Monday, September 21, 2009

Undoing Iqbal

Tony Mauro at the National Law Journal reports today that plaintiffs' groups are moving to reverse Ashcroft v. Iqbal, last term's decision holding that complaints must allege more than mere "threadbare recitals of the elements of a cause of action" to survive a motion to dismiss. 

Iqbal involved a former detainee's Bivens claims against former AG John Ashcroft and FBI Director Robert Mueller for constitutional torts while in custody.  (I originally posted on the case here.)  The ruling meant that plaintiffs faced, in effect, a heightened pleading standard, and federal courts dismissed a slew of cases on "Iqbal motions."  In one notable case just this month, however, the Ninth Circuit ruled that a plaintiff sufficiently pleaded facts to sustain an Iqbal motion in a case against former AG Ashcroft for indefinitely detaining him in violation of the federal material witness statute.

Mauro reports that plaintiffs' groups are looking to Congress (in Senator Specter's legislation with the title that speaks for itself, "Notice Pleading Restoration Act of 2009") and the Judicial Conference Advisory Committee on Civil Rules (with the argument that the Court mucked up the FRCP, and the Committee should set them right).

SDS

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