Friday, March 30, 2007

No really, short and plain is enough

There are many reasons a plaintiff's pleading might contain detailed factual allegations and be organized by the elements of the relevant legal theories.  But of course, it doesn't have to do either. Or does it? Fairly recently, the Seventh Circuit provided two concise and helpful descriptions of what is, and what is not, required:

It is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate.  A full narrative is unnecessary. Kolupa v. Roselle Park Dist., 438 F.3d 713, 714 (2006).

This treatment went wrong at the first step: the belief that complaints must lay out facts corresponding to every “element” of a legal theory. That is a code-pleading approach, which the Federal Rules of Civil Procedure reject. One pleads “claims” (which is to say, grievances) rather than legal theories and factual specifics.  The Supreme Court drove the point home in Swierkiewicz v. Sorema N.A., holding that plaintiffs need not allege either the factual or legal “elements” of a prima facie case under the employment-discrimination laws. That conclusion is equally applicable to every other federal claim. It is why “[a]ny district judge (for that matter, any defendant) tempted to write ‘this complaint is deficient because it does not contain...’ should stop and think: What rule of law requires a complaint to contain that allegation?”  It is also why “[a]ny decision declaring ‘this complaint is deficient because it does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed.R.Civ.P. 9(b).” *** Simpson's grievance was set out clearly enough to put the defendants on notice; no more is required. Simpson v. Nickel, 450 F.3d 303 (2006). 

Although these are two of the more recent and forceful descriptions of the pleading obligation, the principles they contain were stated often before 2003, when Professor Christopher Fairman wrote:

Notwithstanding its foundation in the Federal Rules and repeated Supreme Court imprimatur, notice pleading is a myth. From antitrust to environmental litigation, conspiracy to copyright, substance specific areas of law are riddled with requirements of particularized fact-based pleading. To be sure, federal courts recite the mantra of notice pleading with amazing regularity. However, their rhetoric does not match the reality of federal pleading practice. Sometimes subtle, other times overt, federal courts in every circuit impose non-Rule-based heightened pleading in direct contravention of notice pleading doctrine. The Myth of Notice Pleading 45 Ariz. L. Rev. 987 (2003).

Is notice pleading a myth?


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Having spent much time recently defending my four-letter-word scholarship, I can’t resist the opportunity to return to the comfort and relative obscurity of federal pleading practice and another four-letter-word—myth. The recent cases Professor Ryan posts are excellent examples of what the pleading standard under Rule 8 should be post-Leatherman and Sweirkiewicz in all cases save fraud or mistake. The Seventh Circuit didn’t even need to be hit over the head twice to re-embrace notice pleading. They started renouncing the error of their ways after Leatherman and continue to write the best reminders of this fact as the two case excerpts demonstrate. But when you look at what district courts (and the rest of the circuits) actually require of plaintiffs, many courts just don’t seem to get the message. Indeed, Judge Easterbrook still has to school the two district court judges in Kolupa and Simpson on the appropriate standard after dismissing the complaints on heightened pleading grounds in two civil rights cases! Don’t forget the Supremes are still working on Twombly where heightened pleading for a Sherman antitrust claim is at issue as well. The rhetoric of notice pleading is better post-Swierkiewicz, but when you look at what district courts are still requiring of plaintiffs, a true notice pleading regime remains a myth. Apparently, heightened pleading—like those Texas cockroaches—just won’t die.

Posted by: Chris Fairman | Mar 30, 2007 8:46:51 PM

Now with Bell Atlantic, the Court has made the lower pleading standard irrelevant again.

Posted by: ohwilleke | May 22, 2007 3:20:36 PM

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