Civil Procedure & Federal Courts Blog

Wasserman on Iqbal and Procedural Mismatches

Howard Wasserman (Florida International) has posted on SSRN his recent symposium piece, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 Lewis & Clark L. Rev. 157 (2010). Here's the abstract:

Understanding the twin pleading cases of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal from the vantage point of only a few months (or even years) requires as much prediction as explanation. Early confusion is a product of the long-heralded link between substance and procedure. What we are seeing now may be less about Court-imposed changes to procedure as about changes to substantive law and a “mismatch” between new substance and the old procedure of the Federal Rules. Much of the current business of federal courts involves constitutional litigation under 42 U.S.C. § 1983 and Bivens, a species of civil action unheard of when the Federal Rules and the system of notice pleading and broad, wide-ranging discovery were created in 1938. That pleading system arguably does not work with such “modern” litigation and Iqbal reflects the Court’s effort to make federal pleading and discovery rules more consistent and more functional with this particularly vulnerable area of new federal substance. Unfortunately, the greater detail demanded by the new pleading rules may be impossible in many civil rights cases, where plaintiffs cannot know or plead essential information with particularity at the outset without the benefit of discovery - discovery that Iqbal stands to deny to plaintiffs who fail to plead with the necessary detail. The predictable result, illustrated by one Ninth Circuit decision just two months after Iqbal, will be a significant decrease in enforcement and vindication of federal constitutional and civil rights. 

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Iqbal and Strange Bedfellows?

The Blog of the Legal Times is reporting an interesting development on the effort to legislatively overrule the Supreme Court's pleading decisions in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly (see earlier coverage here, here, here, here, and here). The story Christian Group Joins Campaign on Pleading Standard begins: 

"The conservative Alliance Defense Fund is lining up in opposition to a pair of U.S. Supreme Court decisions that changed the standard for filing most civil lawsuits — a move that aligns the Christian litigation group with some unlikely allies."

For a copy of the Alliance Defense Fund's letter to Senate Judiciary Committee Chair Patrick Leahy, see here.

(Hat Tip: How Appealing)

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Pleading Standards and Bernie Madoff

The SEC's civil action against defendants allegedly involved in the Madoff ponzi scheme ran up against federal pleading standards in a recent decision from the Southern District of New York. The case is SEC v. Cohmad Securities Corp., No. 09-CV-5680, and docket information is available here. Judge Stanton's decision is at 2010 WL 363844 or 2010 U.S. Dist. LEXIS 8597. Here are some excerpts:

"[N]owhere does the complaint allege any fact that would have put defendants on notice of Madoff's fraud. Rather, the complaint supports the reasonable inference that Madoff fooled the defendants as he did individual investors, financial institutions, and regulators.

. . .

[T]he SEC has failed to allege facts giving rise to a plausible inference of the Cohns' or Jaffe's fraudulent intent, and the securities fraud claims against them are dismissed. Since the SEC has failed to plead the Cohns' or Jaffe's fraudulent intent (and it does not argue that Madoff's intent can be imputed to Cohmad), the securities fraud claims against Cohmad are dismissed as well."

The SEC was granted leave to replead.

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(Hat Tip: Paul Stancil)

Hartnett on Responding to Twombly and Iqbal

Professor Edward Hartnett (Seton Hall) has posted on SSRN his essay Responding to Twombly and Iqbal: Where Do We Go from Here?, to be published later this month in the Iowa Law Review Bulletin. Here's the abstract:

As reflected in the title of their article, Inventing Tests, Destabilizing Systems, Professors Clermont and Yeazell contend that the Supreme Court in Twombly and Iqbal invented a “new and foggy test” for judging the sufficiency of a complaint and “have destabilized the entire system of litigation.” As they see it, the Court’s approach is “thoroughly new,” and the Court “effectively creat[ed] a civil procedure hitherto foreign to our fundamental procedural principles.”

Elsewhere, I have offered a more-optimistic take on these cases, emphasizing the connections these decisions have with prior law and suggesting ways in which they can be tamed. See Taming Twombly—Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010). Rather than rehash those arguments here, I instead take up Professors Clermont and Yeazell’s challenging question, “Where Do We Go from Here?” and address several of the proposals made to respond to Twombly and Iqbal by statute or rule amendment.

