United States District Court, N.D. Indiana, Hammond Division, Lafayette
ANTHONY G. TAYLOR, Plaintiff,
J P MORGAN CHASE, CHASE HOME FINANCE, Defendant.
OPINION AND ORDER
E. MARTIN MAGISTRATE JUDGE.
matter is before the Court on Defendant's Motion for
Leave to File First Amended Answer and Affirmative Defenses
[DE 13], filed by Defendant on September21, 2016. Plaintiff
has responded by filing a Motion to Strike [DE 18], which the
Court has construed as a Response to Defendant's Motion.
See DE 19. Defendants have replied [DE 20].
sued Defendant in state court, alleging breach of contract
and breach of the duty of good faith and fair dealing.
Plaintiff says that, after Defendant offered him a trial
modification to his mortgage payment plan under the federal
Home Affordable Modification Program (HAMP), Defendant
breached its agreement to convert the trial modification into
a permanent modification.
removed the case to federal court and filed an answer to the
complaint. Defendant now asks for leave to file an amended
answer that contains affirmative defenses not contained in
Defendant's initial answer. Plaintiff objects on the
ground that the proposed affirmative defenses do not comply
with the Federal Rules of Civil Procedure.
may amend a pleading with the Court's leave, and the
Court "should freely give leave when justice so
requires." Fed.R.Civ.P. 15(a)(2). The decision to grant
or deny a motion to amend lies within the Court's sound
discretion, but leave to amend is "inappropriate where
there is undue delay, bad faith, dilatory motive on the part
of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, or
futility of the amendment." Villa v. City of
Chicago, 924 F.2d 629, 632 (7th Cir. 1991); Campbell
v. Inger soil Milling Mach. Co, 893 F.2d 925, 927 (7th
Plaintiff does not argue that he will suffer prejudice if
Defendant is allowed to amend its affirmative defenses. Nor
does Plaintiff allege any undue delay, bad faith, or dilatory
motive by Defendant, and Defendant has not repeatedly failed
to cure deficiencies in its affirmative defenses. The only
question, then, is whether the proposed affirmative defenses
are futile. Plaintiff says the proposed affirmative defenses
are futile, because they do not meet the Federal
Rules of Civil Procedure's pleading requirements. See
Heller Fin, Inc. v. Midwhey Powder Co., 883 F.2d 1286,
1294 (7th Cir. 1989) (affirmative defenses are pleadings and
are therefore subject to the Federal Rules of Civil
Procedure's pleading requirements).
familiar pleading requirements for a complaint come
from Bell Ail. Corp. v. Twombly, 550 U.S. 544
(2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009).
To satisfy Twombly and Iqbal and survive a Rule
12(b)(6) motion to dismiss, a complaint must provide "a
short and plain statement of the claim showing that the
pleader is entitled to relief, " see Fed. R.
Civ. P. 8(a)(2), and "must contain sufficient factual
matter, accepted as true, to 'state a claim to relief
that is plausible on its face.'" Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570).
district courts are divided on the question of whether an
affirmative defense must comply with Twombly and
Iqbal's heightened pleading standard. See Cottle
v. Falcon Holdings Mgmt., LLC, No. 11-95, 2012 U.S.
Dist. LEXIS 10478, *3-4 (N.D. Ind. Jan. 30, 2012) (collecting
cases on both sides); Husainy v. Allied Collection Serv.,
Inc., No. 15-95, 2016 U.S. Dist. LEXIS 54073, *2 (N.D.
Ind. Apr. 22, 2016) ("The Seventh Circuit Court of
Appeals has not yet decided whether the pleading standard for
a complaint set forth in [Twombly and
Iqbal] applies to . . . affirmative
courts have held that Twombly and Iqbal do
apply to affirmative defenses. See, e.g., HCRI TRS
Aquirer, LLC v. Iwer, 708 F.Supp.2d 687, 691 (N.D. Ohio
2010) ("the pleading requirements for affirmative
defenses are the same as for claims of relief');
Barnes v. AT&T Pension Benefit Plan, 718
F.Supp.2d 1167, 1171 (N.D. Cal. 2010) ("the vast
majority of courts . . . have extended
Twombly'?, heightened pleading standard to
affirmative defenses") (collecting cases).
courts in the Northern District of Indiana have generally
held that an affirmative defense need not satisfy
Twombly and Iqbal. See Cottle, 2012 U.S.
Dist. LEXIS 10478 at *5 ("This Court agrees with those
cases declining to apply the 'plausibility' standard
of Iqbal and Twombly to affirmative
defenses."); Fletcher v. Hoeppner Wagner &
Evans, LLP, No. 14-231, 2015 U.S. Dist. LEXIS 153057,
*19 (N.D. Ind. Nov. 12, 2015) ("the Court declines to
apply to affirmative defenses the plausibility standard
applied in Iqbal and Twombly");
Husainy, 2016 U.S. Dist. LEXIS 54073 at *2 ("This
Court continues to agree with those cases declining to apply
. . . Iqbal and Twombly to affirmative
this view, an affirmative defense need not satisfy
Twombly and Iqbal? plausibility standard,
but the affirmative defense must still contain a "short
and plain statement" of the defense itself. Heller
Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294
(7th Cir. 1989). Affirmative defenses must be stricken if
they contain "nothing but bare bones conclusory
allegations" without "any short and plain
statement of facts." Id. at 1295 (emphasis
added). In essence, an affirmative defense must "be
adequately pled to put a plaintiff on notice of the
defense." Cottle, 2012 U.S. Dist. LEXIS 10478
at *12; Design Basics, LLC v. Windsor Homes, Inc.,
No. 16-51, 2016 U.S. Dist. LEXIS 91910, *8 (N.D. Ind. July
14, 2016) (denying motion to strike affirmative defenses
because the affirmative defenses were stated "in short
and plain terms" and "sufficiently put [the
plaintiff] on notice of the affirmative defenses");
accord Bielfeldt v. Bourazak, No. 15-1419, 2016 U.S.
Dist. LEXIS 46986, *6 (CD. 111. Apr. 7, 2016) ("Federal
Rule of Civil Procedure 8 requires for affirmative defenses,
at a minimum, fair notice of a party's defense.").
Plaintiff argues that proposed affirmative defenses B, G, H,
M, N, and O use the word "may" and are consequently
not "affirmative" but are rather "a laundry
list of maybes." For example, proposed affirmative
defense B asserts that Plaintiff s claims "may be barred
by his failure to mitigate damages." The Court agrees.
Affirmative defenses must be stricken if they present merely
"bare bones" or "conclusory" allegations,
and the proposed affirmative defenses at issue are not even
conclusory, as Defendant proposes to plead that Plaintiffs
claims "may" be barred for various reasons-not that
the claims are ...