June 12, 2007
Dodson on Erickson
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).
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Twombly footnote 10 is an interesting one. The Court says: "If the complaint had not explained that the claim of agreement rested on the parallel conduct described, we doubt that the complaint's references to an agreement among the ILECs would have given the notice required by Rule 8." (emphasis added)
So the complaint gave sufficient notice of the factual claims underpinning the plaintiffs' theory -- given the Court's relatively truncated interpretation of what the plaintiffs' theory was. But Justice Stevens's dissent argues that, in reality, the plaintiffs also alleged a direct agreement among the defendants to restrain trade:
"[T]he plaintiffs allege in three places in their complaint, ¶¶ 4, 51, 64, . . . that the ILECs did in fact agree both to prevent competitors from entering into their local markets and to forgo competition with each other. And as the Court recognizes, at the motion to dismiss stage, a judge assumes “that all the allegations in the complaint are true (even if doubtful in fact).” . . . The majority circumvents this obvious obstacle to dismissal by pretending that it does not exist. The Court admits that “in form a few stray statements in the complaint speak directly of agreement,” but disregards those allegations by saying that “on fair reading these are merely legal conclusions resting on the prior allegations” of parallel conduct. Ante, at 1970. The Court's dichotomy between factual allegations and “legal conclusions” is the stuff of a bygone era . . ."
Pretty persuasive. I think the most sensible reading of Twombly is that the plaintiffs' allegations of direct agreement failed due to insufficient notice, as footnote 10 suggests. They were too conclusory to permit the defendants to make a reasonable investigation. In contrast, the remaining allegations (the allegations of parallel conduct) were pleaded in sufficient factual detail to give the defendants adequate notice, but they failed because they didn't suggest illegal conduct with sufficient plausibility. Cf. Twombly fn. 5 (citing a lower court antitrust conspiracy case, and distinguishing "the line between the conclusory and the factual" from the line "between the factually neutral and the factually suggestive," and stressing that "[e]ach [line] must be crossed" to state a claim).
The holding rests on "plausibility," and that remains the big news, but Twombly has something to say about notice too. This gives significance to the countervailing notice holding in Erickson.
I liked Scott's closing jab about the raft of litigation Twombly will engender. The decision is 23 days old and Westlaw currently shows over fifty federal judicial opinions applying it.
Posted by: Mike O'Shea | Jun 13, 2007 7:21:15 PM
I agree with you in some respects, but I actually think that there is not as much disagreement between the majority and the dissent about notice as perhaps you see. Both appear to agree that, without the allegations of parallel conduct, the bare allegations of an "agreement" would not have given notice. Compare majority op. at 18 n.10 with dissenting op. at 11 n.6 ("[H]ad the pleadings contained only an allegation of agreement, without specifying the nature or object of that agreement, they would have been susceptible to the charge that they did not provide sufficient notice that the defendants may answer intelligently."). Both also appear to agree the complaint in this case did not fail in the majority's view for lack of notice but for lack of plausibility. See dissenting op. at 19 n.8 ("Here, the failure the majority identifies is not a failure of notice--which 'notice pleading' rightly condemns--but rather a failure to satisfy the Court that the agreement alleged might plausibly have occurred."). It seems to me that the difference is that Stevens would include the allegations of parallel conduct to get over the notice hurdle whereas Souter would disregard them because they are implausible. Some of the disagreement might also stem from the divergent readings of the complaint; as you say, Stevens sees allegations of direct agreement, but Souter sees only allegations of agreement implied by parallel conduct. See majority op. at 19 n.11.
But it still seems to be that the notice issues in Bell Atlantic are far removed from Erickson, in which notice was clearly satisfied. The allegations in Erickson provide notice akin to those in in Form 9, which both the majority and dissent in Bell Atlantic agreed were proper. So, bottom line, I just don't think Erickson and Bell Atlantic say much about each other. But, as I said, only time will tell! And I agree wholeheartedly that footnote 10 is an interesting one; I would bet that it will be cited many times for varying propositions.
Posted by: Scott Dodson | Jun 14, 2007 10:06:23 AM