We will spend a final few minutes on Twiqbal, beginning where we left off--if Twombly and Iqbal set the pleading standing in light of the unique contexts of those complex cases, how might that affect how lower courts apply the standard in other cases? Read Johnson v. City of Shelby, as an example of the Court's approach to Twiqbal since those two cases were decided.
We then turn to Answers, Affirmative Defenses, and Additional Claims, focusing on the second responsive option., We fill focus on the first two
elements of an Answer--failure-of-proof defenses and affirmative
defenses. Prepare FRCP 8(b) and (c), FRCP 12(b), (c), and (f), along
with King Vision and Zielinski. Review the first portion of the Kinsman Answer and see the different responses the defense uses. What is the strategy in King Vision when the response is improper? Why was the the defendant's response to ¶ 5 improper in Zielinski?
court defined an affirmative defense as "allegations or statements of
new matter, in opposition to a former pleading which, admitting facts in
such former pleading, shows cause why they should not have their
ordinary legal effect. Under that standard, evaluate the affirmative
defenses in Kinsman. What is necessary to plead an affirmative
defense and why? Through what procedures can a defendant raise and get a
court to act on an affirmative defense?