Friday, December 7, 2012

Dodson on Dismissal Rates in Federal Civil Cases

Scott Dodson of University of California Hastings College of the Law has posted on SSRN his paper, “A New Look: Dismissal Rates in Federal Civil Cases,” forthcoming in 96 Judicature.

Abstract:

In the wake of Twombly and Iqbal, a number of studies have been conducted to determine the decisions' effects on dismissal practice in federal civil cases. However, those studies have tended to code whole cases rather than claims -- leading to the ambiguous coding category of “mixed” dismissals and to problems in characterizing the nature of the dispute -- and have failed to distinguish between legal sufficiency and factual sufficiency, potentially masking important detail about the effects of the pleadings changes.

This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim -- rather than whole case -- subject to an adjudicated Rule 12(b)(6) motion. For each claim, I also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.

The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. I also find an increase in the relative prevalence and efficacy of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the relative prevalence and efficacy of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both movant strategy and judicial reasoning.

--PM

December 7, 2012 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Friday, October 5, 2012

Curry and Ward on Twiqbal's Effect on Removal Rates from State to Federal Court

To be published in Texas Tech Law Review and posted on SSRN: Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State, by Jill Curry and Matthew Ward.

Abstract:

This article originated from a 2010-11 study the Federal Judicial Center conducted to examine the impact, if any, of the Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation in the United States federal courts. To examine this impact, we compared removal rates of cases to federal courts between states using notice pleading standards and states using fact pleading standards. We predicted that heightened pleading standards in federal courts would encourage plaintiffs in cases with federal and state claims, especially plaintiffs alleging a violation of their civil rights, to file in
state courts to benefit from the liberal notice pleading standard. Therefore, defendants would be more likely to remove such cases filed in notice pleading state court to federal courts to take advantage of the newly announced heightened pleading standard. After reviewing existing commentary and existing empirical research about the impact of Twombly and Iqbal, we explain the methodology for our removal study, present the results of a preliminary study to examine removal rates of four states, and subsequently present the results of our expanded examination of removal rates of all fifty states and the District of Columbia. However, the results demonstrate that these expectations were not met. There was no systematic increase in the rate of removal after Twombly and Iqbal and the effect was not more pronounced in notice pleading states compared to fact pleading states, questioning the assertion that cases are being diverted from federal court to state courts due to heightened pleading standards.  

--PM      

October 5, 2012 in Recent Scholarship, State Courts, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, August 8, 2012

Hoffman on “Rulemaking in the Age of Twombly and Iqbal”

Lonny Hoffman has just posted on SSRN the above-titled paper.

Abstract:

In this article I am essentially trying to answer one critical question: Faced with the controversy triggered by the Supreme Court’s decisions in Bell Atlantic Co. v. Twombly (2007) and Ashcroft v. Iqbal (2009), particularly over access to the courts, why have judicial rulemakers not proposed rule reforms to address the concerns raised? This question is particularly puzzling when one realizes that over the last seventy-five years the rules committees have consistently rejected proposals to stiffen pleading requirements along lines similar to what the Court decreed in Twombly and Iqbal. It is as if Congress had repeatedly voted against amending a statute that had been on the books for years only to have the Court through judicial interpretation effectively rewrite the law as though it had been amended. While we reasonably might predict that at least some in Congress would call for a legislative response if this happened, five years after Twombly no proposals for rule reform have been forthcoming and there is no momentum on the rules committees in favor of reform. Why? In this paper I argue that uncovering what has kept rulemakers from acting in the past permits us to interrogate whether those reasons can justify the same course in the future. Ultimately, I conclude that the justifications of the past are no longer sufficient and that the case for immediate rule reform is strong. Beyond its immediate relevance to the unresolved pleading problem, the added perspective gained by examination of the rulemakers’ deliberations can also deepen our understanding of the rulemaking process generally, providing new insights about how the process of making new rules and evaluating existing ones may be improved.

