Monday, November 17, 2014
We covered earlier the Supreme Court’s per curiam decision in Johnson v. City of Shelby summarily reversing the Fifth Circuit. It’s a short opinion—just two and a half pages—but it has some important things to say about pleading standards. Here are a few quick thoughts:
The primary issue in the case is whether the district court properly rejected the plaintiffs’ due process claim for failing to invoke 42 U.S.C. § 1983 explicitly in their complaint. The Fifth Circuit had affirmed based on a misguided line of lower court decisions finding complaints to be “fatally defective” for failing to cite § 1983. The Supreme Court’s Johnson opinion makes clear that this line of cases is wrong—a plaintiff’s failure to cite § 1983 in his or her complaint is not fatal. From page 1 of the slip opinion: “Federal pleading rules call for ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”
Nonetheless, the Court states that—on remand—the Johnson plaintiffs “should be accorded an opportunity to add to their complaint a citation to § 1983.” [Slip Op., p.3] This is admittedly somewhat puzzling. Why would there be any need to amend the complaint to include something that is not required? One possible explanation is that the plaintiffs had asked the district court for leave to amend the complaint, but the court refused and the Fifth Circuit affirmed that refusal. It is valuable, therefore, for the Supreme Court to reemphasize—with its citation to Rule 15(a)(2)—the Federal Rules’ instruction that “[t]he court should freely give leave when justice so requires.” [See Slip Op., p.3] In any event, the Supreme Court simply insists that the plaintiffs have an opportunity to add a citation to § 1983 to their complaint (as they requested). Given the Supreme Court’s conclusion that no such citation is required, it would be entirely proper for the Johnson plaintiffs and the lower court to agree that no amendment to the complaint is necessary in order for the plaintiffs’ claims to be resolved on the merits.
The most intriguing part of the Supreme Court’s Johnson opinion, however, may be the paragraph discussing Twombly and Iqbal. The Court initially notes that Twombly and Iqbal do not resolve whether the plaintiffs were required to cite § 1983 in the complaint, because Twombly and Iqbal “concern the factual allegations a complaint must contain to survive a motion to dismiss.” [Slip Op., p.2 (court’s emphasis)] But the Court goes on to say that the complaint in Johnson was “not deficient” under Twombly and Iqbal because the plaintiffs “stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e).” [Slip Op., pp.2-3]
Can a plaintiff really comply with Twombly and Iqbal merely by “stat[ing] simply, concisely, and directly events that, they alleged, entitled them to damages from the city”? Yes. Keep in mind: even Iqbal recognized that non-conclusory allegations must be accepted as true at the pleadings phase, without any inquiry into whether the truth of those allegations is plausibly suggested by other allegations. One of many frustrating aspects of the Iqbal majority opinion was that it failed to explain what made the crucial allegations in the Iqbal complaint too conclusory to be accepted as true. But I’ve argued elsewhere that one way to make sense of Twombly and Iqbal—in light of the text and structure of the Federal Rules and Supreme Court precedent that remains good law—is through a transactional approach to pleading. That is, an allegation is conclusory when it fails to identify adequately the acts or events that entitle the plaintiff to relief from the defendant. It is only when an allegation obscures the underlying real-world events with mere legal conclusions that it should be disregarded as conclusory under Iqbal.
On this point, it’s particularly interesting that the plaintiffs’ claim in Johnson was “that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen.” [Slip Op., p. 1] Such a claim—like the claim at issue in Iqbal—hinges on the defendants’ intent. Properly understood, Iqbal does not hold that an allegation is “conclusory” simply because it alleges that a defendant acted with a certain state of mind. Rather, such an allegation should be accepted as true—including its description of the defendant’s intent—as long as it provides a basic identification of the liability-generating events or transactions. The Supreme Court’s reasoning in Johnson is consistent with this approach, and confirms that Twombly and Iqbal need not be read to impose heightened burdens on plaintiffs at the pleadings phase.