I also offer my own proposal, which focuses on the core issue at stake in debates about Twombly and Iqbal: should a plaintiff be able to obtain discovery in an effort to uncover evidence without which he or she cannot prevail? My proposal has something to offer plaintiffs, defendants, and the judicial system. I believe it represents an improvement over the current law and better than other proposed legislative and rulemaking responses to Twombly and Iqbal. Surely it could be improved by the perspectives of others in the academy, on the bench, or at the bar. Nevertheless, in deciding where we go from here, stumbling in the right direction is better than standing still or trying to go backwards.

And from the text, here is Professor Hartnett's proposal to amend the Federal Rules of Civil Procedure. He argues for adding the following language to Rule 12:

Rule 12(j): Allegations Likely To Have Evidentiary Support After a Reasonable Opportunity for Discovery

If, on a motion under Rule 12(b)(6) or 12(c) that has not been deferred until trial, the claim sought to be dismissed includes an allegation specifically identified as provided in Rule 11(b)(3) as likely to have evidentiary support after a reasonable opportunity for discovery, the court must either (1) assume the truth of the allegation, or (2) decide whether the allegation is likely to have evidentiary support after a reasonable opportunity for discovery. In deciding whether an allegation is likely to have evidentiary support after a reasonable opportunity for discovery, the court must consider the parties‘ access to evidence in the absence of discovery and state on the record the reason for its decision.

If the court decides that the allegation is likely to have evidentiary support after a reasonable opportunity for discovery, it must allow for that discovery, under the standards of Rule 26, and deny the motion to dismiss. If the court decides that the allegation is not likely to have evidentiary support after a reasonable opportunity for discovery, the court must treat the motion as one for summary judgment under Rule 56, and provide all parties a reasonable opportunity to present all the material that is pertinent to the motion.

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Spencer on Iqbal and Restrictive Procedure

Professor Benjamin Spencer (Washington & Lee University School of Law) posted "Iqbal and the Slide Toward Restrictive Procedure" on SSRN.  It will be published in the Lewis & Clark Law Review.

The abstract states:

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.

~clf

Claim Against Donald Rumsfeld Survives Motion to Dismiss (and Iqbal)

Last week Judge Wayne Andersen of the U.S. District Court for the Northern District of Illinois denied former Secretary of Defense Donald Rumsfeld's motion to dismiss a lawsuit that was filed against him by two contractors who allege they were detained and mistreated while in Iraq. The case is Vance v. Rumsfeld, 1:06-cv-06964 (N.D Ill.), and Judge Andersen's opinion can be found here (courtesy of the Legal Times' Blog, which has additional coverage here). The docket is available via Justia or Pacer.

As for last Term's Supreme Court's decision in Ashcroft v. Iqbal, Judge Andersen wrote:

"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."

Relying on the Ninth Circuit's decision in Al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), Judge Andersen concluded that "the allegations of Rumsfeld's personal involvement in unconstitutional activity are sufficiently detailed to raise the right to relief above the speculative level and would survive a motion to dismiss."

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Lewis & Clark Law Review Symposium "Pondering Iqbal"

The Lewis & Clark Law Review Symposium "Pondering Iqbal" is now available on-line here. Contributions include:

Edward Brunet, The Substantive Origins of “Plausible Pleadings”: An Introduction to the Symposium on Ashcroft v. Iqbal, 14 Lewis & Clark L. Rev. 1 (2010) 

Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark L. Rev. 15 (2010)

Scott Dodson, Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43 (2010)

Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65 (2010) 

Hillel Y. Levin, Iqbal, Twombly, and the Lessons of the Celotex Trilogy, 14 Lewis & Clark L. Rev. 143 (2010)

Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 Lewis & Clark L. Rev. 157 (2010)

A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010) 

Tung Yin, “I Do Not Think [Implausible] Means What You Think It Means”: Iqbal v. Ashcroft and Judicial Vouching for Government Officials, 14 Lewis & Clark L. Rev. 203 (2010)

