In Chock v. Stryker Corp., 2025 WL 1797933 (E.D. Cal. June 30, 2025), the plaintiff mounted a TwIqbal attack against the defendant’s affirmative defenses and largely lost. The court’s opinion is short and to the point, and offers lessons. The case is particularly useful, as many of the pleaded items at issue are common.  Most importantly, the court holds that TwIqbal does not apply to affirmative defenses. Instead, a lesser standard of “fair notice” does.  

The plaintiff alleged that a compression plate manufactured by the defendant had been implanted in her arm and then ruptured, causing serious injuries.  The defendant filed an answer with, as is typical, many affirmative defenses.  The plaintiff filed a motion to strike various affirmative defenses and to deem certain allegations in the complaint admitted. 

A motion to strike travels under Fed. R. Civ. P. 12(f), which permits a court to strike from an answer “an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.”  What makes an affirmative defense “insufficient”?  Are affirmative defenses subject to Twombly and Iqbal and their requirement for facial plausibility?

The Chock case was governed by Ninth Circuit law and, mirabile dictu, that law turned out to be pretty good for defendants on the issue of pleading sufficiency for affirmative defenses. The Ninth Circuit has not applied TwIqbal to affirmative defenses. Rather, the Ninth Circuit applies the “fair notice” standard to affirmative defenses. That makes sense.  After all, the plaintiff has the burden of proof and should be able to nail down plausibility before filing a complaint.  The poor defendant is merely playing … well, defense. 

The “fair notice” standard for affirmative defenses is a “low bar that does not require great detail,” but it does require a defendant to provide “some factual basis” for the defenses. Generally, “simply referring to doctrine or statute is insufficient to afford fair notice.”

Uh oh.  We have seen the answer/affirmative defense sausage being made many times, and it is seldom pretty.  As with interrogatory responses, the task of drafting answers and affirmative defenses is often assigned to the most junior lawyers.  For both tasks, lamentably, the usual modus operandi is to toss in everything, including the kitchen sink.  Why is that?  As Kierkegaard put it, “Fear and Trembling.”  Surplusage might be bad, but waiver is worse.  Insecurity and inelegance and inexperience usually result in long lists of affirmative defenses, some of which have only remote or tangential or wishful connection to the case. Common sense might not be quite dead when it comes to listing affirmative defenses, but it is at least incarcerated. 

Good thing for the defendant in Chock that its litany of affirmative defenses was not overly promiscuous. Good thing, too, that the Chock court spared the defendant from needing to satisfy TwIqbal pleading standards. Nevertheless, the court still insisted on something more than mere incantations of affirmative defenses. 

To wit:

• An assertion of the statute of limitations as an affirmative defense requires identification of the particular statute being invoked.  The defendant in Chock did not refer to a particular statute of limitations, so the affirmative defense was stricken.   But the defendant was afforded the right to try again. 

• Failure to state a claim is not an affirmative defense at all and was stricken.  There would be no right to take a stab at that one again. That is newsworthy.  We’re not sure we have ever seen an answer that did not list failure to state a claim as an affirmative defense.  Live and learn. 

• Several other affirmative defenses in the Chock answer were “well-established” and, therefore, “do not require additional factual detail” beyond their identification.  “[A]t the pleading stage, it is difficult to conceive what additional facts could be offered.”  These affirmative defenses included comparative fault, mitigation of damages, release, and estoppel. Count us (and fellow defense hacks) relieved.  Feel free to tell your junior associates to go forth and endlessly list these affirmative defenses, like Homer’s catalogues in The Iliad. 

• Even so, the court in Chock had a beef with the defendant’s “reservation” of unidentified “other” defenses. That reservation was not a proper affirmative defense and was stricken.  There is no point to it.  The Chock court observed that such a reservation “serves no purpose.”  It is like saying that, just in case we have not listed every conceivable defense under the sun, we want you to know we’ll continue to think of whether there are any more and, if we do, you’ll hear from us. Almost all of us do that, and it is wrong. 

Beyond affirmative defenses, the plaintiff in Chock also sought to have some of the complaint allegations deemed admitted when the defendant’s answer said that the documents referenced in the complaint “speak for themselves.”  The court held that such a formulation was an appropriate “conditional admission” whereby the defendant admitted that the documents existed but reserved the right to dispute the meaning of them as the litigation proceeds.  That response “satisfie[d] the requirements of” Rule 8.

The overarching lesson of Chock is that defendants might be free from the TwIqbal standard in authoring their answers, but they are not free from the requirement of giving some thought to the affirmative defenses.  We do not know if less is more, but more is not necessarily better.