No. It Does Not (Speak for Itself, That Is)

June 2021 Volume 26, Number 6

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THE LEGAL No. It Does Not (Speak for Itself, That Is).

GBJ | The Legal

No. It Does Not (Speak for Itself, That Is).

Judges have complained about the response “the document speaks for itself” for decades. Nonetheless it persists, along with its cousins, “calls for a legal conclusion” and “strict proof demanded.” This article discusses the use of these phrases, why they should be avoided, and suggests options if your adversary employs them. BY ERIKA BIRG, LUCAS WESTBY AND ALEX PISCIARINO

“[N]onsensical ... ”1 of course, do not require a response: an- “[A]n amorphous nothing ...”2 swers to amended complaints,8 answers to “[P]seudo-response[] ...”3 cross-claims,9 answers to counterclaims10 “[A] faux-answer.”4 and replies to answers.11 Georgia appellate courts also do not require an answer to These are just some of the pejoratives specific types of allegations within plead- deployed by Judge William O’Kelley, then ings, particularly (i) amounts of damages senior district court judge serving the U.S. (which are mentioned in the rule) and District Court for the Northern District of (ii) prayers for relief.12 Georgia, to condemn the use of the phrase The Federal Rules of Civil Procedure “the document speaks for itself.”5 (“FRCP” or “Federal Rules”) differ slightly. Judges have complained about the re- FRCP 8(b)(6) says, “[a]n allegation—other sponse “the document speaks for itself” than one relating to the amount of dam- for decades.6 Nonetheless it persists, along ages—is admitted if a responsive pleading with its cousins, “calls for a legal conclu- is required and the allegation is not denied. sion” and “strict proof demanded.” This If a responsive pleading is not required, article discusses the use of these phrases, then an allegation is considered denied or why they should be avoided, and suggests avoided.”13 The Federal Rules do require an- options if your adversary employs them. swers to specific allegations in cross-claims, counterclaims and amended complaints.14 The Rules Under O.G.C.A. § 9-11-8(d), if you fail The Document Speaks for Itself to deny an allegation that requires an The origin of “the document speaks for answer, the allegation is admitted.7 So itself” is not entirely clear, but it may what qualifies as an allegation requir- derive from the best-evidence rule, ing an answer, and when is a responsive embodied in Federal Rules of Evidence pleading not required? Certain pleadings,

GETTYIMAGES.COM/IPGGUTENBERGUKLTD 1001 through 1008, and Georgia’s ana-

2021 JUNE 17 log, O.C.G.A. § 24-10-1003. The best- of an averment, he shall so state, and evidence rule requires parties to use this has the effect of a denial.20 original documents to prove the content of any writing, recording or photograph There are no other options. rather than characterizations of those As a result, neither the Georgia nor documents.15 Nothing, however, prohib- the Federal Rules allow for “the docu- its a lawyer from asking a witness to read ment speaks for itself.” This makes us- from or paraphrase from a document ing the phrase risky and chances an or- already admitted into evidence.16 And der requiring an amended or repleaded importantly, nothing prohibits charac- answer.21 The response is also evasive terizing documents in complaints, and and wasteful as it potentially delays the nothing prohibits asking an opposing trial process with unnecessary argument party to admit those characterizations.17 over the sufficiency of pleadings and the Lawyers often plead the phrase “the time needed for repleading. Recogniz- document speaks for itself” when coun- ing this, one court ordered an attorney tering an allegation containing a direct who repeatedly answered “the document quote from a document paired with an speaks for itself” not to charge the cli- interpretation of that document.18 Re- ent for the fees incurred opposing the sponding “the document speaks for itself” adverse party’s motion to strike or filing intends to acknowledge the document an amended answer.22 without admitting the adverse party’s Worse yet for counsel and client, interpretation. But it is not an approved though, is the risk that the trial court response to an allegation in a complaint. grants a motion to strike or considers Instead, the Georgia Civil Practice Act the adverse party’s allegations admitted.23 and the Federal Rules permit only three Courts in other jurisdictions have done responses: admit, deny, or state that the so.24 One Connecticut court, when con- party lacks knowledge or information fronted with this language, sought author- sufficient to form a belief about the truth ity for the phrase “speaks for itself,” and of an allegation.19 O.C.G.A. § 9-11-8(b) found legitimate use of the phrase when specifically provides that: discussing the tort concept of res ipsa lo- quitur, or when interpreting an arguably [a] party shall state in short and plain ambiguous statute.25 Finding no precedent terms his defenses to each claim asserted for employing the phrase to respond to a and shall admit or deny the averments pleaded allegation, the court deemed each upon which the adverse party relies. If allegation to which the phrase responded he is without knowledge or information admitted.26 Similarly, a federal court in sufficient to form a belief as to the truth Virginia deemed admitted characterizations of 34 emails to which defendants responded that they speak for themselves.27 To be safe, if you feel you absolutely must employ “the document speaks for itself,” add a clear denial of the allegation.28 ... neither the Georgia nor the Federal Rules Better yet, though, avoid it. If you find yourself disadvantaged by an opposing allow for “the document speaks for itself.” party who uses it in place of a clear admis- This makes using the phrase risky and sion or denial, consider moving to strike the language under FRCP 12(f) as “redun- chances an order requiring an amended or dant, immaterial, [or] impertinent.”29 repleaded answer.