All in all, Johnson v. City of Shelby is a short-but-sweet per curiam opinion that not only gets the right result on the primary issue presented, but also reflects a more sensible approach to pleading generally. Lower courts should take note.
Saturday, November 15, 2014
On Monday we covered Johnson v. City of Shelby, a per curiam Supreme Court decision on pleading that summarily reversed the Fifth Circuit. Here’s some of the coverage of that decision from this past week:
- City of Shelby: New SCOTUS Pleadings Opinion in Visual Context (Colin Starger)
- SCOTUS Per Curiam Procedure Decisions Raise (At Least) As Many Questions As They Settle (Michael Dorf)
- Twombly’s Remorse (Barry Barnett)
Friday, November 14, 2014
Now available on the Courts Law section of JOTWELL is an essay by Jim Pfander entitled How Lower-Court Precedent Affects Supreme Court Precedent. Jim reviews Aaron Bruhl’s recent article, Following Lower-Court Precedent, 81 U. Chi. L. Rev. 851 (2014).
Monday, November 10, 2014
We’ve been watching Johnson v. City of Shelby, a case raising some important questions on pleading standards that the Supreme Court relisted several times. Today the Court issued a per curiam decision summarily reversing the Fifth Circuit. It appears following today’s order list (beginning at page 11 of the .pdf file). Here are some highlights:
Plaintiffs below, petitioners here, worked as police officers for the city of Shelby, Mississippi. They allege that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen. Charging violations of their Fourteenth Amendment due process rights, they sought compensatory relief from the city. Summary judgment was entered against them in the District Court, and affirmed on appeal, for failure to invoke 42 U. S. C. §1983 in their complaint.
We summarily reverse. Federal pleading rules call for “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A. Steinman, Federal Practice and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure “are designed to discourage battles over mere form of statement”); 5 C. Wright & A. Miller, §1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) “indicates that a basic objective of the rules is to avoid civil cases turning on technicalities”).
Our decisions in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662 (2009), are not in point, for they concern the factual allegations a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard. Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e). For clarification and to ward off further insistence on a punctiliously stated “theory of the pleadings,” petitioners, on remand, should be accorded an opportunity to add to their complaint a citation to §1983. See 5 Wright & Miller, supra, §1219, at 277–278 (“The federal rules effectively abolish the restrictive theory of the pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the plaintiff’s claim for relief.” (footnotes omitted)); Fed. Rules Civ. Proc. 15(a)(2) (“The court should freely give leave [to amend a pleading] when justice so requires.”).
Friday, November 7, 2014
Whether, under Federal Rule of Civil Procedure 4(m), a district court has discretion to extend the time for service of process absent a showing of good cause, as the Second, Third, Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether the district court lacks such discretion, as the Fourth Circuit has held?
You can find links to the cert. stage briefing (as well as the merits briefs as they come in) at SCOTUSblog’s Chen case file.
Tuesday, November 4, 2014
Michael J. Gerhardt and Michael Ashley Stein have posted on SSRN their article, The Politics of Early Justice, Lower Court Federal Judicial Selection 1789-1861, forthcoming in Iowa Law Review.
Almost every commentary on the history of the selection of federal judges presumes that there was some prior golden era in which national political leaders focused primarily on the merit of individual nominees and were not unduly swayed by partisan politics or ideology. Numerous constitutional scholars — and national leaders — have therefore roundly criticized the modern day judicial selection process, citing unprecedented delays and a low percentage of approval of federal court nominees as evidence that the system has broken down. They have argued that the ways in which senators, as well as presidents, have handled lower court nominations in the modern era have deviated from how the nation’s first chief executives and the first few Senates handled such nominations. Yet, there is one glaring omission in almost all commentaries on disputes over judicial selection over the past few decades — the absence of any substantiation of an earlier, so-called golden era, in which there actually was general deference within the Senate to presidents’ nominations to federal district and appellate judgeships. Even the classic work on federal judicial selection by the late Kermit Hall begins its analysis of federal judicial selection in 1825, disregarding nearly forty years of prior practices in the field and reinforcing the received but unsubstantiated assumptions about how judicial nominations to lower courts fared beforehand.
