Page 2 - John Hundley 2011

The split which has occurred elsewhere is also evident in Illinois’ federal courts, as is the majority
in favor of applying Iqbal-Twombly to defenses. Indeed, while the view is not unanimous, courts
in all three of Illinois’ federal districts have come down in favor of
the view that the heightened pleading standards apply. See Pavlik
v. FDIC, 2010 WL 3937621 *4 (N.D. Ill. Oct. 5, 2010); OSF Healthcare
System v. Banno, 2010 WL 431963 *2 (C.D. Ill. Jan. 29, 2010); Carretta
v. May Trucking Co., 2010 WL 1139099 *2 (S.D. Ill. Mar. 19, 2010); In
re Mission Bay Ski & Bike, Inc., 2009 WL 2913438 *6 (Bankr. N.D. Ill.
Sept. 9, 2009). But see Leon v. Jacobson Transp. Co., 2010 WL
4810600 *1 (N.D. Ill. Nov. 19, 2010) (respectfully disagreeing with
majority); Bank of Montreal v. SK Foods, LLC, 2009 WL 3824668 **3-4
(N.D. Ill. Nov. 13, 2009) (striking one defense but not another); Wilbert
Funeral Serv., Inc. v. Custom Serv. Unltd., LLC, 2010 WL 4627663 *2
(N.D. Ill. Nov. 5, 2010) (noting issue but striking defense as insufficient in any case).

Several observations may be offered concerning this state of affairs.
First, all of this trial court authority could go “out the window” if authoritative appellate
decisions took a different course. However, the current majority view, in addition to its majority
status, appears also to be the better-reasoned view. While it is too soon to know for sure, appellate
authority, when it comes down, appears likely to follow the majority of the trial courts.
Second, as courts become increasingly sensitive to the implications of Iqbal and Twombly for
affirmative defenses, courts are likely to condone less of the conclusory pleading which has
been common in affirmative defenses in the past. While defective defenses
have to be challenged by motion to strike under Federal Rule of Civil Procedure
12(f), and motions to strike are notoriously disfavored (see Davis v. Ruby Foods,
th
Inc., 269 F.3d 818, 821 (7 Cir. 2001); 5C WRIGHT & MILLER, FEDERAL PRACTICE &
PROCEDURE CIVIL § 1380 (West 3d ed.)), the better view, even before Twombly, was
that affirmative defenses are pleadings and subject to the same standards as other
pleadings. E.g., Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294
th
(7 Cir. 1989). Accordingly, look for courts increasingly to strike the one-sentence
defenses which historically have been a staple of defendants’ pleadings.
Third, look for courts to examine the quality, not just the length, of defendants’ defenses. To be
sure, factual detail is one aspect of the Iqbal-Twombly doctrine, but the other is that that detail must
make the legal conclusion of the defense plausible. That aspect gives courts the authority to weed
out pleadings that they don’t think are serious, and look for that authority to be used on defenses.
The Iqbal and Twombly decisions thus are having far-reaching impacts on federal practice – all
without nominally changing provisions that the Federal Rules are to be administered to “secure the
just, speedy and inexpensive determination of every action” (Rule 1) and pleadings to be “short and
plain” (Rule 8).

John\SharpThinking\#41b.doc

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