Calls for Legal Conclusions Evasive responses are not limited to “the document speaks for itself.” Saying that an allegation in a pleading or discovery request “states” or “calls for a legal conclu-

18 GEORGIA BAR JOURNAL sion” often will fall into the same bucket of impermissible responses. It is not entirely clear how responding to an allegation with “calls for a legal conclusion” emerged.30 One theory suggests these responses transpose habits from Like with “the document speaks for other circumstances in which a clear ad- itself,” courts may deem “states a legal mission or denial is not required, such as in a motion for judgment on the pleadings.31 conclusion” responses to be admissions, For those motions, “it is sufficient to refer order repleading, or (where paired with a to the rule that a motion for judgment on the pleadings admits facts but does not ad- sufficiently clear denial) simply strike the mit conclusions of law.”32 Another theory offending language. is that refusing to admit or deny legal conclusions became common because courts often tolerate failure to deny legal conclusions if the answer otherwise responds directly to factual allegations.33 “Failure to outright deny allegations of “States a legal conclusion” also may jurisdiction, for example, could be critical spring from the rule that plaintiffs must if the defendant wants to challenge that do more than state legal conclusions in a issue, since failure to include that defense federal court complaint.34 Plaintiffs have in the answer constitutes a waiver.”43 long had to plead sufficient facts to give References to legal conclusions are the defendant fair notice of the nature of also sometimes put forward in response the claim,35 and the heightened pleading to requests for admission. There, requests standards established in the Supreme Court’s to admit to “pure conclusions of law un- Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal related to facts are objectionable” under decisions required pleading facts that plau- FRCP 36.44 A party may however prop- sibly show plaintiff is entitled to relief.36 erly request that any other party admit Yet the Georgia and Federal Rules say “the application of law to fact.”45 Thus, nothing about disregarding legal conclu- counsel should scrutinize the requests for sions when responding to a complaint, admission, answering only those requests and courts may require a response. “Le- in compliance with FRCP 36.46 gal conclusions are a perfectly proper Here again we see a circumstance in part of a plaintiff’s allegations” and “must which the most prudent response is to be answered to comply with Rule 8(b).”37 admit, deny or “state in detail why the “[A]ll allegations must be responded to,” answering party cannot truthfully admit including those that state legal conclu- or deny” the allegation.47 sions.38 Courts have enforced this re- quirement, including courts within the U.S. Court of Appeals for the Eleventh Strict Proof Demanded Circuit. Thus, know that in federal court, Like the above, the phrase that a de- a response that refuses to answer an al- fendant “demand[s] strict proof” has legation because it “states a legal conclu- “no place in a properly plead answer.”48 sion” is “impermissible under the plain The phrase “strict proof” is meaning- language of Rule 8(b).”39 less (“whatever that is,” as one judge Like with “the document speaks for wryly wrote49). And demands for strict itself,” courts may deem “states a legal proof fail for the same reasons that “the conclusion” responses to be admissions,40 document speaks for itself” does. Such order repleading,41 or (where paired with a demand is, as one federal court put a sufficiently clear denial) simply strike it, a “depart[ure] from Rule 8(b)’s plain the offending language.42 An unlucky roadmap” and is “unknown to the federal result here could lead to catastrophic re- practice or to any other system of mod- sults, particularly in jurisdictional battles, ern pleading.”50 Here again, courts may where the response appears most often. order repleading or grant motions to