PM

August 8, 2012 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Tuesday, May 29, 2012

Malveaux on Sullivan on Iqbal and Employment Discrimination

Now available on the Courts Law section of JOTWELL is an essay by Prof. Suzette Malveaux (Catholic University) entitled Plausibility Pleading and Employment Discrimination. It reviews a recent article by Prof. Charles Sullivan (Seton Hall), Plausibly Pleading Employment Discrimination, 52 Wm. & Mary L. Rev. 1613 (2011). The review begins:

In a sea of law review articles analyzing the potential impact of the more rigorous federal pleading standard of Ashcroft v. Iqbal, Charles Sullivan’s Plausibly Pleading Employment Discrimination stands out for a number of reasons.  As an initial matter, Sullivan grapples with an important question plaguing the civil rights community and the employment bar: does Swierkiewicz v. Sorema—the unanimous 2002 opinion that took a lenient approach to pleading discrimination cases—remain good law post-Iqbal?  Sullivan argues that Iqbal did not overturn Swierkiewicz, leaving intact the ability of plaintiffs to plead employment discrimination without alleging a prima facie case under the McDonnell Douglas test.

But Sullivan then considers the alternate view: assuming arguendo that Iqbal did overrule Swierkiewicz, what should plaintiffs do to avoid dismissal for failure to state a claim under this more rigorous pleading regime?  Sullivan offers a variety of approaches, each with strengths and weaknesses. This willingness to explore the proverbial edge of the envelope makes this article a compelling read.  It combines pragmatism, creativity, and boldness at a time when many are struggling to make sense of the impact of the new federal pleadings standard in the civil rights arena.  Given the importance of pleadings as an access to justice issue, this article provides an invaluable perspective.

--A

May 29, 2012 in Recent Scholarship, Twombly/Iqbal, Weblogs | Permalink | Comments (0)

Thursday, April 19, 2012

Conference on Summary Judgment, Iqbal, and Employment Discrimination (New York Law School, Apr. 23, 2012)

As covered earlier, New York Law School is hosting a conference next Monday entitled, Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination. Details available here.

--A

April 19, 2012 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0)

Monday, March 19, 2012

Author of FJC’s Study of 12(b)(6) Motions Posts Response to Academic Criticism

Joe S. Cecil, the primary author of the Federal Judicial Center’s empirical study of the impact of Iqbal, just posted (on SSRN) a response to concerns expressed about that study (including criticisms by Professors Lonny Hoffman, Ray Brescia, Jonah Gelbach, and me).  I have not had the opportunity to read it closely, having just received it, but it appears to be a thoughtful and gracious response.  The abstract reads:

This paper responds to comments regarding the Federal Judicial Center’s recent studies of the resolution of motions to dismiss for failure to state a claim. Those studies, undertaken at the request of the Judicial Conference Advisory Committee on Civil Rules, found a statistically significant increase in the rate at which defendants file motions to dismiss following the Supreme Court decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal. The studies also found no statistically significant increase in the rate of grants of motions to dismiss without leave to amend, except in cases involving challenges to financial instruments such as mortgages, and no statistically significant increase in cases terminated by such motions. Several scholars have expressed reservations regarding these findings and raised a number of specific issues regarding the research. This paper responds to the following issues:
• Professor Hoffman’s concerns about our use of statistical analysis in general, and the use of multinomial statistical models in particular;
• Professor Moore’s concerns about the exclusion from our study of pro se cases and cases asserting affirmative defenses, and the findings of her most recent study of the outcome of motions to dismiss;
• Professor Brescia’s recent study finding an increase in grant rate of motions to dismiss in employment and housing discrimination cases; and
• Professor Gelbach’s incorporation of our findings into an economic model of pretrial litigation that attempts to estimate the overall effect on settlement and access to discovery.
I continue to believe that our findings represent the most accurate statement of the federal district courts’ response to these Supreme Court decisions, but acknowledge that this response has continued to evolve since we conducted our study. I propose a study of all dispositive motions that will, among other things, examine the interaction between motions to dismiss for failure to state a claim and motions for summary judgment.

Mr. Cecil and I had numerous communications back and forth in which we clarified our respective positions.  Some of his points on my study are well-taken, although I do not agree with them all.  For me, the bottom line is that the FJC has taken the concerns about its study very seriously, and I am glad to have participated in this debate. 

As noted in the abstract, Mr. Cecil anticipates that the FJC will soon launch another empirical study dealing with dispositive motion practice generally.  A very rough timeline envisions a report by 2013.        

