Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits, after two recent Supreme Court decisions effectively upended longstanding precedent.
Sen. Arlen Specter (D-Pa.) filed legislation Wednesday designed to return the standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly. That case and another — Ashcroft v. Iqbal from the most recent term — have raised the standard that pleaders must meet to avoid having their cases quickly tossed.
Specter, in remarks prepared for the Senate floor, accused the Court’s majorities of making an end run around precedent with the two recent cases.
“The effect of the Court’s actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries,” Specter said. “I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants.”
At issue is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include “a short and plain statement of the claim showing that the pleader is entitled to relief,” while Rule 12 allows for the dismissal of complaints that are vague or that fail to state a claim. Under Iqbal, a 5-4 decision written by Justice Anthony Kennedy, many courts are now requiring more-specific facts that, plaintiffs’ lawyers say, aren’t often available until discovery.
Specter’s bill (pdf) directs federal courts to interpret the rules as the Supreme Court did in a much earlier decision, Conley v. Gibson (1957). The bill falls within the jurisdiction of the Senate Judiciary Committee and, if considered, would likely be a lightning rod for debate among plaintiffs’ lawyers, consumer groups, and businesses.
Quite frankly, I agree with the proposed bill simply because the recent Supreme Court decisions seemingly make it more difficult for pro se litigants to get into federal court. And more importantly, it deprive a plaintiff of the opportunity to come to a federal forum unless all facts supporting the claim are present on the face of the complaint. That might be true for some litigations but what is not true is the fact that some litigation involve claims that require discovery in order to be properly pleaded. With all that said, the less stricter pleading requirement should stand; otherwise, there will be other claims alleging denial of right of access to the courts, which, as we all know, is a "constitutional" mandated right of all the people.
Posted by: Mark Crenshaw, Esq. | January 18, 2010 at 06:21 PM
While I don't think the bill is a good idea, leaving out 12(c) motions makes at least some sense. 12(b)(6) and 12(e) motions are typically filed earlier in a case than 12(c) motions for judgment on the pleadings. As drafted the bill would restore the more lenient standard to the early motions but I think Twombly/Iqbal would still apply to 12(c) motions. At the outset of a case a plaintiff might have an argument that he or she needs at least some discovery to get more specific facts, and will amend later to plead those, but that argument would weaken fast as a case went on. Personally, I don't think it is too much to ask that a plaintiff wait to file in the first place until he or she already has the more specific facts, but this reading of the bill would at least leave the tougher standard applicable to 12(c) motions. And would mean that Specter is not necessarily a *complete* knucklehead.
Posted by: Account Deleted | July 25, 2009 at 05:17 PM
Rule 12(c) motions are apparently excluded. Specter is apparently a complete knucklehead.
Posted by: Brian | July 25, 2009 at 03:56 PM
Could it be that Roberts and Alito planned this destruction of the rights to court all just to protect the neocons such as Yoo, Judge Bybee, Rumfeld, etc. ? The Right has long feared and hated Bivens so when this opportunity presented itself, just as they do with a abortion case, why wouldn't those that have ignored precedents they swore to honor, take advantage of it ?
Too cynical, too political ? I wish it was a different time but it is not.
Posted by: Jim Dandy | July 24, 2009 at 11:26 AM
Hmmmm, curious proposal but seems to me that reversing the Iqbal decision will only open the door to Bivens-type lawsuits by Gitmo detainees against the US government.
Posted by: Cindy Apfel | July 23, 2009 at 08:39 PM
Shouldn't the legislation read "12(c)" (judgment on the pleadings) not "12(e)" (more for more definite statement)?
Posted by: WRW | July 23, 2009 at 05:38 PM