Michael C. Dorf, Iqbal and Bad Apples, 14 Lewis & Clark L. Rev. 217 (2010) 

Juliet P. Stumpf, The Implausible Alien: Iqbal and the Influence of Immigration Law, 14 Lewis & Clark L. Rev. 231 (2010) 

Stephen I. Vladeck, National Security and Bivens After Iqbal, 14 Lewis & Clark L. Rev. 255 (2010) 

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(Hat Tip: John Parry)

Cromer Young on After Iqbal

Professor Julie D. Cromer Young (Thomas Jefferson School of Law) has posted "Centering the Pleading Pendulum After Iqbal" on SSRN.  

The abstract states:

In 2007, the Supreme Court in Bell Atlantic v. Twombly introduced the concept of plausibility pleading to federal courts and the Federal Rules of Civil Procedure. Under this concept, in order for a complaint to survive a motion to dismiss, the plaintiff had to plead enough facts to make the cause of action plausible to the court. This was a marked departure in the interpretation of Rule 8's "short and plain statement of the claim" from the standard enunciated fifty years before by the Court in Conley v. Gibson. The Conley Court held that to succeed in a motion to dismiss, a defendant must establish that the plaintiff could establish no set of facts that would support plaintiff's allegations after she had pled enough information to put the defendant on notice of the claims against him. Courts and scholars questioned and debated the applicability of plausibility pleading, but in May 2009 the Supreme Court confirmed it in the 5-4 decision in Ashcroft v. Iqbal, causing the U.S. Senate and House to respond with calls to bring back Conley's "no set of facts" language as the required interpretation.

Iqbal forces the federal court system to revisit the debate that it had at the introduction of the Federal Rules more than sixty years ago: Does notice pleading allow a plaintiff too much entry into the court system without facts sufficient to support a cause of action? Before Twombly, the United States was alone among nations in requiring no factual allegations from civil plaintiffs, inviting foreign litigants to seek the U.S. out as a forum. After Iqbal, however, the United States requires a level of specificity in pleadings not even required by nations adhering to systems of civil (as opposed to common-law) adjudication. By attempting to overcorrect the problems inherent in notice pleading, the Supreme Court has created a standard unworkable with the rest of the Federal Rules of Civil Procedure. An out-and-out return to notice pleading, however, may not be the answer.

This Article will examine the history of pleading in the United States and provide an in-depth analysis of the years since Twombly to see whether plausibility pleading allowed plaintiffs the opportunity to be heard in the U.S. federal court system. It considers different Federal Rules of Civil Procedure directly framed around the notice pleadings standard to question any change in the application of those rules. The Article also discusses four types of cases that may have relied on notice pleading in the past: employment discrimination, intellectual property, securities fraud, and pro se litigation. It does so to examine whether plausibility pleading lets plaintiffs effectively frame their claims. Finally, the Article proposes an amendment to Rule 8 and other Federal Rules that avoids a knee-jerk reaction to the problems inherent in plausibility pleading but brings the U.S. federal courts more closely in line with their international common-law counterparts.

~clf

Spencer on Iqbal and Restrictive Procedure

Prof. Benjamin Spencer (Washington & Lee) has posted on SSRN his forthcoming piece, Iqbal and the Slide Toward Restrictive Procedure, part of the Lewis & Clark Law Review's symposium on Ashcroft v. Iqbal. Here's the abstract:

Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscoresthe substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.

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Upcoming Conference on Iqbal (Mar. 26)

As covered earlier here, the Penn State Law Review is sponsoring a symposium entitled: "Reflections on Iqbal: Discerning Its Rule, Grappling with Its Implications." It's on Friday, March 26, 2010 at Penn State's Carlisle campus (simulcast to the University Park campus). If you're interested in attending or participating, see the following announcement from Penn State Prof. Nancy Welsh:

For those of you who may be considering coming to Penn State's Iqbal symposium on March 26, 2010, please be aware that you will need to register by March 23.  The event is free.  You can find the registration form and additional details regarding the symposium at http://law.psu.edu/academics/journals/law_review/iqbal_symposium. In addition, Penn State Law Review has created a special portal on its Web site at http://www.pennstatelawreview.org/.  