PM    

March 19, 2012 in Federal Courts, Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Monday, February 13, 2012

Hoffman's Analysis of FJC Study of Twombly/Iqbal Published

Professor Lonny Hoffman's article, "Twombly and Iqbal's Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss" has just been published at 6 Fed. Cts. L. Rev. 1 (2012), available here

The abstract reads:

  This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after the U.S. Supreme Court’s decision in Ashcroft v. Iqbal. Three primary assessments are made of the FJC’s study. First, the FJC’s findings do not indicate that the Court’s decisions have had no effect on dismissal practice. To the contrary, the FJC found that after Iqbal, a plaintiff was twice as likely to face a motion to dismiss. This sizeable increase in the rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs. Similarly, the data regarding orders resolving dismissal motions demonstrates the consequential impacts of the Court’s cases, as in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Second, due to the inherent limitations of doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted before Twombly with after Iqbal does not indicate whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Finally, the data the FJC researchers gathered may be incomplete, particularly as to the filing rate. As a result, the study may be providing an incomplete picture of actual Rule 12(b)(6) activity.

PM

 

 

 

February 13, 2012 in Federal Courts, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, November 9, 2011

FJC posts updated study on 12(b)(6) motions granted with leave to amend

In its March 2011 study of the possible effect of Twombly and Iqbal on the resolution of 12(b)(6) motions, the FJC noted that it would look further at the eventual outcome of cases in which a 12(b)(6) motion was granted, but with leave to amend. 

That updated study has just been posted here. 

Thanks to Joe Cecil at the FJC for alerting me to the posting.

--PM

 

November 9, 2011 in Federal Courts, Federal Rules of Civil Procedure, Twombly/Iqbal | Permalink | Comments (0)

Wednesday, October 26, 2011

Conference at New York Law School on Summary Judgment, Iqbal, and Employment Discrimination on April 23, 2012

New York Law School Law Review has announced the following symposium:

The New York Law School Law Review and The Employee Rights Advocacy Institute For Law & Policy (“The Institute”) are pleased to present Trial by Jury or Trial by Motion? Summary Judgment, Iqbal and Employment Discrimination, a symposium that will examine the high failure rates of plaintiffs on pre- and post-trial motions in employment discrimination cases and explore potential strategies to reverse this growing trend.

The reality today is that motions for dismissal and for summary judgment are filed in nearly every case. Originally conceived as an efficient means to help plaintiffs in debt collection cases, Federal Rule of Civil Procedure 56 allowed judges to resolve quickly claims where material facts were not genuinely in dispute and the defendant could not mount a defense. Today, the drafters of Rule 56 would not recognize its expanded application, particularly in employment cases.

Encouraging this movement towards pre-trial adjudication of employment discrimination cases are the U.S. Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, through which the Supreme Court appeared to raise the quantum of facts that a plaintiff must plead to avoid successfully a motion to dismiss. As summary judgment is the accepted mechanism for evaluating the factual sufficiency of complaints, these rulings raise interesting questions as to whether the Court has blurred the line between motions to dismiss and motions for summary judgment.

The increasing prevalence of pre- and post-trial dispositive motions has had a demonstrably unique effect in cases alleging violations of employment discrimination laws. A substantial and growing body of evidence, both empirical and anecdotal, shows that civil rights cases, and in particular those alleging employment discrimination, are disproportionately susceptible to dismissal before trial as well as to unfavorable JNOV motions after trial.

Papers will be published in a forthcoming issue of the New York Law School Law Review.

For further information, click here.

--PHM

October 26, 2011 in Conferences/Symposia, Twombly/Iqbal | Permalink | Comments (0)

Sunday, October 9, 2011

Brescia on Iqbal's impact on employment and housing discrimination litigation

Forthcoming in the Kentucky Law Journal and posted on SSRN, Raymond Brescia has completed an empirical study of Iqbal's effect that, unlike past studies, attempts to focus solely on motions to dismiss going to the specificity of the pleadings. 

The abstract for "The Iqbal Effect: The Impact of New Pleadings Standards in Employment and Housing Discrimination Litigation" follows.

--PHM  

Abstract: In May 2009, the Supreme Court issued its decision in Ashcroft v. Iqbal, a case brought by an immigrant of Pakistani descent caught up in the worldwide investigation that followed the horrific attacks of September 11, 2001. In that decision, the Court extended the “plausibility test” first introduced two years earlier, in Bell Atlantic v. Twombly, to all civil pleadings in federal court. That test requires that, in order to satisfy federal pleading requirements, a complaint must allege a plausible set of facts. But what is plausible in a given case may be in the eye of the beholder.