2021 JUNE 19 strike the non-responsive language and standards of the Supreme Court’s rulings motions to strike defenses, tagging the deem the responses to be admissions.51 in Twombly and Iqbal (requiring that the relief a “drastic remedy.”73 Thus, courts Even pairing an unequivocal denial may plaintiff plead facts that plausibly show often will treat mislabeled “affirmative not save an answer if it comes with a de- the plaintiff is entitled to relief) apply defenses” as specific denials of particular mand for strict proof. One federal court to affirmative defenses.60 As a result, in aspects of a complaint or other filing.74 found a demand for strict proof coupled Georgia federal courts, the pleading stan- Georgia state courts—with Georgia’s with a denial to be “oxymoronic,” where dard for affirmative defenses is typically more lenient notice pleading standard— it was used to assert that the defendant less stringent than the standard applied to are more forgiving.75 The notice pleading “lack[s] even enough information to form a pleading a claim for relief.61 But like their standard requires that defendants plead belief as to the truth of an allegation (as Rule rival football teams, Georgia and Florida affirmative defenses to “prevent surprise 8(b)(5) requires), then proceed[s] to deny are divided on this question, with sev- and to give the opposing party fair notice it.”52 The offensive language was struck, but eral Florida federal district courts using of what he must meet as a defense.”76 So the litigant was granted leave to amend.53 the Twombly/Iqbal framework to review long as the affirmative defense meets this The Supreme Court of Georgia has held affirmative defenses.62 threshold, Georgia courts typically will firm against demands for “strict proof” in Even without applying a heightened not strike them and instead allow an “im- answers as far back as 1855. That year, in pleading standard, however, affirmative plied amendment” of pleadings to add af- Miller v. Saunders, one defendant neither defenses must “respond directly to a par- firmative defenses that the adverse party admitted nor denied the accuracy of a mar- ticular cause of action” and “provide an had notice of through other means.77 This riage contract but asked that the plaintiff adequate factual basis” sufficient to give implied amendment can occur any time “may be held to strict proof.”54 In no uncer- the court fair notice of the substance of before the pretrial order.78 tain terms, the court held this answer was the defense.63 One cannot plead a “laundry O.C.G.A. § 9-11-8(f) also contains “improper,” “insufficient” and “evasive,” list” of every possible affirmative defense language providing that “[a]ll pleadings and directed that the defendant “should regardless of the facts of the case.64 Affir- shall be so construed as to do substantial answer as interrogated, according to his mative defenses that are mere “bare bones justice.”79 This catch-all provision encour- knowledge, information, and belief.”55 To- conclusory allegations” are vulnerable to a ages Georgia judges to exercise leniency day, calls for strict proof are rare in Geor- motion to strike.65 on pleadings, even those they acknowl- gia pleadings. In one 1992 debt-collection Additionally, an affirmative defense edge are “not a model of clarity.”80 Again lawsuit, however, one corporate debtor must be “affirmative,” meaning it is however, the best practice is to plead af- answered a request for admission by as- “something that, if proven, will reduce or firmative defenses clearly. serting that it was “unable to either admit eliminate a plaintiff’s recovery even if the or deny [that it owed the alleged sum] but plaintiff established a prima facie case.”66 demands strict proof thereof.”56 The credi- Defenses that merely “negate an element Conclusion tor prevailed on summary judgment soon of the plaintiff’s prima facie case,” do not Pleadings and requests for admission thereafter, and the debtor appealed.57 The qualify as such,67 and are sometimes called serve important roles. They inform the Court of Appeals of Georgia concluded “negative defenses.”68 court about which matters are contest- that the debtor’s appeal, where the alle- Since the passage of a 1948 rule amended. Although giving unclear responses gation regarding the debt was not denied ment, FRCP 12(f) motions to strike are like “the document speaks for itself,” or properly, “was so palpably without merit as the primary mechanism for challenging “states a legal conclusion,” or “strict proof to admit of no other conclusion than that it insufficient defenses.69 Affirmative de- demanded” may seem convenient, these was filed for purposes of delay.”58 The ap- fenses that merely argue the facts are more responses deny the parties and the court pellate court ordered sanctions against the vulnerable, such as those claiming that the clarity. Moreover, these responses risk appellant-debtor under O.C.G.A. § 5-6-6.59 defendant did not know of any fraudulent unnecessary motion practice, and their activity, and that the plaintiff pleaded avoidance promotes judicial economy, a “shotgun complaint.”70 Federal courts saving both the court and clients time Unclear Affirmative Defenses have shown a willingness to strike such and expense. Thus, when responding Issues of insufficient pleadings go beyond so-called defenses.71 And motions to strike to pleadings, usually the right answer is these phrases. Challenges to answers can may be paired with a motion for a more to answer. z arise as much from what they do not say definite statement under FRCP 12(e). If as what they say. Answers often contain a responsive pleading is required, and an affirmative defenses that contain too lit- improperly pled affirmative defense is too Erika Birg is a partner in the tle information to be comprehensible to vague or ambiguous for a response, then a Atlanta and Jacksonville the court or are not affirmative defenses motion for a more definite statement can offices of Nelson Mullins, at all. require the opposing party to clarify.72 leading teams in business- to-business litigation and The Eleventh Circuit has not yet ruled But challenging affirmative defenses arbitration matters. on whether the heightened pleading may not be worth the fight. Courts dislike