This Article is the first to make a serious comprehensive historiography of federal judicial selection from 1789-1861 in the United States. Following six years of archival and secondary source research, we identified each of the lower court nominations made by presidents from George Washington through James Buchanan and then tracked the Senate’s actions on each of their nominations through both archival and secondary sources. Further, we identified the criteria employed in the first seven decades of judicial nominations as well as the outcomes of, and grounds for, the Senate’s proceedings for all of these nominations. We believe that the results of this unprecedented study are significant because they provide a window into an era of early federal judicial selection that has been virtually ignored by both commentators and national political leaders. While we identified some antiquated practices, such as several of the earliest presidents’ judicial nominees actually declining judgeships after the Senate had confirmed their nominations, we found other patterns of practice that are similar to contemporary developments. Among the most significant of these latter patterns are the facts that: every antebellum president took political considerations into account in making nominations; all antebellum presidents, with the exception of William Henry Harrison, had most of their judicial nominations confirmed by the Senate; and three antebellum presidents — George Washington, Martin Van Buren, and James Polk — enjoyed 100% of their judicial nominations confirmed by the Senate. Yet, political parties, particularly in times of divided government, often split along party lines in judicial confirmation proceedings, and several judicial nominations in the antebellum period failed because of opposition based on the particular nominees’ ideologies or past political decisions. In short, there was no golden era of judicial nominations but rather different eras in which politics, in different ways, shaped federal judicial selection.
Monday, November 3, 2014
Over on the Courts Law section of JOTWELL is an essay by Steve Vladeck entitled Appealing to Injustice. Steve reviews Bill Richman and Bill Reynolds' recent book, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford Univ. Press 2013).
Thursday, October 16, 2014
Cases on Tap for Tomorrow’s SCOTUS Conference: Are Cert Grants Coming on Pleading and Personal Jurisdiction?
A couple of cases on the calendar for tomorrow's Supreme Court conference are worth a quick mention. Both appear on SCOTUSblog’s "relist" list. (That they had already been calendared for previous conferences and avoided a quick cert. denial presumably means they generated at least some interest or need for further inquiry.)
One is Johnson v. City of Shelby, a case out of the Fifth Circuit that raises some interesting questions about pleading standards that we covered earlier. This is the second time Johnson has been relisted.
Another is AEP Energy Services v. Heartland Regional Medical Center, a case out of the Ninth Circuit on personal jurisdiction. Here are the questions presented in AEP:
1. Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants based on the plaintiffs’ bare allegation that the defendants engaged in a nationwide conspiracy outside the forum that had an intended effect inside the forum (as well as presumably in every other state).
2. Whether due process permits a court to exercise specific personal jurisdiction over non-consenting, out-of-state defendants when the defendants’ limited forum conduct bears no causal relationship to the plaintiffs’ claim.
You can find all of the AEP cert-stage briefs at SCOTUSblog. The Ninth Circuit’s opinion is In re Western States Wholesale Natural Gas Antitrust Litigation, 715 F.3d 716.
Wednesday, October 15, 2014
Over on the Courts Law section of JOTWELL is an essay by Lee Epstein entitled The Depreciation of Precedent. It reviews an article by Ryan Black and James Spriggs that was recently published in the Journal of Empirical Legal Studies.
Tuesday, October 14, 2014
Far from resting on its laurels after pushing through the latest round of defense-oriented amendments to the FRCP, the Advisory Committee on Civil Rules continues its assault. This time, among many other things, it's tackling class actions – as if the Supreme Court wasn't already doing a pretty good job of eviscerating class actions by itself.
The 588-page agenda book for the Committee's meeting in Washington, D.C. on October 30-31, 2014 is on the U.S. Courts website here.
