Friday, May 29, 2009
Rick's post last week on the Supreme Court's decision in Ashcroft v. Iqbal highlighted the concern that many civil procedure and employment law scholars have over what Federal Rule of Civil Procedure 8 requires for a complaint to withstand summary judgment. Mark Herrmann and Jim Beck at Drug and Device Law blog have an extensive post, arguing that the decision is simply an affirmation that the holding in Bell Atlantic Corp. v. Twombly (that conclusory statements of the law are not enough) would apply regardless of the substantive law at issue. They also argue that this result makes good policy because a liberal pleading standard, in combination with the liberal discovery rules adopted after that liberal pleading standard, give plaintiffs with frivolous suits nearly carte blanche to go on extremely expensive fishing expeditions.
They agree that Swierkewicz v. Sorema must have been effectively overruled by Twombly, but conclude that this is a positive thing necessary to weed out frivolous cases. On why this standard will not weed out meritorious ones, they write,
The meritorious case, we think, doesn’t have any Twombly problems to start with – except maybe around the edges should the plaintiff overplead.
A meritorious case is not one where the plaintiff pleads that the product was “defectively designed” and leaves it at that.
It's good food for thought.