Help with civ pro - pleadings (Rule 8), please!!! Forum

[IzziesGal]

Hey guys,

Can anyone help me get straight the history of pleadings under the FRCP Rule 8?
I am trying to make sense of the Conley - Dioguardi - Swierkiewicz - Twombley - Iqbal progression, and am having trouble sorting out what each case stands for.

What I have:

Dioguardi - reaffirming Conley principle - notice pleading: short and plain statement is sufficient. complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Swierkiewicz - a court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. greater specificity = amend rules.

(I am not seeing a difference between Dioguardi and Swierkiewicz)

Twombley - Claim of wrongful conduct must be plausible. Stricter standard that Conley.

Iqbal - lord knows what this stands for. I think it says: While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. BUT Is it just ltd to gov't officials in discrimination cases?

I reaaally need help. I get PJ/SMJ/venue & supplemental jurisdiction, but for some reason, pleadings just isn't clicking. I appreciate some help!!!

[IzziesGal]

Okay, in case anyone is wondering, this is what looks to be an accurate description of the progression:

Dioguardi - don't have to plead facts, just have to put D on notice so D can plead his defense

Conley v. Gibson - complaint must stand unless even if we assume all facts to be true, there is simply no set of facts which would prove a violation. That claim as matter of law must fail.

Confirmed in Swierkiewicz - ct can dismiss only if clear that no set of facts can be proved consistent with allegations. Even if remote and unlikely, that's not the test

Twombley (2007) and Iqbal (2009) - survive motion to dismiss - complaint must contain sufficient factual matter accepted as true to state a claim to relief that is plausible on its face

[270910]

Twombley and Iqbal explicitly overturned Conley et al. The Twombley + Iqbal standard is that a District Court can dismiss a claim if it feels like it, and nobody will ever know why or be able to appeal.

HTH.

[IzziesGal]

Twombley and Iqbal explicitly overturned Conley et al. The Twombley + Iqbal standard is that a District Court can dismiss a claim if it feels like it, and nobody will ever know why or be able to appeal.

HTH.

Thanks a bunch.
Civ pro midterm in T minus < 24 hours. Good luck to my fellow Boalties!

[A'nold]

Twombley and Iqbal explicitly overturned Conley et al. The Twombley + Iqbal standard is that a District Court can dismiss a claim if it feels like it, and nobody will ever know why or be able to appeal.

HTH.

Thanks a bunch.
Civ pro midterm in T minus < 24 hours. Good luck to my fellow Boalties!

More info: after twombly/Iqbal, courts state that "mere legal conclusions" are not due the presumption of truth, but that facts are. Iqbal goes on to basically tell the courts what to do: go through the pleading, and strike everything that is a "mere legal conclusion" and everything that is left is what can be presumed to be true. So, assuming those facts in the pleading, then instead of conley's "any set of facts" to support, it must be beyond possible, it should be plausible, but doesn't need to be probable.

Yeah but it should also be noted that it is a very hard burden to overcome, almost a rule 9(b) standard now. There have been a rash of 12(b)(6) motions granted since those stupid cases.

Btw- if you do a search you might be able to find a thread I started awhile ago on this subject. Twombly was in the title I believe......but there were some posts about the new pleading requirements and about how notice pleading has kind of gone out the window now.

[kings84_wr]

Thank God my Civ Pro said screw Twombly and just ranted about how much he hated it and then said no one knows what it means, and thats all we were required to know.

[IzziesGal]

Thank God my Civ Pro said screw Twombly and just ranted about how much he hated it and then said no one knows what it means, and thats all we were required to know.

Jealous.

Sounds like my property professor last semester re: RAP.

[Aqualibrium]

I have it on good authority that Iqbal on applies in cases where qualified immunity plays a role...

[Dman]

For our class, our Prof also very much disliked Twombly/Iqbal. He justifies ignoring them by footnote 10 in Twombly referencing the forms. The Forms allow for legal conclusions, such as saying someone is negligent (Form 11). Additionally, his other argument was that Rule 9 shows that the FRCP drafters know how to make a higher pleading standard and it was not in rule 8 intent.

I have looked through some listserves of Civ Pro profs as well. There is a huge debate on what to do with Twombly/Iqbal. A large group are in the "wait and see" stance since no one really knows what it means exactly and on its face goes contrary to the intent of rule 8(a)(2).

Best bet for your exam is to use exactly what your professor stated as there are too many differing approaches to the case.

[kings84_wr]

Thank God my Civ Pro said screw Twombly and just ranted about how much he hated it and then said no one knows what it means, and thats all we were required to know.

I don't know if this is a good thing... It still is the SCOTUS determined pleading standard for rule 8 pleadings.

Oh Yeah, I really should probably learn it Im sure. It just made the Exam way easer, because we didn't have to know anything about it.

My prof was an old school Litigator and I think he really felt like there was no way to teach it.

Our Civ Pro also didn't cover Personal or SJ Jurisdiction or venue, or really any of that, so maybe the teach in the 2nd civ pro class.

[imchuckbass58]

I agree generally with what people have said so far.

I think the key distinction to emphasize is in Conley, etc., courts generally took complaints as plausible on their face, and didn't go into analyses of whether they were plausible or whether a party could support the claims with evidence (which is the purpose of summary judgment.

In Twombly and Iqbal, by contrast, the courts did a certain amount of "weighing of the evidence" and reached summary-judgment-like conclusions about whether the claiming party would be able to prove things (whether a jury could infer an "agreement" from parallel business conduct in Twombly, and whether a jury could infer discrimination by gov't officials from the disproportionate impact of detention policies).