The Supreme Court of Ohio issued an interesting decision last week involving standing, subject matter jurisdiction, and whether they can be challenged via Ohio Rule 60(b) after the opportunity for a direct appeal has passed. The case is Bank of America, N.A. v. Kutcha.
Marianna Bettman has an analysis of the opinion, calling it a “Field Day for Civil Procedure Geeks.”
Monday, October 13, 2014
It reviews a recent article by Martin Redish and Jennifer Aronoff, The Real Constitutional Problem with State Judicial Selection: Due Process Judicial Retention and the Dangers of Popular Constitutionalism, which will appear in the William & Mary Law Review.
Thursday, October 9, 2014
1. Is a federal complaint subject to dismissal when it fails to cite the statute authorizing the cause of action?
2. Do the lower federal courts have authority to create pleading requirements for complaints when those requirements are not contained in the Federal Rules of Civil Procedure?
3. Should a federal complaint be dismissed when it alleges the elements of a 42 U.S.C. § 1983 claim, but does not cite 42 U.S.C. § 1983?
It's been re-calendared for this Friday's conference (10/10). Here's the Fifth Circuit's decision below.
(Hat Tip: Shaun Shaughnessy)
We've been following the diversity-jurisdiction saga of a GlaxoSmithKline holding company ("GSK"). Last year in Johnson v. SmithKline Beecham Corp., No. 12-2561 (3d Cir. June 7, 2013), the Third Circuit ruled that GSK's ten-by-ten foot subleased office in Delaware makes Delaware its principal place of business and thus a Delaware citizen for diversity purposes.
Since then, GSK has tried to use its newfound Delaware citizenship to forum-shop in several other diversity cases. Before Johnson, GSK had removed one of these cases, A.S. v. SmithKlineBeecham Corp. d/b/a GlaxoSmithKline, a personal injury case alleging that GSK's drug Paxil caused birth defects, from Pennsylvania state court. The district court remanded the case in 2012, holding that GSK was a Pennsylvania citizen. After Johnson held in 2013 that GSK was a Delaware citizen, GSK removed the case a second time. This time, the district court denied plaintiffs' motion to remand.
On an interlocutory appeal by permission, the Third Circuit reversed and remanded with instructions to remand to Pennsylvania state court. The court held that the second removal was untimely under 28 U.S.C. §1446(b), both because it was filed more than 30 days after GSK's receipt of the complaint, and because in a diversity case, removal may not occur more than one year after the commencement of the action. The court rejected both equitable tolling of the time period and the notion that the second notice of removal "related back" to the first notice of removal. A.S. v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, No. 14-1229 (3d Cir. Oct. 9, 2014).
Hat tip: Howard Bashman of the How Appealing blog, who argued the successful appeal for the plaintiffs.
Tuesday, October 7, 2014
Here is the transcript from today's oral argument in Dart Cherokee Basin Operating Co. v. Owens. Some pretty interesting exchanges--although many of them had nothing to do with the actual question presented. The Justices spent a considerable amount of time on the jurisdictional/abuse-of-discretion argument first raised by Public Citizen in an amicus brief.
The question for which cert. was granted was this:
"Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required 'short and plain statement of the grounds for removal' enough?"
As to that issue, Justice Kagan commented to Petitioner's counsel that "most of us agree with you on the merits," although Justice Alito quickly responded, "That might be a little premature." [p.21]
The whole transcript is worth a read (if you're into that sort of thing), but here's one exchange between Justice Breyer and Respondent's counsel that speaks volumes about the state of pleading standards after Twombly and Iqbal:
MR. SHARP: [T]hat was part of the district court's opinion. There were two parts. One was that there wasn't any evidence; and the second part was that it was conclusory, that there were no facts. All you said was 8.2 million. And so both of those were possible --
JUSTICE BREYER: Isn't that a fact?
MR. SHARP: Excuse me, Your Honor?