I am very pleased to announce that the Honorable Lee H. Rosenthal, U.S. District Court Judge for the Southern District of Texas, Houston Division, and chair of the Judicial Conference Committee on the Rules of Practice and Procedure, will deliver the symposium's keynote address, joining in conversation with the Honorable D. Brooks Smith of the Third Circuit Court of Appeals. In addition, our panels of presenters have expanded.

The symposium will begin at 8:30 a.m. in Lewis Katz Hall, 333 West South Street, Carlisle, PA and will be simulcast to Lewis Katz Building, University Park, PA. 

I hope you will consider attending and participating, either in person or through your contribution to the Penn State Law Review's Call for Papers.

Thanks.

Nancy Welsh
Professor of Law
Penn State University
Dickinson School of Law

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Penn Law Review Publishes Papers from 2009 AALS Panel

The latest edition of the Penn Law Review features the papers written for the 2009 AALS Panel, "The Changing Face of Federal Civil Pretrial Practice."

The papers are:

Foreword: Procedure as Palimpsest

Catherine T. Struve

 

Comparative Convergences in Pleading Standards

Scott Dodson

 

Taming Twombly, Even After Iqbal

Edward A. Hartnett

 

The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases

Elizabeth M. Schneider

 
RJE

Twombly/Iqbal Stats from the Federal Judicial Center

This is a report from the Federal Judicial Center of data concerning motions to dismiss in the months before and after both Twombly and Iqbal.  The data are subject to some important limitations, such as the fact that it does not distinguish between 12(b)(6) and other Rule 12 motions, and the fact that many cases settle before motions are decided -- settlements that themselves might reflect parties perception of the law.  It also does not include information on whether complaints were dismissed with or without prejudice.

H/T Kevin Clermont

RJE

Eight Months of Iqbal

I've been guest-blogging over at Concurring Opinions, and I have a few posts discussing how courts ought to make sense of federal pleading standards after Ashcroft v. Iqbal, what lower courts are actually doing, and the bills now pending in Congress to legislatively override Iqbal. Here are the links to Part 1, Part 2, and Part 3.   

These posts summarize and build on some of the arguments in my article, The Pleading Problem, 62 Stanford L. Rev. ___ (forthcoming May 2010), the latest draft of which is up on SSRN. Here's the abstract: 

Federal pleading standards are in crisis. The Supreme Court's recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have the potential to upend civil litigation as we know it. What is urgently needed is a theory of pleading that can bring Twombly and Iqbal into alignment with the text of the Federal Rules of Civil Procedure and a half-century worth of Supreme Court precedent, while providing a coherent methodology that preserves access to the courts and allows pleadings to continue to play their appropriate role in the adjudicative process. This article provides that theory. It develops a new paradigm -- plain pleading -- as an alternative to both notice pleading (which the pre-Twombly era was widely understood to endorse) and plausibility pleading (which many read Twombly and Iqbal to endorse). As a functional matter, this new paradigm is largely consistent with notice pleading, but it stands on firmer textual footing and avoids some of the conceptual problems that arise when notice is the exclusive frame of reference. Moreover, it is able to reconcile Twombly and Iqbalwith pre-Twombly authority.

A careful reading of Twombly and Iqbal undermines the conventional wisdom that they require a stricter approach to pleading. First, Twombly and Iqbaldid not overrule the most significant pre-Twombly authorities. The only aspect of prior case law that these decisions set aside was a misunderstood 50-year-old phrase whose real meaning was never called into question. Furthermore, Iqbal's two-step analysis confirms that the problematic plausibility standard employed in Twombly and Iqbalis neither the primary inquiry at the pleadings phase nor a necessary one. The threshold issue is whether a crucial allegation in a complaint may be disregarded as "conclusory"; then and only then does the "plausibility" of an entitlement relief become dispositive. While there remains some uncertainty about what conclusory means, authoritative pre-Twombly sources -- the Federal Rules, their Forms, and Supreme Court decisions that remain good law -- foreclose any definition that would give courts drastic new powers to disregard allegations at the pleadings phase.