In the two years since the Court reached its decision in Iqbal, that opinion has been cited roughly 25,000 times. The empirical analysis contained in this study attempts to gauge the impact of Iqbal on civil rights cases, specifically cases involving allegations of employment and/or housing discrimination. While several other studies have attempted to answer similar questions, to date, no study has analyzed this impact with reference solely to motions based on the specificity of the pleadings: which is, of course, the central issue in Twombly and Iqbal. In addition, other studies looked exclusively at quantitative results, with no assessment of the manner in which the plausibility standard was being applied by the lower courts. This empirical study attempts to fill that gap in the empirical research.

This study identified over 1850 reported decisions on motions to dismiss in employment and housing discrimination cases filed in federal district court covering the years prior to and after the Court’s decision in Twombly. From this group of cases, a smaller sub-set, totaling 634 cases, was identified by excluding those decisions—included in previous studies—that bore no relation to the issue of the specificity of the pleadings. Furthermore, despite this winnowing process, the sample size for this study was still considerably larger than those analyzed in previous studies. 

This detailed study yielded the following results. Surprisingly, the dismissal rate in this class of cases during a set time-period immediately prior to the Twombly decision was actually slightly higher than the dismissal rate of decisions issued in the time period between issuance of the Twombly and Iqbal decisions, but then the rate increases considerably after Iqbal. The dismissal rates for all cases pre-Twombly was 61%; between Twombly and Iqbal, it was 56%; but then after Iqbal, it was 72%, an 18% increase from the pre-Twombly period analyzed. 

In addition, even more troubling, plaintiffs were far more likely after Iqbal than either before Twombly or immediately thereafter to face a motion to dismiss challenging the sufficiency of the pleadings in the cases analyzed. Indeed, decisions on such motions were generated only 12 times in the first quarter of 2004 (the first quarter analyzed in this study), but then 61 times in the third quarter of 2010 (the last full quarter analyzed): a greater than 500% increase. 

Moreover, when it comes to the substance of these decisions, something else appears to be happening. Despite the increased dismissal rate following Iqbal, oddly, in a class of cases analyzed for this study, courts rarely invoked the plausibility standard in the same manner it was utilized by the Court in Twombly and Iqbal; that is, courts rarely found that dismissal was warranted if there was an arguably more plausible, and entirely legal, basis for the challenged conduct. Finally, and similarly, judges rarely, if ever, appear to invoke their own “experience and common sense,” as urged to by the Court, when ruling on motions to dismiss in these cases. 

These outcomes yield three conclusions. First, district courts are using the Iqbal precedent, though not necessarily Twombly, to dismiss employment and housing discrimination cases at an accelerated rate. Second, although courts may be invoking the Twombly/Iqbal plausibility standard in assessing the sufficiency of the pleadings in employment and housing discrimination cases, they are certainly not relying on or utilizing the plausibility standard as articulated in these two precedents. This suggests that the subjective elements of the plausibility standard may be infecting these outcomes. That is, if district court judges are dismissing cases at a higher rate post-Iqbal, yet are not relying on the guidance the Court has given such lower courts in how to deploy the plausibility standard, it would seem that such courts may feel emboldened to dismiss cases that might have survived such a motion had that motion been decided pre-Iqbal. Finally, regardless of whether there is a dramatic Twombly or Iqbal effect on outcomes, motions to dismiss challenging the sufficiency of the pleadings are much more common since Iqbal, which means that even if some plaintiffs are defeating such motions, it still comes at a price: it increases transactions costs in these cases, and may, as a result, have a chilling effect on lawyers contemplating bringing them in the first place.

October 9, 2011 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (1)

Thursday, August 18, 2011

Revised updated study of Iqbal’s quantitative effect

I have finally finished my revisions made after the March 2011 Federal Judicial Center study, and, with some trepidation, just posted the revised manuscript on SSRN.

Any and all comments and criticisms gratefully accepted. 

--Patricia Hatamyar Moore

August 18, 2011 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Monday, August 15, 2011

Distinguishing Iqbal, Seventh Circuit holds allegations against Donald Rumsfeld adequately state a Bivens claim

            In Vance v. Rumsfeld, 2011 WL 3437511 (7th Cir. Aug. 8, 2011), plaintiffs, who are American citizens and civilians, alleged that they were detained and tortured by U.S. military personnel in Iraq for several months in 2006, then were released without ever being charged with a crime.  Plaintiffs had worked for a privately-owned Iraqi security services company and began whistle-blowing when they became suspicious that the company was involved in corruption and other illegal activities.  Their detention by the U.S. military followed. 

