept Indus., Inc., 462 F. Supp. 2d 897, 907, (N.D. Ill. 2006). The defendant-insurer has an obligation to comply with the Federal Rules of Civil Procedure with respect to any supplement to its answer, and a purported reservation of rights is irrelevant and ineffectual. Fed. R. Civ. P. 8(c)(1), Fed. R. Civ. P. 12(b). It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012).

∙                 Ratification requires more than just pleading the word “ratification.” To merely allege the word “ratification”, without a “short and plain statement of facts” and to fail to “allege the necessary elements of the alleged claims” is insufficient. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

∙                 Intervening or Superseding Cause requires more than just pleading the words “intervening or superseding cause” To merely allege the words “intervening or superseding cause”, without a “short and plain statement of facts” and to fail to “allege the necessary elements of the alleged claims” is insufficient. It is not a recognized affirmative defense to plaintiff's claims, and it is impermissibly conclusory. Id.

The Winforge Test for Affirmative Defenses

The Seventh Circuit, in Winforge, Inc. v. Coachmen Indus., Inc., 691 F.3d 856, 872 (7th Cir. 2012), proposed a “test” to identify affirmative defenses, which states that a defense is an affirmative defense if it is (1) specifically enumerated in Fed. R. Civ. P. 8(c); (2) if the defendant bears the burden of proof; or (3) if the defense does not require converting the plaintiff's proof.

A court will strike an affirmative defense if it is insufficient because it lacks factual detail, is pleaded as a conclusion of law, is deficient as a matter of law, fails to state a claim, or fails to state the count or counts to which it is intended to apply, or if it simply denies plaintiff's allegations. “This type of allegation is not an affirmative defense which adds substance to the litigation; it is clutter. Surface Shields, Inc. v. Poly-Tak Prot. Sys., Inc., 213 F.R.D. 307, 308 (N.D. Ill. 2003).

The “Fair Notice” Standard or the “Plausibility” Standard

An affirmative defense is insufficient if it fails as a matter of law, or contains such little factual material that it cannot meet even the less demanding standard of “fair notice” under Wyshak v. City Nat'l Bank, 607 F. 2d 824, 827 (9th Cir. 1979), let alone the “plausibility” standard under Bell Atlantic Co. v. Twombly, 550 U.S. 544, 555, 559 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 1940, 1950 (2009), and courts are free to strike it down.

With or Without Prejudice

Courts may strike down an affirmative defense with or without prejudice. Striking down an affirmative defense without prejudice allows a defendant-insurer an opportunity to “fix” its deficient affirmative defense, if it can. If defendant-insurer decides to replead its defective affirmative defenses, it should do so properly, without repeating allegations that are superfluous to its affirmative defenses, and ensuring that its affirmative defenses are not vague or ambiguous and that they are directed to a particular count, allegation, or legal basis of plaintiff's complaint. Tsavaris v. Pfizer, Inc., 310 F.R.D. 678, 682 (S.D. Fla. 2015).                                     

However, courts may strike down affirmative defenses with prejudice, when it is apparent that it will be impossible for the defendant-insurer to prove a set of facts in support of that affirmative defense.

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