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Recent Articles on Twombly/Iqbal

Here are some recent articles on pleading standards under Ashcroft v. Iqbal and Bell Atlantic v. Twombly:

Andrew Blair-Stanek, Twombly Is the Logical Extension of the Mathews v. Eldridge Test to Discovery, 62 Florida L. Rev. 1 (2010) 

Stephen Brown, Reconstructing Pleading: Twombly, Iqbal, and the Limited Role of the Plausibility Inquiry, 43 Akron L. Rev. (forthcoming 2010) 

Stephen Brown, Correlation Plausibility: A Framework for Moving to Fair Pleading in the Post-Twombly and Iqbal World (on SSRN) 

Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 Nebraska L. Rev. 261 (2009) 

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Gender theory and bellwether trials

In a In a recent article in Law 360 on Iqbal and the NuvaRing MDL, I came across the following sentence:

Hopefully this litigation can now proceed through preparation of cases and bellmare trials. (We use bellmare, as the wether is a male goat, and bells were often put on the lead cow.)

I approve!

RJE

Dodson on New Pleadings & Discovery

Professor Scott Dodson (William & Mary School of Law) has posted "New Pleadings, New Discovery" on SSRN.

The abstract states:

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual sufficiency often is a poor proxy for meritlessness. Some plaintiffs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is in the hands of defendants. New Pleading thus screens out these claims even though they may have merit. This article offers a solution to New Pleading's problems of information asymmetry: New Discovery. New Discovery recognizes the need for limited presuit or pre-dismissal discovery to provide plaintiffs the opportunity to gather the facts necessary to comply with New Pleading's strictures. The article presents a normative defense of New Discovery, offers some guiding principles and tools for controlling its scope and cost, and explores how New Discovery might work both under the current discovery scheme and in the context of needed discovery reforms.

~clf

Panel of Interest in New Orleans: "Civil Pleading Standards After Iqbal" (Friday, Jan. 8)

Those traveling to New Orleans this week may be interested in the panel Civil Pleading Standards After Iqbal at the Federalist Society's 12th Annual Faculty Conference. Panelists include:

Prof. Suzanna Sherry, Vanderbilt Law School
Prof. Suja Thomas, University of Illinois College of Law
Prof. Stephen Burbank, University of Pennsylvania Law School
Prof. Adam Steinman, University of Cincinnati College of Law
Moderator: Prof. Robin Effron, Brooklyn Law School

It's happening on Friday, January 8 from 1:30 p.m. - 3:15 p.m. in the Bacchus Room of the Wyndham Riverfront New Orleans. See the conference website for further details.

PENNumbra wraps up Iqbal debate

Professor Burbank has posted his final statement on PENNumbra, bringing the Iqbal debate to a close (at least as far as the Penn Law Review is concerned!)

The full debate is available here.

RJE

New York Times Editorial on Iqbal

Today, the New York Times published this editorial on Iqbal:  "Restoring Access to the Courts."

~clf

More Congressional Activity on Iqbal

While the Senate was wrestling with health care reform last week, the House turned once again to whether and how to legislatively overrule Iqbal. (For coverage of previous hearings in the House and Senate, see here, here, here, and here.)    

On December 16, the House Judiciary Committee's Subcommittee on Courts and Competition Policy held a hearing on H.R. 4115, the "Open Access to the Courts Act of 2009." The Judiciary Committee's website is here, and a video webcast is available here.

Below is the witnesses list and links to their testimony:

Hon. Jerrold Nadler
U.S. House Representatives
8th District, NY

Eric Schnapper
Professor of Law
University of Washington School of Law

Gregory G. Katsas
Director of Financial Regulation Studies
Former Assistant Attorney General, Civil Division
U.S. Department of Justice 

Jonathan L. Rubin
Patton Boggs, LLP
Washington, DC

Joshua P. Davis
Professor Center for Law and Ethics
University of San Francisco School of Law

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