JUSTICE BREYER: Isn't 8.2 million a fact?
MR. SHARP: It's a conclusory fact.
JUSTICE BREYER: Well, it's a fact. They said in their view --
MR. SHARP: It's a conclusion.
JUSTICE BREYER: All right. I don't know what a conclusory fact is as opposed to a regular fact.
Sunday, October 5, 2014
First Monday, baby. And right out of the gate is Dart Cherokee Basin Operating Co. v. Owens, which will be argued on First Tuesday (October 7). The SCOTUSblog argument preview by Ron Mann (Columbia) says the case “could have come straight out of a law-school exam.” Here’s the question presented:
Whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or is alleging the required “short and plain statement of the grounds for removal” enough?
There’s also an interesting side issue regarding the extent of the Supreme Court’s jurisdiction when a federal appellate court has exercised discretion to deny leave to appeal under the special appellate provisions of the Class Action Fairness Act [28 U.S.C. § 1453(c)]. An amicus brief filed by Public Citizen argues that “the only question properly before the Court in this case is whether the court of appeals abused its discretion when it denied leave to appeal.”
Friday, October 3, 2014
Below is a link to the announcement and call for papers for the First Annual Civil Procedure Workshop, which is being organized by Brooke Coleman (Seattle University), Liz Porter (University of Washington) and Dave Marcus (University of Arizona). It will be held at Seattle University on July 16-17, 2015. Future conferences will take place at the University of Washington and the University of Arizona. The deadline to submit abstracts is December 15, 2014.
Monday, September 29, 2014
SCOTUSblog reports that the Court dismissed the writ of certiorari in Public Employees' Retirement System v. IndyMac MBS, Inc. as improvidently granted. The issue in the case was whether the filing of a putative class action serves, under American Pipe & Construction Co. v. Utah, to satisfy the three year time limitation in § 13 of the Securities Act with respect to the claims of putative class members.
The Court was set to hear argument in the case on Monday, but became aware of a pending settlement proposal.
Wednesday, September 17, 2014
Rich Freer (Emory) has posted on SSRN a draft of his article, Four Specific Problems with the New General Jurisdiction, which will be published in the Nevada Law Journal. Here’s the abstract:
General in personam jurisdiction allows a court to enter judgment against a defendant regarding a claim that did not arise in the forum. Traditionally, based upon International Shoe (1945), courts have exercised general jurisdiction over corporations based upon their "continuous and systematic" activities in the forum. In Goodyear Dunlop Tires Operations, S.A. v. Brown (2011) and Daimler AG v. Bauman (2014), the Supreme Court has restricted general jurisdiction by making it available only where the defendant is "at home" (a notion apparently never adopted by any state court as a proxy for general jurisdiction).
Goodyear and Daimler were easy cases. The lower courts' exercise of general jurisdiction in each was risible. Instead of simply reversing the efforts, the Court decided several issues it did not need to decide and upset accepted understanding of activities-based general jurisdiction. Because the Court has never explained why we have general jurisdiction, it failed to explain why the new restriction is needed or appropriate.
This article focuses on four specific problems created by the new jurisprudence: (1) the Court unnecessarily prohibits general jurisdiction based upon sales into a forum, which will hamper growth of jurisdictional doctrine in Internet cases; (2) by ignoring corporate activities, the Court ignores the sorts of corporate contact that would be analogous to human domicile, which, the Court says, is the paradigm of "at home"; (3) by rendering activities-based general jurisdiction practically impossible and (4) by inexplicably jettisoning the "fairness factors" of International Shoe in general jurisdiction cases, the Court exacerbates its parsimonious view of specific jurisdiction by denying judicial access to American plaintiffs injured by foreign corporations.
Though some restriction of general jurisdiction may have been appropriate, it should have been measured and well-tailored to the underlying purpose of general jurisdiction. The Court's recent effort is not.
Tuesday, September 16, 2014