Twombly: Heightened Federal Pleading Requirement?

Since Marbury v. Madison, Federal Court practice has always been complex and difficult-the litigator walks a tightrope balancing procedural pitfalls under the guise of due process and substantial energy commitment with clients' cost sensitivities in an arena of tight time constraints in contrast to its exhaustive practice requirements. Between a judge's unique procedures, local rules and the federal rules (let alone appellate rules and circuit rules), a litigator's need for predictability and certainty can often be undermined by the subjective nature attendant to the Court's undefined yet nonetheless most important expectations if not predilections. Not only do these oft-conflicting factors seem to take precedence over the "merits" and are obstacles for even the most experienced, but, on top, there is Rule 11 and §1927's admonitions toeing the undercurrent.

No more is litigating in Federal Court a herculean task than for an action's initiator, the prosecutor or plaintiff. However likely successful the initiator should be, the Court's culture requires discretion in only bringing the most worthy cases to draw from its resources (or risk "push-back," sometimes in its unexpectedly most aggressive form).

Always at the crossroads, is the private, for-profit, plaintiff's contingent fee consumer attorney involved in complex civil litigation.

Perhaps this, never-expressed understanding (sympathy) led the nation's highest court in Conley to enable a complaint to survive at the lowest standard. That is, for decades, until Twombly.

We learned in law school that many (including our own) state courts' require "fact pleading" while the federal court simply requires "notice pleading." That is, a state complaint must contain detail while a federal complaint need only apprise defendants of the action's bare bones. This is confirmed by F.R.C.P. 8 which merely states that "a complaint must contain... a short and plain statement of the claim showing that the pleader is entitled to relief..." Consistent with notice pleading and Rule 8's dictate, even an action alleging fraud should survive if the plaintiff merely states "with particularity the circumstances constituting [the] fraud ..." F.R.C.P. 9.

In 1957, Conley v. Gibson was adjudicated by the United States Supreme Court detailing that all the Rules' require of a plaintiff is that the claim give the defendant fair notice upon which it rests.

Such simplified 'notice pleading' is made possible by the liberal opportunity for discovery and other pretrial procedures... The federal rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive of the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.

In delivering the Opinion of the Court, Justice Black notes Rule 8(f)'s mandate that "all pleadings shall be so construed as to do substantial justice."

Thus, in deciding a Motion to Dismiss claiming insufficient specificity, Conley required the movant prove "beyond doubt" that the plaintiff can prove "no set of facts" in support which would otherwise entitle the relief requested. In fact, a Plaintiff need not plead any causes of action (merely facts with request for relief).

From afar, it would seem only the barest of pro se complaints could be dismissed for non-specificity even when alleging fraud, especially considering Rule 15's mandate that district courts liberally grant leave for amended, curative pleadings ("The court should freely give leave when justice so requires.").

While one's education may leave the recent law school graduate with a sense of ease in pleading in federal court, the opposite was and still is true.

In practice, pre-Twombly motions to dismiss were often granted at the trial court for non-specificity for a variety of reasons including the complaint only containing bare legal conclusions, conclusory statements, overbroad generalizations, or even just plain being drafted inartfully (i.e., one jurist dismissing a complaint because the time honored legalese, "and/or" was inherently self-contradictory). Over time, the complaint, a device thought merely to initiate, began rather to govern the action.

For complaints' pleading fraud, who, what, where, when, how and why were required to be detailed including the he said/she said's that was thought otherwise to be the subject of discovery. Discovery objections for requests outside the scope of the complaint became routinely sustained. Fourth, Fifth and Sixth Amended Complaints began to appear with more frequency, as well as motions for leave to amend to include additional facts adduced during discovery being filed on the eve of trial to avoid an objection on anticipated testimony not pleaded.

Since Conley, every seasoned litigator grew accustomed to the true and acceptable complaint that federal courts' favor.