            Plaintiffs filed a Bivens claim alleging Fifth Amendment substantive due process violations (Count I) against Donald Rumsfeld, the former Secretary of Defense, and others, for torture and cruel, inhuman treatment, among other claims.  Defendant Rumsfeld filed a 12(b)(6) motion based in part on the asserted failure of plaintiffs’ complaint to allege his personal responsibility for their treatment and on qualified immunity. 

            The district court denied the motion to dismiss Count I, and the Seventh Circuit (hearing the appeal under Sections 1291 and 1292(b)) affirmed:

To proceed with their Bivens claims, plaintiffs must allege facts indicating that Secretary Rumsfeld was personally involved in and responsible for the alleged constitutional violations. See Iqbal, 129 S.Ct. at 1948–49 . . .  “Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution.” Iqbal, 129 S.Ct. at 1948. As the Supreme Court said in Iqbal, “[t]he factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.” Id. Unlike in Iqbal, which was a discrimination case, where the plaintiff was required to plead that the defendant acted with discriminatory purpose, the minimum knowledge and intent required here would be deliberate indifference, as in analogous cases involving prison and school officials in domestic settings.  . . . .

The Federal Rules of Civil Procedure impose no special pleading requirements for Bivens claims, including those against former high-ranking government officials. See Swierkiewicz v. Sorema N.A ., 534 U.S. 506, 513–14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). The notice pleading standard under Rule 8 of the Federal Rules of Civil Procedure applies, and a plaintiff is required to provide a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a). The complaint will survive a motion to dismiss if it meets the “plausibility” standard applied in Iqbal and Twombly. . . . .

We agree with the district court's observation in this case: “Iqbal undoubtedly requires vigilance on our part to ensure that claims which do not state a plausible claim for relief are not allowed to occupy the time of high-ranking government officials. It is not, however, a categorical bar on claims against these officials.” 

The court then summarized the complaint’s extensive and detailed allegations of Rumsfeld’s involvement, concluding: 

We agree with the district court that the plaintiffs have alleged sufficient facts to show that Secretary Rumsfeld personally established the relevant policies that caused the alleged violations of their constitutional rights during detention. . . .

We agree with the district court that plaintiffs have articulated facts that, if true, would show the violation of a clearly established constitutional right. In fact, the defendants' argument to the contrary evaporates upon review. The plaintiffs have pled that they were subjected to treatment that constituted torture by U.S. officials while in U.S. custody. On what conceivable basis could a U.S. public official possibly conclude that it was constitutional to torture U.S. citizens?

--Patricia Hatamyar Moore

August 15, 2011 in Recent Decisions, Twombly/Iqbal | Permalink | Comments (0)

Thursday, August 4, 2011

Hoffman on Twombly/Iqbal and the FJC Study on Motions to Dismiss

Professor Lonny Hoffman (Houston) has posted on SSRN a draft of his article, Twombly and Iqbal's Measure: An Assessment of the Federal Judicial Center's Study of Motions to Dismiss. Here’s the abstract:

This paper provides the first comprehensive assessment of the Federal Judicial Center’s long-anticipated study of motions to dismiss for failure to state a claim after Iqbal v. Ashcroft. Three primary assessments are made of the FJC’s study. First, there are reasons to be concerned that the study may be providing an incomplete picture of actual Rule 12(b)(6) activity. Even if the failure to capture all relevant motion activity was a non-biased error, the inclusiveness problem is consequential. Because the study was designed to compare over time the filing and grant rate of Rule 12(b)(6) motions, the size of the effect of the Court’s cases turns on the amount of activity found. Second, even if concerns are set aside that the collected data may be incomplete, it misreads of the FJC’s findings to conclude that the Court’s decisions are having no effect on dismissal practice. The FJC found that after Iqbal, a plaintiff is twice as likely to face a motion to dismiss. This sizeable increase in rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades and means, among other consequences, added costs for plaintiffs who have to defend more frequently against these motions. The data regarding orders resolving dismissal motions even more dramatically shows the consequential impacts of the Court’s cases. There were more orders granting dismissal with and without leave to amend, and for every case category examined. Moreover, the data show that after Iqbal it was much more likely that a motion to dismiss would be granted with leave to amend (as compared to being denied) both overall and in the three largest case categories examined (Civil Rights, Financial Instruments and Other). Employment Discrimination, Contract and Torts all show a trend of increasing grant rates. In sum, in every case type studied there was a higher likelihood after Iqbal that a motion to dismiss would be granted. Third, because of inherent limitations in doing empirical work of this nature, the cases may be having effects that the FJC researchers were unable to detect. Comparing how many motions were filed and granted pre-Twombly to post-Iqbal cannot tell us whether the Court’s cases are deterring some claims from being brought, whether they have increased dismissals of complaints on factual sufficiency grounds, or how many meritorious cases have been dismissed as a result of the Court’s stricter pleading filter. Ultimately, perhaps the most important lesson to take away from this last assessment of the FJC’s report is that empirical study cannot resolve all of the policy questions that Twombly and Iqbal raise.