20 GEORGIA BAR JOURNAL Lucas Westby is a partner allegations — “other than those as to the 20. O.C.G.A. § 9-11-8(b) (2019) (emphasis in the Atlanta office of amount of damage”— are admitted if not added). Nelson Mullins, where he specifically denied). 21. See, e.g., Stovall, 2014 WL 8251465, at assists clients in 8. Early v. MiMedx Group, Inc., 330 Ga. *12; Essex Ins. Co. v. Barrett Moving commercial, intellectual App. 652, 655, 768 S.E.2d 823, 826 & Storage, No. 3:12-cv-219-J-99TJC- property and tort matters. (2015); Nat’l City Mortg., Inc. v. Point JRK, 2013 U.S. Dist. LEXIS 204661, at Center Fin., Inc., 306 Ga. App. 655, 656, *4 (M.D. Fla. June 3, 2013); Agrelo v. Alex Pisciarino is a third- 703 S.E.2d 113, 114 (2010). Meloni Law Firm, No. 14-21192-CIV- year student at the 9. O.C.G.A. § 9-11-12(a) (2019). MARTINEZ-GOODMAN, 2017 U.S. University of Virginia School 10. Id.; Yukon Partners, Inc. v. Lodge Dist. LEXIS 224524, at *3 (S.D. Fla. Sep. of Law and part-time law Keeper Group, Inc., 258 Ga. App. 1, 3 22, 2017) (striking certain answers); but clerk for the Albemarle n.1, 572 S.E.2d 647, 649 n.1 (2002). see Clarendon Am. Ins. Co. v. All Bros. County (Va.) Circuit Court; he will join 11. Hughes v. The Cornerstone Inspection Painting, Inc., No. 6:13-CV-934-ORL-22, Nelson Mullins in fall 2021. Group, Inc., 336 Ga. App. 283, 285, 784 2013 WL 5921538, at *4 (M.D. Fla. Nov. S.E.2d 116, 118 (2016); Consolidated 4, 2013) (denying motion to strike). Pipe & Supply Co., Inc. v. Genoa Constr. 22. McCauley v. McCauley (In re Servs., Inc., 279 Ga. App. 894, 896, 633 McCauley), Nos. 14-12093-tl7, (14- Endnotes S.E.2d 59, 61 (2006). 01134-t), 2015 Bankr. LEXIS 744, at *12 1. F.D.I.C. v. Stovall, No. 2:14-CV-00029- 12. Drug Emporium, Inc. v. Peaks, 227 (Bankr. D.N.M. Mar. 10, 2015). WCO, 2014 WL 8251465, at *11 (N.D. Ga. App. 121, 128, 488 S.E.2d 500, 506 23. See Fed. R. Civ. P. 36; O.C.G.A. § 9-11-36. Ga. Oct. 2, 2014). (1997). Many practitioners still believe 24. Skanksa USA Bldg., Inc. v. Universal 2. Id. at *12. that—out of an abundance of caution— Concrete Products Corp., No. 3. Id. amounts of damages and prayers for 201620521, 2017 WL 8683759, at *7–8 4. Id. relief still warrant a denial (i.e., a denial (Pa. Ct. Com. Pl. May 19, 2017) Stevens 5. Id. that the relief requested by the plaintiff & Lee, P.C. v. Cresswell, No. 1832 6. See, e.g., Jones v. Univ. of Memphis, is warranted). The authors agree this MDA 2015, 2016 WL 6441304, at *2 No. 215CV02148JPMCGC, 2016 WL may be better practice, but responses are (Pa. Super. Ct. Nov. 1, 2016); Cotter v. 6123510, at *2 (W.D. Tenn. Sept. 23, not technically required. Skylands Cmty. Bank (In re Cotter), No. 2016) (calling the “speaks for itself” 13. Fed. R. Civ. P. 8; see also Josh Sundloff, 11-1619, 2011 Bankr. LEXIS 4579, at response “not acceptable”) (quoting The Document Speaks for Itself: ‘A *24-25 (Bankr. D.N.J. Oct. 24, 2011); N. Farinash v. Silvey, No. 06-11860, Pox Upon These Words’, Utah B.J., Water, LLC v. N. Water St. Tarragon, 2007 Bankr. LEXIS 3474, at *28 September/October 2016, at 30, 