Civil procedure is the path to the existence of most 1L law students. Personally, I was much more interested in reading about the trains in torture than in learning the rules of the civil process. At the time, I could not imagine writing a blog about the affirmative standards of affirmative defense, nor could I imagine how interested I would be in such a subject of procedure. My civil law professor lovingly referred to the United States Supreme Court decision in Twombly and Iqbal as the Twiqbal standard. As a tribute to Dean Charles Campbell, who called me on the first day, I will continue to refer to Twombly and Iqbal as Twiqbal.
In 2007 and 2009, the Supreme Court of the United States raised the requirements for complaints. 1
In 2019, Professor Brain Soucek of the Davis School at the University of California Davis School of Law and Remington Lamons examined the 925 times the courts tried the issue. 2 At the time of writing, 62% of the courts refused to apply the increased statement standards to affirmative defense. 3
The trend is to refuse to apply the raised standards for Twiqbal, but this is not true across the country. Soucek and Lamons point to the Northern District of California which applies the raised standard 92% of the time and to the Northern District of Illinois where the raised standard is applied 91% of the time. 4
This leads me to the unfortunate discovery I had when I tried to set applicable standards in the southern Texas district. Decisions from the fifth circle tend to be questioned. Recently, the trend is not to apply the raised standard. 5 However, these cases cite Woodfield v. Bowman 6 a 1999 Fifth Circuit case that precedes the Twiqbal standard. In this case, it is stated that a confirmatory defense must only give the plaintiff fair notice. However, the Fifth Circuit further stated "[a] n affirmative defense is subject to the same claim requirements as the complaint." 7 This would suggest that affirmative action is subject to the same credible claim requirements. listed in Twiqbal.
In first-party property insurance, almost all responses submitted in response to a complaint will include affirmative action. When you go on strike, it is important to know what standards your court will apply. As an example, an affirmative defense may read "The plaintiff's damages are due to the plaintiff's own negligence." This may be sufficient to pass the pattern under a jurisdiction that applies the fair message standard, but it will not be sufficient according to the Twiqbal standard.
Unfortunately, federal courts across the country continue to apply different standards for affirmative action. The omission of either limiting the likelihood of the complaint or extending it to the affirmative defense has made the respondents clear as clay. As the only thing, the only advice I can give is to make sure that you look closely at the district court you are submitting and perhaps also the judge – if they have decided on the matter – and try to follow the precedent.
1 Bell Atlantic Corp. v Twombly 550 US 544 (2007) and Ashcroft v. Iqbal 556 US 662 (2009).
2  See Brian Soucek & Remington B. Lamons, Improved Statement Standards for Defendants: A Case Study of Court Accountant 70 ALA. L. REV. 875, 891 (2019).
4 Id. at 893.
5 See LSREF2 Baron, L.L.C. v. Tauch 751 F.3d 394 (5th Cir. 2014); Garrison Realty, L.P. mot Fouse Architecture & Interiors, P.C. 546 Fed. App’x 458 (5th Circle 2013); McNeely v Trans Union LLC No. CV H-18-849, 2019 WL 338127, at * 1 (SD Tex. 28 January 2019).
6 Woodfield v. Bowman 193 F.3d 354 (5 Cir.1999).
7 Id. at 362.