Tuesday, June 12, 2007
Last week we reported on Erickson v. Pardus, the Court's first pleading decision since Bell Atlantic v. Twombly. Below, Prof. Scott Dodson offers his thoughts on Erickson. Dodson's original thoughts on Bell Atlantic can be found here. --RR
When the Supreme Court issued Bell Atlantic v. Twombly on May 21, there was much discussion about what the case means and how important it is. I was one of the first to blog about it here (along with several others, including Randy Picker, Mike Dorf, Einer Elhauge, and Marty Lederman) and my initial reaction was that the Court changed the pleading landscape in important ways by repudiating the “no set of facts” language of Conley v. Gibson and instituting a “notice-plus” standard under Rule 8.
The debate was just beginning when the Supreme Court issued another pleading opinion on June 4, Erickson v. Pardus, a per curiam summary decision. Now, a new wave of commentary is trying to reconcile the two cases (see here and here and here), and some have suggested that Erickson could be viewed as a “DGCA” (or “Don’t Get Carried Away”) opinion designed to caution against an over-expansive reading of Bell Atlantic.
That may or may not be, and I agree with Amy Howe that the timing of Erickson is suspicious. But, I adhere to my initial view and believe that Bell Atlantic still means exactly what it did the day it was decided: mere notice pleading is no more. And Erickson confirms, rather than questions, that reading.
There have been good summaries of Bell Atlantic in the posts listed above, and I will not repeat them in detail. Suffice it to say that Bell Atlantic interred the familiar language from Conley “that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitled him to relief.” In its place, Bell Atlantic requires that the complaint provide both notice of the claim and the “grounds” upon which it rests. In the antitrust context of Bell Atlantic, that meant providing some showing to allow the complaint, read as a whole, to set forth a “plausible” claim for relief.
As I blogged in my initial post, Bell Atlantic sets a “notice-plus” pleading standard. Mere notice is no longer sufficient. In fact, in footnote 10, the Court implied that the complaint provided the requisite notice. Where the complaint faltered was on the additional requirement of “grounds,” which require, in the words of Bell Atlantic, “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Justice Stevens, in dissent, picked up on the significance of Bell Atlantic, contrasting its new standard with pure notice pleading.
Thus, I do not see how some can read Bell Atlantic as “not turn[ing] away from notice pleading” or “merely elaborate[ing] on the question what it means for a complaint to give ‘notice,’” or as “quite insignificant.”
Nor do I see how Erickson changes anything. There, a prisoner asserted a § 1983 claim under the Eighth Amendment and alleged (1) that he had hepatitis C, (2) that he was on a one-year treatment program for it, (3) that shortly after the program began the prison officials started withholding the treatment, and (4) that his life was in danger as a result. As Mike O’Shea noted, those allegations are sufficient under any Rule 8 standard. Coupled with the fact that the plaintiff was proceeding pro se, the Court’s reversal of a dismissal for failure to state a claim was a no-brainer. Erickson just doesn’t say much about complaints that approximate mere notice pleading the way the complaint in Bell Atlantic did.
True, Erickson does say that “specific facts are not necessary,” but that was the case in Bell Atlantic, too, as pages 23-24 and note 14 of the slip opinion make clear. “Specific facts” means the particularized pleading reserved for Rule 9 claims. What Rule 8 requires after both Erickson and Bell Atlantic are not specific facts but sufficient facts such that the complaint as a whole makes a “showing” of entitlement to relief.
In short, if Erickson is a warning not to get so carried away as to read Bell Atlantic as authorizing dismissals of complaints like the one in Erickson, then Erickson is not much of a warning at all.
The importance of Erickson, in my view, is that it reaffirms Bell Atlantic’s notice-plus standard. Erickson cites Bell Atlantic for the proposition that the complaint must “give the defendant fair notice of what the claim is and the grounds upon which it rests.” Erickson reaffirms that the “no set of facts” language is no longer to be cited and that, instead, the notice-plus-grounds standard of Bell Atlantic controls.
Of course, only time will tell what the two cases actually mean, but we at least can be confident that it will take, in Justice Souter’s words, “sprawling, costly, and hugely time-consuming” litigation to find out.
UPDATE: Professor Dodson has just published more extensive views on Bell Atlantic and Erickson in an essay entitled "Pleading Standards after Bell Atlantic v. Twombly," 93 Va. L. Rev. In Brief 121 (July 9, 2007).