By Robert A. Clifford
The American Bar Association midyear meeting in Atlanta had an open forum on two U.S. Supreme Court decisions that have been said to be among the most significant since Chief Justice John Roberts Jr. took the helm.
Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), raised the bar for drafting a complaint that is sufficiently detailed to withstand a motion to dismiss. For more than two hours, bar leaders discussed how these two cases have impacted federal pleading standards in civil litigation and may even be reaching into state courts.
The two cases had the effect of amending the requirements of Fed.R.Civ.P. 8(a) by imposing a more demanding burden on plaintiffs when pleading a case. Those who practice in federal court are familiar with the notice pleading requirements of Rule 8(a).
Since 1938, when the Federal Rules of Civil Procedure were enacted by Congress, plaintiffs were required to plead a “short and plain statement of the claim showing that the pleader is entitled to relief.” Since then, courts often cited Conley v. Gibson , 355 U.S. 41 (1957), which stated that a claim was sufficient “unless it appears beyond doubt that [he] can prove no set of facts in support of his claim which would entitle him to relief.” Id., at 45-46.
Suddenly, in 2007, in a complex antitrust case not contemplated when the Rules of Civil Procedure were enacted, the Supreme Court in Twombly expressly overruled Conle y and heightened the standard to require plaintiffs to plead “enough factual matter” to make the claim “plausible on its face.”
In 2009, the Iqbal court held that the new standard applied to all civil cases in federal court and a judge could determine plausibility based upon her experience and common sense, a standard that even learned scholars have found to be troublesome because such a finding could be affected by a judge’s conscious and unconscious biases.
Let’s look at how it’s been applied here. In Radke v. University of Illinois at Urbana-Champaign , 263 F.R.D. 498 (N.D.Ill., 2009), the plaintiff sought to commence a class action on behalf of all applicants who had been denied admission to Illinois based upon a so-called “clout list” during a 10-year period.
Judge Milton Shadur dismissed the contract and due process claims based on lack of subject matter jurisdiction. He also dismissed the plaintiff’s equal protection claim for failure to assert a plausible claim for damages and expressed “common sense” skepticism that the defect could be cured by an amended pleading. The entire suit was dismissed.
Many parties and judges have found the plausibility standard to be vague, troublesome and even subject to influence by political party bias. Plaintiffs found this extra hurdle can cause incurable and immeasurable harm because the ruling can discourage meritorious suits from being filed when a plaintiff, without discovery, lacks the necessary details to plead a sufficient complaint. Are similar cases being decided differently because the standard is new and untried? How can a plaintiff plead the intent and state of mind of the defendants, as Iqbal and Twombly require, when the facts and evidence that would support those elements are unreachable without discovery?
The proponents and opponents of the new standard are clearly split along plaintiff and defense lines, with defense counsel supporting the new standard, saying that it keeps meritless claims out of court and prevents expensive and burdensome discovery that they say is only a fishing expedition. Plaintiffs have said the new standard impedes access to justice because it discourages and even bars some legitimate cases from the courts, particularly where the facts that need to be pleaded are exclusively in the hands of the defendant.
Concern also is raised about disposition of cases earlier in the proceedings. How can judges find that a claim is plausible at the moment it is filed? The real standard that should be followed is not plausibility but whether the case being pleaded is leading to a legitimate claim under the law.
There is even a dispute as to whether individual courts or even the Supreme Court are best suited to decide this issue or whether the Civil Rules Committee of the Federal Judicial Conference or even Congress should propose a pleading standard. In the last Congress, bills were introduced to throw out the decisions’ new standards and return to some version of the prior law. But since November, members of Congress have cooled on the issue.
Iqbal and Twombly have been cited more than 24,000 times in their short history with rulings that have applied the standard differently, creating a sense of unpredictability for litigants. Courts also are mixing facts with conclusions in their application of the Twombly/Iqbal standard because of the Iqbal language that requires judges, in considering a Rule 12(b)(6) motion, to disregard legal conclusions and focus only on the factual allegations, as if there were a clear distinction between the two.
Certainly in this age of technology where discovery can be burdensome, a middle ground should be maintained to ensure that the discovery process isn’t abused, but not at the expense of compromising plaintiffs’ potential legitimate causes of action.