Iqbal Trend Kills Notice Pleading. RIP FRCP 8.

Defense counsel are salivating to cite Supreme Court 5-4 case Iqbal v. Ashcroft to flesh out their motions to dismiss requiring impossible pleading standards. Iqbal is the new Twombly and it’s already getting old. What was wrong with good ol’ FRCP 8?
Maybe Specter can get the Congress to agree with Justice Ginsberg:

Specter Proposes Return to Prior Pleading Standard
David Ingram

Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits, after two recent Supreme Court decisions effectively upended long-standing precedent.

Sen. Arlen Specter, D-Pa., filed legislation Wednesday designed to return the standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly (pdf). That case and another — Ashcroft v. Iqbal (pdf) from the most recent term — have raised the standard that pleaders must meet to avoid having their cases quickly tossed.

Specter, in remarks prepared for the Senate floor, accused the Court’s majorities of making an end run around precedent with the two recent cases.

“The effect of the Court’s actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries,” Specter said. “I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants.”

At issue is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief,” while Rule 12 allows for the dismissal of complaints that are vague or that fail to state a claim. Under Iqbal, a 5-4 decision written by Justice Anthony Kennedy, many courts are now requiring more specific facts that, plaintiffs lawyers say, aren’t often available until discovery.

Specter’s bill (pdf) directs federal courts to interpret the rules as the Supreme Court did in a much earlier decision, Conley v. Gibson (1957). The bill falls within the jurisdiction of the Senate Judiciary Committee and, if considered, would likely be a lightning rod for debate among plaintiffs lawyers, consumer groups and businesses.

This article first appeared on The BLT: The Blog of Legal Times.

also from

Monday, May 18, 2009

Iqbal and the death of notice pleading: Part II

Continuing on my discussion of the death of notice pleading in Ashcroft v. Iqbal:

The Court makes the distinction between conclusory and non-conclusory facts central to pleading analysis, with the former not “counting” in evaluating the sufficiency of the complaint. As Scott Dodson argues here, it is problematic that the Court has reintroduced two tiers of facts (conclusory v. non-conclusory), a remnant of fact pleading (which distinguished between evidentiary and ultimate facts).

But a bigger problem is how anyone can plead defendant’s state of mind anymore without avoiding such conclusory facts. This will be an issue in this case and beyond. In this case, the Supreme Court remanded to the Second Circuit to consider whether to remand to the district court to give the plaintiff a chance to replead. But what more could he say?

The majority rejected as conclusory, bare allegations that are not entitled to be taken as true for purposes of the 12(b)(6) the following allegations: 1) that Ashcroft and Mueller “‘knew of, condoned, and willfully and maliciously agreed to subject [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.’”; 2) that Ashcroft was the “principal architect” of the discriminatory detention policy; and 3) that Mueller was “instrumental” in adopting and executing that policy.

As Justice Souter argued, it is not clear why these are conclusory or bare allegations (at least considered in light of the other allegations in the complaint). Nor is it clear why these were mere conclusions to be ignored while the following paragraphs were sufficient: 1) “‘the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11.’”; and 2) “‘[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were ‘cleared’ by the FBI was approved by Defendants ASHCROFT and MUELLER after September 11, 2001.’” Can anyone find a principled way to determine why these are any less bare than the three paragraphs quoted above?

More problematically, even accepting the majority’s determination that the allegations are indeed bare and conclusory, what else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent? Absent some discovery and the chance to inquire into the defendants’ thinking when acting (here, in establishing the policies at issue), what words can a plaintiff possibly use to describe that the defendant enacted or approved or acquiesced in a policy knowing (or intending) it to be discriminatory?

This seems to leave plaintiffs in an impossible position.

Posted by Howard Wasserman on May 18, 2009 at 06:12 PM in Civil Procedure, Howard Wasserman | Permalink


Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s