31, LLC, No. FSTCV075004758S, 2009 (Bankr. E.D. Tenn. 2007)); Stovall, https://www.utahbar.org/wp-content/ Conn. Super. LEXIS 2696, at *18- 2014 WL 8251465, at *11 (“Stating uploads/2017/11/2016_edition_05_ 20 (Super. Ct. Oct. 13, 2009); see that a document ‘speaks for itself’ is sep_oct.pdf. also Carnahan v. Alpha Epsilon Pi nonsensical and completely contrary to 14. See Id.; 61A AM. JUR. 2d Pleading § 355 Fraternity, Inc., No. 2:17-CV-00086- the Federal Rules of Civil Procedure.”); Westlaw (database updated October RSL, 2018 WL 5825310, at *3 (W.D. Smith v. N. Star Charter Sch., Inc., No. 2020) (“A response to a cross claim, like Wash. Nov. 7, 2018) (deeming RFA CIV. 1:10-618 WBS, 2011 WL 3205280, an answer to a counterclaim, is usually admitted when answered “the document at *5 (D. Idaho July 26, 2011) (reasoning required under trial rules, and the effect speaks for itself”). that a pleaded answer asserting that of failure to answer and deny is that 25. N. Water, 2009 Conn. Super. LEXIS a “response that a document ‘speaks the averments of the pleading will be 2696 at *19 (citing Passini v. Decker, 467 for itself’ ... standing alone, would be deemed admitted.”). A.2d 442, 443 (1983), wherein a court insufficient under Rule 8 ...” but finding 15. United States v. Howard, 953 F.2d 610, reasoned that unambiguous statutes the standard not met); House v. Giant 612 n.1 (11th Cir. 1992). speak for themselves and do not require of Maryland LLC, 232 F.R.D. 257, 262 16. Miller v. Holzmann, 240 F.R.D. 1, 4 judicial construction). (E.D. Va. 2005) (“A favorite excuse for (D.D.C. 2006). 26. Id. not answering requests for admission 17. Id.; see, e.g., Sec. & Exch. Comm’n v. 27. United States For the use & benefit of in a contract case is that ‘the document Watkins, 317 F. Supp. 3d 1244, 1251 n.2 VT Milcom, Inc. v. PAT USA, Inc., No. speaks for itself.’”); Verlan Fire Ins. Co. (N.D. Ga. 2018) (rejecting defendant’s 5:16-CV-00007, 2017 WL 3017041, v. Rust-Oleum Corp., No. 95 C 257, objections to statements made about a at *2-3 (W.D. Va. July 14, 2017) 1995 WL 107098, at *1 (N.D. Ill. Mar. document on the grounds that an actual (addressing use of phrase to respond to 8, 1995) (calling the assertion that a document in evidence was the “best RFAs). document “speaks for itself” a “familiar evidence” and “speaks for itself”). 28. Gomez v. United States, No. 09-22148- (but really meaningless) locution”). 18. Erika Birg, Documents Don’t Talk, 17 CIV, 2010 WL 3834211, at *2 (S.D. Fla. 7. O.C.G.A. § 9-11-8(d) (2019); Universal Pretrial Practice & Discovery 4 (Fall 2008). Sept. 28, 2010). Underwriters Ins. Co. v. Albert, 248 19. See, e.g., Gomez v. United States, No. 29. Fed. R. Civ. P. 12(f); § 9-11-12(f). Ga. App. 415, 416, 546 S.E.2d 361, 362 09-22148-Civ, 2010 U.S. Dist. LEXIS 30. In Georgia, it goes back at least as far as (2001) (noting that “[a] consequence of 108187, at *3, 106 A.F.T.R.2d (RIA) the court’s opinion Patten v. Miller, 190 these pleading rules” is that complaint 2010-6445 (S.D. Fla. Sep. 28, 2010). Ga. 123, 128, 8 S.E.2d 757, 763 (1940),