For links to the FJC study, see our earlier coverage here.

--A

August 4, 2011 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Thursday, July 28, 2011

Ninth Circuit Minces No Words on Supreme Court’s Pleading Jurisprudence

Judge Fletcher of the Ninth Circuit recently upheld a pro se prisoner’s complaint for supervisory liability for deliberate indifference to the dangers of violent attack in county jail.  Starr v. Baca, 2011 WL 2988827 (9th Cir. July 25, 2011).  

The court traced the history of notice pleading from 1938, and then continued:

In several recent cases, without benefit of statute, the Supreme Court has applied what appears to be higher pleading standard under Rule 8(a) [citing Dura Pharmaceuticals, Twombly, and Iqbal].  . . . In two cases decided during roughly the same period, the Court appears to have applied the original, more lenient version of Rule 8(a) [citing Swiekiewicz and Erickson]. . . .

The juxtaposition of Swierkiewicz and Erickson, on the one hand, and Dura, Twombly, and Iqbal, on the other, is perplexing. Even though the Court stated in all five cases that it was applying Rule 8(a), it is hard to avoid the conclusion that, in fact, the Court applied a higher pleading standard in Dura, Twombly and Iqbal.

But whatever the difference between these cases, we can at least state the following two principles common to all of them. First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation. . . .

Viewed in the light of all of the Supreme Court's recent cases, we hold that the allegations of Starr's complaint satisfy the standard of Rule 8(a). We do not so hold merely because Starr's complaint, like the complaint in Erickson, alleges deliberate indifference in violation of the Eighth and Fourteenth Amendments. Rather, we so hold because his complaint complies with the two principles just stated.

Judge Trott, relying primarily on Iqbal, dissented.

July 28, 2011 in Federal Rules of Civil Procedure, Recent Decisions, Twombly/Iqbal | Permalink | Comments (0)

Friday, July 22, 2011

Tennessee Supreme Court Declines to Adopt “Plausibility” Pleading Standard

            Yesterday, the Supreme Court of Tennessee refused to adopt Twombly and Iqbal for Tennessee state court pleading, and upheld an amended complaint for retaliatory discharge against a motion to dismiss for failure to state a claim.  Webb v. Nashville Area Habitat for Humanity, Inc., 2011 WL 2905584 (Tenn. No. M2009-01552, July 21, 2011).    

            After reviewing much of the law review literature on Twombly and Iqbal, the court concluded:

In summary, it must be remembered that we are addressing the standard in assessing the sufficiency of a single document filed at the very beginning of a case—the complaint. Our motion-to-dismiss jurisprudence reflects the principle that this stage of the proceedings is particularly ill-suited for an evaluation of the likelihood of success on the merits or of the weight of the facts pleaded, or as a docket-clearing mechanism. Rule 8.01 has not been amended and still only requires “(1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief the pleader seeks.” We decline to reinterpret Rule 8 to require a pleader to demonstrate “plausibility” and continue to adhere to the well established standards set forth in section 1 of this opinion [which cited Tennessee’s policy of “liberal notice pleading” and its adherence to the “no set of facts” standard].

