H. Scott Johnson, Jr., one of the authors of the Virginia Business Law Update, wrote last week about a recent Virginia federal court decision which held that Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), does not apply to a defendant’s affirmative defenses. Iqbal, you will recall, is the United States Supreme Court’s decision that "requires that allegations in a claim for relief include enough factual matter, taken as true, to plausibly suggest an entitlement to relief." For some background, I refer you to this post on Iqbal‘s holding and this one on the Fourth Circuit’s application of Iqbal.

In denying the plaintiff’s motion to strike the defendant’s affirmative defenses in Lopez v. Asmar’s Mediterranean Food, Inc., 2011 WL 98573 (E.D.Va. 2011), Senior Judge James C. Cacheris of the Eastern District of Virginia found that because Rule 8 of the Federal Rules of Civil Procedure requires only that a defendant "state in short and plain terms its defenses to each claim asserted against it[,]" such a requirement does not invoke the Iqbal standard applicable to complaints.

Judge Cacheris acknowledged that every other district court in the Fourth Circuit that has ruled thus far has held that Iqbal‘s requirements apply equally to a plaintiff’s complaint and a defendant’s defenses, although he also pointed out that no appeals court has yet ruled on the question.

Footnote 3 of Judge Cacheris’ opinion, which identifies the Fourth Circuit district courts that have held that Iqbal applies to defendants as well as plaintiffs, does not include any West Virginia courts.