2021 JUNE 21 which quotes an answer asserting that 41. Gulf Restoration Network v. United Circuit regarding whether to apply a pleaded paragraph “states a legal States Envtl. Prot. Agency, No. CV heightened pleading standards to conclusion ... and requires no answer.” 18-1632, 2018 WL 5297743, at *5 (E.D. affirmative defenses). 31. See, e.g., Kohen v. H. S. Crocker Co., 260 La. Oct. 25, 2018). 61. Teagan v. City of McDonough, No. F.2d 790, 792 (5th Cir. 1958). 42. Gomez v. United States, 2010 WL 1:15-CV-00607-ELR, 2016 WL 32. Id. 3834211, at *2. 11670121, at *1 (N.D. Ga. Sept. 7, 2016) 33. See, e.g., King v. Tilley, 69 Ga. App. 561, 43. Scott Moïse, Answers Revisited, Part 2, S.C. (citing Stovall, 2014 WL 8251465, at *1.). 563, 26 S.E.2d 293, 295 (1943). Law., September 2017, at 55 (citing Fed. 62. Gomez, 411 F. Supp. 3d at 1336–37 34. See, e.g., Bivins v. Nationstar Mortg., R. Civ. P. 12(h); S.C.R. Civ. P. 12(h)). (providing an extensive list of district LLC, No. 1:16-CV-302-WSD, 2016 WL 44. G.H. Bass & Co. v. Fulton Cty. Bd. of Tax courts within the Eleventh Circuit on 3855549, at *4 (N.D. Ga. July 14, 2016). Assessors, 268 Ga. 327, 328, 486 S.E.2d each side of the issue). The majority 35. Bell Atl. Corp. v. Twombly, 550 U.S. 810, 811 (1997) (quoting Ransom v. view within the Eleventh Circuit 544, 545 (2007). United States, 8 Cl. Ct. 646, 648 (1985)). appears to be that Twombly and Iqbal 36. Ashcroft v. Iqbal, 556 U.S. 662, 679 45. Fed. R. Civ. P. 36(a)(1)(A). do not apply to affirmative defenses. (2009) (requiring that pleadings contain 46. Compare Brown v. Morton, 274 Ga. App. But be prepared, because at least seven sufficient facts that, when accepted as 208, 211, 617 S.E.2d 198, 202 (2005) sitting district court judges in Florida true, state a facially plausibly claim to (upholding a request for admission take the minority view. See Muschong relief); Bell Atl. Corp. v. Twombly, 550 seeking an admission that certain facts v. Millennium Physician Grp., LLC, U.S. at 545 (2007) (requiring pleadings amounted to conspiracy), with In re No. 2:13-CV-705-FTM-38CM, 2014 contain “enough facts to state a claim Sportsman’s Link, Inc., No. 07-10454, WL 1268574, at *2 (M.D. Fla. Mar. 27, to relief that is plausible on its face” in 2011 WL 7268049, at *4 (Bankr. S.D. 2014) (J. Sheri P. Chappell: “As with order to survive a 12(b)(6) motion). Ga. Sept. 29, 2011) (rejecting a request any pleading, an affirmative defense 37. Saldana v. Riddle, No. 98 C 2277, 1998 for admission asking whether or not a must give the plaintiff ‘fair notice’ of the WL 373413, at *1 (N.D. Ill. June 29, party agrees that a certain debtor “was nature of the defense and the grounds 1998). not insolvent”). upon which it rests, and state a plausible 38. State Farm Mut. Auto. Ins. Co. v. Riley, 47. See Moïse, at 52, 55 (“[T]he safer path defense.”); Barrios v. Ferrellgas, L.P., 199 F.R.D. 276, 278 (N.D. Ill. 2001). to follow would be to outright admit No. 2:09-CV-00310-36SPC, 2010 WL 39. F.D.I.C. v. Stovall, No. 2:14-CV-00029- or deny the legal conclusions.”); see also 11622703, at *1 (M.D. Fla. Mar. 30, WCO, 2014 WL 8251465, at *11 (N.D. FRCP 36(a)(4) (dictating permissible 2010) (J. Charlene Y. Honeywell: “An Ga. Oct. 2, 2014); Gomez v. United responses to requests for admission). affirmative defense will not be stricken States, No. 09-22148-CIV, 2010 WL 48. Wells Fargo Bank v. Maten, No. so long as it contains ‘a short and 3834211, at *1 (S.D. Fla. Sept. 28, 2010). 