On July 26, 2012, Judge Amy Totenberg of the Northern District of Georgia issued an order granting-in-part and denying-in-part a counterclaimant’s Motion to Strike Affirmative Defenses in Catch Curve, Inc. v. Integrated Global Concepts, Inc., Case No. 1:06-cv-02199-AT.  Integrated Global Concepts, Inc. (“IGC”), defendant and counterclaimant, moved to strike affirmative defenses raised by Catch Curve, Inc. (“Catch Curve”), plaintiff and counterclaim defendant, in response to IGC’s counterclaims against Catch Curve, pursuant to Rule 12(f) of the Federal Rules of Civil Procedure.

IGC contended that none of Catch Curve’s defenses were pled with enough specificity to give fair notice of the nature of the defenses.  IGC argued that the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), which clarified the pleading standards for a complaint under Rule 8(a) of the Federal Rules of Civil Procedure, extends to the pleading of affirmative defenses under Rules 8(b)(1) and 8(c).  Judge Totenberg noted that courts have been in disagreement whether Twombly‘s “plausibility” standard applies to the pleading of affirmative defenses, pointing to decisions in the Northern District of Alabama (declining to apply Twombly) and the Northern District of Ohio (applying Twombly).  Judge Totenberg cited Eleventh Circuit case law which indicates that the purpose of Rule 8(c) is to give the opposing party notice of the affirmative defense and a chance to rebut it, and she then stated that “it is not at all obvious that affirmative defenses were impacted by Twombly.”  See Navarro v. Santos Furniture Custom Design, Inc., 372 F. App’x 24, 27 (11th Cir. 2010).  Declining to extend the plausibility pleading requirement to affirmative defenses, Judge Totenberg instead reviewed the defenses to “ensure they provide fair notice of the nature of the defense and the grounds upon which it rests.”

Judge Totenberg also addressed the common but ill-advised practice of including a mere denial of an element of plaintiff’s prima facie case as an affirmative defense.  For instance, regarding IGC’s defense that the “Counterclaims fail to define a cognizable relevant market,” Judge Totenberg explained that “[t]his pleading alleges an infirmity somewhere in the counterclaims” but is simply a denial and not an affirmative defense.  A common example in patent infringement cases is where a defendant asserts an affirmative defense of non-infringement (e.g., “Defendant has not infringed Plaintiff’s patent”).  Judge Totenberg’s order suggests that this would not be an adequate affirmative defense at all.  Even if that was not the case, why would a defendant raise an affirmative defense on an issue in which the plaintiff already bears the burden of proof?  Of course, a counterclaim for declaratory judgment of noninfringement would be different.