Tuesday, November 24, 2009
With the introduction last week of a bill in the House to overturn Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly, the movement among plaintiffs' and open-courts advocates to re-set the pleading standard in federal courts is gaining momentum. The American Association for Justice, which is leading a broad coalition in support of the bill, released this statement last week.
A 5-4 Supreme Court ruled last term in Iqbalthat allegations in an ex-detainee's complaint against former AG Ashcroft and FBI Director Mueller for constitutional torts while in custody after 9/11 were too conclusory to withstand a motion to dismiss. The Court, applying its new pleading principles set in Twombley, ruled that Iqbal had to plead more than "bare assertions amount[ing] to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim"--that he had to plead a "plausible" claim for relief that the courts could evaluate based on "judicial experience and common sense."
The standards effectively heightened the 50-year-old notice pleading standard set in Conley v. Gibson. That case held that a complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
Soon after Iqbal came down last spring, defendants' "Iqbal motions" proliferated in federal court, and numerous complaints were dismissed for failure to meet the new heightened pleading standard.
This past summer, Senator Specter introduced legislation (aptly titled the "Notice Pleading Restoration Act") to re-set the pleading standard at the old level under Conley v. Gibson. The House Judiciary Committee held a hearing last month here. And most recently--just last week--Rep. Jerrold Nadler introduced legislation (the "Open Access to Courts Act") in the House. Unlike Specter's bill, which sets the standard as that "set forth . . . in Conley v. Gibson," Nadler's bill includes specific language from Conley v. Gibson:
A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.
The American Association for Justice coalition last month wrote to the Senate Judiciary Committee couching its claims in constitutional terms:
The new standards substantially hamper access to the courts for people who are harmed by illegal conduct, undermine the fundamental right to a jury trial, and infringe the rights of civil plaintiffs to due process of law, fundamental fairness and their day in court.