 --PHM

July 22, 2011 in Recent Decisions, Twombly/Iqbal | Permalink | Comments (2)

Monday, July 11, 2011

Thoughts on the Federal Judiciary Committee’s study of 12(b)(6) motions after Iqbal

            As most of you know, the FJC released its study comparing 12(b)(6) motions in 2006 and 2010 in March 2011.  Overall, the study takes the view that the empirical effect of Iqbal has been modest.  As I mentioned in a previous post, some are emphasizing the finding that the FJC found no increase in the rate of grants of motions without leave to amend

            I have an updated quantitative study coming out in the University of Richmond Law Review in the fall.  My study concludes that Iqbal has had a significant effect not only on the rate of granting 12(b)(6) motions with leave to amend (a finding shared by the FJC), but also without leave to amend.  Another finding of my updated study is that a case is 1.74 times more likely to be entirely dismissed upon the granting of a 12(b)(6) motion under Iqbal than under Conley.  The FJC reached a different result on a similar question.     

            Richmond accepted this article before the FJC results came out, and I am reworking it over the summer to incorporate a review of the FJC results and a comparison with my own.  The draft of the Richmond article on my SSRN page does not contain these revisions yet.  I welcome all comments!

            I wanted to limit the length of this post.  Please contact me for a fuller version of these preliminary remarks.             

            1.  Database inclusions and exclusions.  Here are the major differences between the FJC's database and the database for my updated study:

Table 1

FJC Study and Hatamyar Study Database Parameters

Database parameter

FJC

Hatamyar

Time period

Two separate six-month periods (January to June 2006 and January to June 2010)

A five-year continuous period (May 22, 2005 to May 18, 2010)

Number of cases

1,922

1,333

Number of U.S. district courts

23

86

Method of retrieval

CM/ECF codes in 23 district courts; translation of PDF documents to text; electronic search.

Electronic searches of Westlaw DCT database.

Pro se plaintiffs, including prisoner and non-prisoner

Not included

Included

12(c) motions

Not included

Included

12(b)(6) motions directed to counterclaims

Not included

Included

Motions decided under Rule 9(b) (fraud) or the PSLRA

Included

Not included

District court reviews of motions decided by magistrates

Not included

Included

MDL cases

Not included

Included

             

            II.  Results.  Table 2 compares the overall results of the two studies, removing all pro se plaintiffs from the calculations for my database so as to approximate the FJC's.

Table 2

Comparison of FJC and Hatamyar Overall Results, Represented Plaintiffs Only

Denied

Granted at least in part

FJC

Hatamyar

FJC

Hatamyar

2006

2010

2006

2010

2006

2010

2006

2010

34%

25%

34%

27%

66%

75%

66%

73%

(239)

(305)

(51)

(46)

(461)

(916)

(98)

(123)

Notes:  The FJC figures include only orders entered in 23 districts from January through June 2006 and January through June 2010.  The Hatamyar figures include orders entered in 86 districts in all of calendar year 2006 and from January through June 2010.   

            Overall, as shown in Table 2, the two studies are close in their overall percentages, when looking at represented plaintiffs only.  First, even when the plaintiff was represented, both studies found a significant increase, from 2006 to 2010, in the percentage of 12(b)(6) motions granted at least in part – from 66% to 75% in the FJC study, and from 66% to 73% in my study.  Second, both studies found that 12(b)(6) motions were denied in 34% of cases in 2006 in which the plaintiff was represented by counsel. 

            A comparison of these results may shed some light on the debate as to whether cases reported in Westlaw fairly represent the “universe” of cases.  My database included only cases reported in Westlaw, and the FJC’s database included cases gleaned as thoroughly as possible from the courts’ electronic filing records.  Yet both my study and the FJC’s found the same percentage – 34% -- of motions denied in 2006.  I think that these results may tend to disprove the hypothesis advanced by the FJC that published cases are more likely to report the grant of a 12(b)(6) motion to dismiss than unpublished cases.  Further, in 2010, the percentage of motions granted at least in part (in cases with represented plaintiffs) was actually higher in the FJC study (75%) than in my study (73%), which was based solely on cases reported in Westlaw.  This is the opposite of what one would predict if grants of 12(b)(6) motions were more likely to be published than denials.    

            The real divergence in the results of the two studies is seen when considering pro se plaintiffs, which the FJC omitted from its study.  This is shown in Table 3.

Table 3

Comparison of FJC and Hatamyar Results:

Both Represented and Pro Se Plaintiffs Included in Hatamyar Results

Denied

Granted at least in part

FJC

Hatamyar

FJC

Hatamyar

2006

2010

2006

2010

2006

2010

2006

2010

34%

25%

27%

20%

66%

75%

73%

80%

(239)

(305)

(58)

(48)

(461)

(916)

(157)

(189)

Notes:  The FJC figures include only orders entered in 23 districts from January through June 2006 and January through June 2010 and include only cases in which the plaintiff was represented by counsel.  The Hatamyar figures include orders entered in 86 districts in all of calendar year 2006 and from January through June 2010, and include both represented and pro se plaintiffs.  