10CH46559, 2011 WL 3269286 (Ill. Cir. plain statement of the claim showing Courts elsewhere have been less strict Ct. July 21, 2011). the pleader is entitled to relief ... the in enforcing this rule. United States v. 49. Whalen v. Harbour Contractors, Inc., pleader must plead enough facts to state 45.43 Acres of Land Situate in Ada Cty., No. 99 C 8018, 2000 WL 656667, at *1 a plausible basis for the claim.’”); Grey Idaho, No. CV 08-463-S-CWD, 2009 (N.D. Ill. Mar. 23, 2000). Oaks Country Club, Inc. v. Zurich Am. WL 1605127, at *6 (D. Idaho June 4, 50. King Vision Pay Per View, Ltd. v. J.C. Ins. Co., No. 218CV639FTM99UAM, 2009) (reasoning that a response that Dimitri’s Rest., Inc., 180 F.R.D. 332, 333 2019 WL 1359604, at *3 (M.D. Fla. Mar. a pleading “requires a legal conclusion” (N.D. Ill. 1998). 26, 2019) (M.D. Fla. June 22, 2015) (J. is “not appropriate for dismissal under 51. Compare Donnelly v. Frank Shirey John E. Steele: “As with any pleading, Rule 12(f).”); Beker Indus. Corp. v. Cadillac, Inc., No. 05 C 3520, 2005 WL an affirmative defense must provide United States, 585 F. Supp. 663, 667 2445902, at *2 (N.D. Ill. Sept. 29, 2005), ‘fair notice’ of the nature of the defense (Ct. Int’l Trade 1984) (comparing a with King Vision, 180 F.R.D. at 334. and the grounds upon which it rests, defendant’s responses in an Answer 52. Sharifi v. Stellar Recovery, Inc., No. 15 C and state a plausible defense.”); Jenkins to responses to legal conclusions, for 10587, 2016 WL 246134, at *1 (N.D. Ill. v. Grant Thornton LLP, No. 13-60957- which the court said “defendants are not Jan. 20, 2016) (emphasis in original); see CIV, 2014 WL 12634797, at *1 (S.D. Fla. required to respond in like manner”). also Moïse, at 52, 54. July 22, 2014) (J. Cecilia M. Altonaga: In one Idaho condemnation case, the 53. Id. “To facilitate the parties’ discussion, court refused to strike a defendant’s 54. Miller v. Saunders, 17 Ga. 92, 92-93 Defendants are advised the undersigned answer to a portion of a complaint that (1855). requires affirmative defenses to meet plead that application of a particular 55. Id. the pleading standard set out in Twombly statute in a condemnation case. 45.43 56. T.L. Rogers Oil Co. v. Sommers Co., and Iqbal.”); Grovenor House, L.L.C. v. Acres of Land, 2009 WL 1605127, at *6 203 Ga. App. 404, 404, 417 S.E.2d 44, 44 E.I. Du Pont De Nemours And Co., No. (D. Idaho June 4, 2009). The defendant (1992). 09-21698-CIV, 2010 WL 3212066, at asserted that the portion of the 57. Id. at 45. *1 (S.D. Fla. Aug. 12, 2010) (J. Marcia complaint “requires a legal conclusion,” 58. Id. (internal quotation omitted). G. Cooke: “‘Affirmative defenses and the court agreed, calling it a 59. Id. are subject to the general pleading “question for judicial review.” Id. at *7. 60. Gomez v. Bird Auto., LLC, 411 F. requirements of Federal Rule of Civil 40. Gomez v. United States, 2010 WL Supp. 3d 1332, 1336 (S.D. Fla. 2019) Procedure 8(a), which generally requires 3834211, at *2. (discussing the split within the Eleventh only a short and plain statement of the

