b'Spring/Summer 2019Page 11 forbothsidesclaims. 19 Rule8(a)requiresparticularlylargeroleinthedifferences thatplaintiffsprovideashortandplainamong district courts in the Ninth Circuit.statementoftheclaimshowingthatthe pleader is entitled to relief. Rules 8(b) and (c)Trends in the Ninth Circuit instructdefendantstostateinshortandThe data reveals that judges within the Ninth plaintermsitsdefenses,andstateanyCircuitapplytheplaintiff-friendly,height-avoidance or affirmative defense. Defendantsened plausibility standard 43% of the time, a latchontothedifference,notingthatplain- fairlyevenlysplit. 24 Oncloserinspection, tiffs are instructed to show, while defendantshowever, the data is skewed by an outlier. At are not. The fact that the Supreme Court only92%, the Northern District of California had focusedonRule8(a)inTwomblyandIqbalthe highest percentage of cases in the nation bolsters this position. Plaintiffs, on the otherapplying the plausibility standard to affirma-hand,focusonthesimilarities:accordingtotive defenses. If you removed the 75 cases the therules,bothsidesstatementsshouldbedistrictdecided,theNinthCircuitresults short and plain. According to plaintiffs, thewouldfallfrom43%ofcasesapplyingthe Court redefined fair notice as it applies gen- heightenedplausibilitystandardtoaffirma-erally to Rule 8. tive defenses to 23%. The District of Oregon Both sides also claim judicial efficiency 20andwas the second highest district in the Ninth discoveryefficiency 21 aspointsforCircuit, with54%ofcasesapplying their side,arguingthattheirdesired[I]f you are assertingthe plausibility standard to affirma-outcome would reduce burdens on theaffirmative defenses, youtive defenses. In the Central District court. Plaintiffs argue that the height- want to look out theof California, only 32% of cases ap-enedstandardwilldeclutterboiler- courtroom window andpliedthepleadingstandardstoaf-plate defenses, preventing the need tosee cacti, not fog. firmative defenses. The Eastern Dis-litigate them. Defendants counter thattrict matched the Central, while the the heightened standard will result inSouthern District applied the plausi-increasedmotionstostrike(rememberthebilitystandardtoaffirmativedefensesonly spikein12(f)motionsafterTwombly?).Be- 9% of the time. Nevada and Arizona applied causeleavetoamendisroutinelygranted,theplausibilitystandard8%and0%ofthe defendantsargue,thiswillactuallyextendtime, respectively.the litigation. Apparently, the lesson here is that if you are Anothercommonalityfromthecaselawre- assertingaffirmativedefenses,youwantto view:plaintiffsanddefendantsalikestatedlook out the courtroom window and see cacti, that their desired standard was adopted by anot fog. A defendant in the Northern District majority of courts, either within the presidingcan pretty safely expect to be held to the high-districtorcircuit,ornationally.This court- er standard. But the data can be even more counting precedent, is not a real form of prec- specific because judges are not bound by their edent at all. From a common sense perspec- districts majority, or even by their own prior tive, this kind of argument may sound reason- decisions. 25 able: if everyone else is doing it, its more like- ManyofthejudgesintheCentralDistrict ly to be right. But from a legal perspective,have been consistent in their rulings on this the district court is not beholden to the deci- issue. Those that have always refused to ex-sions of any other district court, even if everytend theTwiqbal standard to defendants in-singledistrictcourtacrossthecountryhascludeJudgesKlausner,Lew,andOConnell. decided the same. There is no binding prece-dentacrossdistrictcourts. 22 Courtsac- Otherjudgeshaveconsistentlytreatedthe ceptance or rejection of this argument plays agoose like the gander. Judges Kronstadt, Mor-'