            Finally, I ran some logistic regressions in an attempt to limit my database so as to more closely approximate that of the FJC.  The FJC reports the rulings as an initially binary choice (deny vs. grant at least in part), so I recoded the rulings in my database to either “denied” or “granted at least in part.”  In addition, I limited the database, as did the FJC, to cases in which the plaintiff was represented by counsel and that were decided by a district court judge. 

            First, I used all the cases in my database from 2005 to 2010, except as otherwise limited above.  The results indicate that even taking out the pro se cases, the odds of a court granting a 12(b)(6) motion, at least in part, as compared to denying the motion, were expected to be 1.79 times greater under Iqbal than under Conley (p = 0.002), all other variables held constant.

            Second, I used only the cases in my database from 2006 (Jan to Dec) and from 2010 (Jan to May 18), and otherwise limited as described above (no pro se, no magistrate judges).  Here, the results indicate that even leaving out the pro se cases, the odds of a court granting a 12(b)(6) motion, at least in part, as compared to denying the motion, were expected to be 1.92 times greater in 2010 than in 2006 (p = 0.013), all other variables held constant. 

 

July 11, 2011 in Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (2)

Tuesday, July 5, 2011

Kochan On Iqbal And The Word "Conclusory"

Professor Donald Kochan (Chapman University) has posted on SSRN a draft of his article, While Effusive, 'Conclusory' is Still Quite Elusive: The Story of a Word, Iqbal, and a Perplexing Lexical Inquiry of Supreme Importance, which is forthcoming in the University of Pittsburgh Law Review.  Here’s the abstract:

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July 5, 2011 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Monday, June 20, 2011

Noyes on Twombly/Iqbal and Judicial Experience

Professor Henry Noyes (Chapman University) has posted on SSRN a draft of his article, The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience, which is forthcoming in the Villanova Law Review.  Here’s the abstract:

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief...will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation.

--A

June 20, 2011 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Thursday, June 16, 2011

Gidi on Twombly and Iqbal

Proficient in Italian? Now on SSRN is an article by Professor Antonio Gidi (University of Houston), Twombly e Iqbal: Il Ruolo Della Civil Procedure Nello Scontro Politico-Ideologico Della Società Statunitense (Twombly and Iqbal: The Role of Civil Procedure in the Political and Ideological Battle in American Society). It was recently published in Int’l Lis (Int’l Lis 104 (2010) (Italy)). Here’s the abstract:

L’autore indaga le sentenze “Twombly” (2007) e “Iqbal” (2009) della Suprema Corte federale degli Stati Uniti sotto un angolo visuale socio-politico, mettendo in evidenza il pericolo di una loro lettura strettamente tecnico-processuale e storico-comparata.

Con il conoscimento della struttura processual-giudiziaria e anche della sua complessità sociale e politica dell’ordinamento statunitense, si puó mettere in risalto da un lato, la prevedibilità delle due sentenze “Twombly” e “Iqbal” nel quadro politico attuale degli Stati Uniti e dall’altro, le significative e preoccupanti conseguenze del nuovo orientamento della suprema giurisprudenza federale statunitense sulla tutela, nel processo, delle parti meno abbienti e socialmente più deboli.

The author analyses the “Twombly” (2007) and “Iqbal” (2009) decisions from a socio-political perspective, highlighting the danger of a merely technical-procedural and historical-comparative analysis.

Only an in-depth knowledge of U. S. procedural and judiciary system as well as of its social and political complexity, highlights on the one hand, the foreseeability of the “Twombly” and “Iqbal” decisions in the present U. S. political situation and on the other hand, the meaningful and worrisome consequences of the U. S. Supreme Court’s new trend on the judicial protection of the poor and the weak.

--A 

June 16, 2011 in International/Comparative Law, Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)

Thursday, May 12, 2011

Benham on Twombly/Iqbal and Rule 60(b)

Professor Dustin Benham (Texas Tech) has posted on SSRN a draft of his article, Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery, which is forthcoming in the SMU Law Review. Here’s the abstract:

The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.

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May 12, 2011 in Recent Scholarship, Twombly/Iqbal | Permalink | Comments (0)