22 GEORGIA BAR JOURNAL defense.’”); Progressive Express Ins. affirmative defense, although an attack 77. See, e.g., Hathaway v. Bishop, 214 Ga. Co. v. Star Painting & Waterproofing, was permitted “in one way or another.” App. 870, 872, 449 S.E.2d 318, 320 Inc., 333 F.R.D. 600, 601 (S.D. Fla. 5C ARTHUR R. MILLER, MARY KAY KANE, (1994); Bowers v. Howell, 203 Ga. App. 2019) (J. William P. Dimitrouleas: “… AND A. BENJAMIN SPENCER, FED. PRAC. & 636, 637, 417 S.E.2d 392, 394 (1992). [A]ffirmative defenses are subject to PROC. § 1381 (3d. ed. Oct. 2020 update). 78. In some cases, courts have even found the same pleading scrutiny imposed by 70. Perlman v. Wells Fargo Bank, N.A., No. that implied amendment of pleadings Rule 8(a) and Twombly/Iqbal.”); Castillo 10-81612-CV, 2014 WL 4449602, at *3 was allowed or should have been v. Roche Labs. Inc., No. 10-20876-CIV, (S.D. Fla. Sept. 10, 2014). allowed during trial. See, e.g., Hathaway, 2010 WL 3027726, at *2 (S.D. Fla. 71. See, e.g., Id.; Tomason, 297 F.R.D. at 549 214 Ga. App. at 320 (holding that the Aug. 2, 2010) (J. Patricia A. Seitz: “... (striking a so-called “affirmative defense” jury should have been instructed in the Defendant’s affirmative defenses must that amounted to an allegation that statute of frauds even though it was meet the pleading standard set out in plaintiffs violated Fed. R. Civ. P. 11 by never formally raised as an affirmative Twombly and Iqbal”). advancing meritless claims). defense where opposing counsel had 63. Westgate Fin. Corp. v. Cotswold Indus., 72. 5C MILLER, FED. PRAC. & PROC. § 1377. been given verbal notice that the Inc., No. 1:09-CV-2627-WSD, 2009 WL 73. Gomez, 411 F. Supp. 3d at 1335 (internal defense would be raised a week before 10211922, at *4 (N.D. Ga. Dec. 31, 2009). citation omitted). trial.); Westmoreland v. JW, LLC, 313 64. Id. 74. See, e.g., Stovall, 2014 WL 8251465, at Ga. App. 486, 492, 722 S.E.2d 102, 65. Dillard v. Citimortgage, Inc., No. *5; Tomason v. Stanley, 297 F.R.D. 541, 106 (2012) (holding that a defendant 1:10-CV-3308-AT-SSC, 2011 WL 546 (S.D. Ga. Jan. 30, 2014); Clarendon in a bench trial for unpaid rent had 13217314, at *2 (N.D. Ga. Aug. 31, Am. Ins. Co. v. All Bros. Painting, consented to the implied amendment 2011); Williams v. Gate Gourmet, Inc., Inc., No. 6:13-CV-934-ORL-22, of pleadings to include a claim for No. 1:09-CV-1557-MHS-SSC, 2010 WL 2013 WL 5921538, at *7 (M.D. Fla. additional unpaid rent accrued after 11508722, at *2 (N.D. Ga. July 29, 2010). Nov. 4, 2013); see also Fed. R. Civ. P. the filing of the complaint by failing 66. Stovall, 2014 WL 8251465, at *4. 12(f) (empowering courts to strike to make a contemporaneous objection 67. In re Rawson Food Serv., Inc., 846 F.2d insufficient defenses). to the introduction of evidence of that 1343, 1349 (11th Cir. 1988). 75. See Dehco, Inc. v. Bd. of Regents of the unpaid rent). 68. Gomez v. Bird Auto., LLC, 411 F. Supp. Univ. Sys. of Georgia, 350 Ga. App. 760, 79. O.C.G.A. § 9-11-8(f) (2019). 3d 1332, 1339 (S.D. Fla. 2019). 761, 830 S.E.2d 333, 334 (2019). 80. Maxwell v. Cronan, 241 Ga. App. 491, 69. Prior to 1948, courts were divided on 76. Phillips v. State Farm Mut. Auto. Ins. 492, 527 S.E.2d 1, 2 (1999). the question of what kind of motion was Co., 121 Ga. App. 342, 346, 173 S.E.2d the proper test of the sufficiency of an 723, 726 (1970).

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