Meanwhile, other exponentially growing procedural requirements made litigation not only more burdensome but cost prohibitive except in the most valuable matters per our recent era of the decline in the amount of trials and increase in the amount of dispositive motions with pre-litigation settlement efforts not worthwhile. With even a simple action's necessary time expense along with the growing likelihood, whether by jury or judge, that a civil prosecution would end in a pyrrhic victory, volume vis-à-vis mass torts, class actions, or even just "one-trick ponies" (i.e., Lemon Law, Fair Credit Reporting Act, Fair Debt Collection Practices Act, etc.) became vogue perhaps to off-set routine litigation's otherwise cost prohibition.

With volume, defendants' cries of frivolity and, pertinently, even the smallest matter's attorney's fees began skyrocketing. Despite an already exacting and demanding jurisdiction, federal court likewise began to see volume's attendant imperfections with the court reacting, among other ways, by raising diversity jurisdiction's monetary minimum (from $50,000 to $75,000).

In response, the legal profession became more a business in the wake of litigation's growing overhead, necessary merely to attend to a simple matter's merits. Pushing back, it was this confluence on both sides that the United States Supreme Court specifically expressed as giving rise to Twombly.

A complex antitrust class action, Twombly reconciled but did not overrule Conley instead holding that its "new" plausibility standard "does not impose a probability requirement at the pleading stage; it simply calls for enough facts to raise a reasonable expectation that discovery will provide evidence" that the facts set forth in the complaint will enable Plaintiff a right to relief. Plausibility is to be objectively, mechanically determined (not subjectively-when adding up the averments, could the requested relief be awarded).

However, in direct contrast, after Twombly the United States Supreme Court applied the Conley standard in vacating the district court's dismissal of a civil rights complaint by a prisoner-plaintiff who averred harm as a result of the defendant-prison's discontinuance of his Hepatitis C treatment. Erickson v. Pardus, 147 S.Ct. 2197 (2007).

In reconciling Twombly and Erickson with Conley, the Third Circuit held that Twombly had not altered the pleading standard. Phillips v. County of Allegheny, 515 F.3d 224 (3d. Cir. 2008). Echoing Conley, the Third Circuit clearly held that Twombly does not require "detailed factual allegations," but, per Rule 8, "only a short and plain statement of the claim showing that the pleader is entitled to relief in order to give the Defendant a fair notice of what the claim is and the grounds upon which it rests." In striking a balance, Phillips recognized that the "plausibility" analysis of Twombly is contextual: the more complicated (and thus, expensive to defend) a cause of action (such as an antitrust class action, as in Twombly), the more a Plaintiff must "show" in terms of facts to "nudge" a claim "across the lines from conceivable [i.e., no set of facts] to plausible." On the contrary, simplistic even federal causes such as Section 1983 (civil rights), breach of contract or garden variety negligence actions should merely apply the Conley analysis.

Maybe most important for litigators grappling with this new standard, the Supreme Court and Third Circuit directed a Plaintiff should generally be provided an opportunity to file an amended complaint if it appears that the deficiencies can be corrected, even if not requested (many a district court has been reversed on appeal for failing to sua sponte grant leave when not requested).

Thus, courts should not dismiss a complaint for failure to state a claim if it "contain[s] either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory." Under this liberal pleading standard, courts should general only dismiss a complaint that is merely deficient, with prejudice, if amendment would be futile or unfairly prejudicial.

Like the recent law school graduate, however, do not be fooled: Twombly, despite Erickson and Phillips, has changed our practice, even if just to grant a foundation for a displeased jurist's predilections. With Twombly, the tug-of-war between the routine federal litigator (trying to keep overhead down and filings re profits up) and the district court (time demands necessarily requiring increases in litigation's costs), and the district court (wanting to clear its docket from perceived less valuable matters) and the appellate courts (imbuing a tendency for disposition of all matters on their merits in rejecting litigation as a game and subjectivity in adjudication), intensifies.

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