Saturday, July 3, 2010
The Washington Supreme Court last week declined to apply the "plausibility" pleading standard established by the U.S. Supreme Court. The Washington Court in McCurry v. Chevy Chase Bank ruled that the heightened pleading standard under the Supreme Court's decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal did not apply to Washington State practice. We most recently posted on the plausibility standard under Twombly and Iqbal here.
The Washington Court declined to apply the heightened federal standard to state practice, it wrote, because it lacked any data going to the policy reasons why it should change the pleading standard. And in any event, rules changes are not for the court--they are for the rule-making process (citing Justice Stevens's dissent in Twombly.) The Washington Court:
The new Fed. R. Civ. P. 12(b)(6) standard [under Twombly and Iqbal] effectively reads "plausible" into the rule, as follows: "failure to state a [plausible] claim upon which relief can be granted." This adds a determination of the likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law does provide a remedy for the conduct alleged by the plaintiff, if that judge does not believe it is plausible the claim will ultimately succeed.
The Supreme Court's plausibility standard is predicated on policy determinations specific to the federal courts. . . . Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. . . .
Currently this court lacks the type of facts and figures (specific to the Washington trial courts) that were presented to, and persuaded, the United States Supreme Court to alter its interpretation of Fed. R. Civ. P. 12(b)(6). . . .
Even if such facts and figures had been presented, this court would be hesitant to effectively rewrite [Washington Civil Rule] 12(b)(6) based on policy considerations. The appropriate forum for revising the Washington rules is the rule-making process. This process permits policy considerations to be raised, studied, and argued in the legal community and the community at large.
Op., at 5-7 (citations and footnotes omitted).