On one hand, neither Twombly or Iqbal alleged an actual agreement/actual discrimination (which was an element of both claims), but basically the court stepped in and said there's no way to infer it indirectly.

Also, I might be wrong on this, but my understanding is that Twombly did not explicitly overrule Conley. In Twombly, the majority opinion tries to make it seem like they're not really departing from Conley, when in reality they are.

Another note, we had a 3rd circuit judge come speak to us about Twombly, and he said he basically hasn't changed how he deals with 12(b)(6) motions - he just kind of ignored it and went on dealing with it how he had before. The impression I've gotten from multiple practicing lawyers is that law professors love getting their panties in a twist about Twombly, but it has had relatively little impact so far in fact.

[270910]

Also, I might be wrong on this, but my understanding is that Twombly did not explicitly overrule Conley. In Twombly, the majority opinion tries to make it seem like they're not really departing from Conley, when in reality they are.

We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language has been questioned, criticized, and explained away long enough. [...] after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard

[imchuckbass58]

Also, I might be wrong on this, but my understanding is that Twombly did not explicitly overrule Conley. In Twombly, the majority opinion tries to make it seem like they're not really departing from Conley, when in reality they are.

We could go on, but there is no need to pile up further citations to show that Conley’s “no set of facts” language has been questioned, criticized, and explained away long enough. [...] after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard

Touche

[A'nold]

Well, Twombly is messed up, regardless, and is a big business favoring law that screws the plaintiff over. *awaits people's certain disagreement*.

[bigcheetah69]

Do you really need to know the historical progression of pleadings for your exam??

[bigcheetah69]

Do you really need to know the historical progression of pleadings for your exam??

The history, in this case, kinda of informs the present, doesn't it?

I mean it's certainly one way to go about it. To me it seems to overcomplicate it. Unless you know your prof will want this sort of case analysis of to Rule 8, I would just become very familiar with the Rule as is and read the applicable E&E sections.

[bigcheetah69]

And maybe the E&E does talk about those cases in it. I had Civ Pro last semester so I'm out of that mode. But my point is unless you know you need an in depth case analysis of Rule 8, you are probably doing lots of extra work.

[bigcheetah69]

Good point. Benefit certainly could be derived from studying the historical progression of rule 8. From my experience, policy is not that important for Civ Pro (compared to Torts/Crim law). If OP's teacher happens to have a question where a policy discussion of Rule 8 is relevant, he/she will certainly get a couple more points. Spending a not insignificant amount of time to gain these possible points is fine if OP has everything else (including other classes) down pat. All I'm saying is it sounded like OP was really struggling with it and stressing over it, which likely is not warranted. Also, it is quite possible his/her time could be better spent elsewhere.

[mikeytwoshoes]

http://www.amazon.com/Students-Federal- ... Descending

Your welcome

[IzziesGal]

And maybe the E&E does talk about those cases in it. I had Civ Pro last semester so I'm out of that mode. But my point is unless you know you need an in depth case analysis of Rule 8, you are probably doing lots of extra work.

Thanks to everyone for the feedback! I am actually shocked to see this thread still alive.

My civ pro professor is big on knowing dissenting/concurring opinions and specific case holdings - he told us specifically which cases would likely show up on the exam, which is why all the fuss about memorizing case holdings and the progression of Rule 8. He likes to do things like "If X fact pattern were decided under Y case, how would it come out?" I can understand all the feedback on it, because it completely threw me for a loop, too. Last semester was all about realizing that cases aren't important at all. Different professors have different preferences, I guess!

Thanks again

[jrs12]

More info: after twombly/Iqbal, courts state that "mere legal conclusions" are not due the presumption of truth, but that facts are. Iqbal goes on to basically tell the courts what to do: go through the pleading, and strike everything that is a "mere legal conclusion" and everything that is left is what can be presumed to be true. So, assuming those facts in the pleading, then instead of conley's "any set of facts" to support, it must be beyond possible, it should be plausible, but doesn't need to be probable.

Just because it's not entitled to the presumption of truth does not mean that it will be struck as a mere legal conclusion. The judge gets to decide what's plausible.

but we at the same time, a pleading that says:
"∆ was negligently driving his car and that caused my injury"
should not be, alone, enough to subject ∏ to suit.

This is an example of a legal conclusion that actually WILL survive 12(b)(6) under current standards, because it's plausible on its face. Negligent driving is not a claim about which a court will be skeptical.

Yeah but it should also be noted that it is a very hard burden to overcome, almost a rule 9(b) standard now. There have been a rash of 12(b)(6) motions granted since those stupid cases.

- The effect of Twombly and Iqbal has been vastly overstated. See, e.g., http://www.uscourts.gov/rules/Motions%2 ... ismiss.pdf; Kendall W. Hannon, Much Ado About Twombly? 83 Notre Dame L. Rev. 1811 (2008)

- It's also untrue that Twombly and Iqbal presented an entirely new standard. Courts have been granting 12(b)(6)s on similar grounds for some time. A few examples: In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003); DM Research v. College of American Pathologists, 170 F.3d 53, 55 (1st Cir. 1999); Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998); Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 101, 1109 (6th Cir. 1995); Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998); Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 870 (8th Cir. 2002); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1155 (9th Cir. 1989); Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 & n.2 (10th Cir. 1989); Oxford Asset Management, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)

- The R9 requirements are entirely distinct from the current R8 requirements. R9 is not a heightened standard; it is a device to ensure that when certain things are being plead, that the appropriate notice is provided to the defendant so she can mount a competent defense. R9 is about what the defendant needs. R8 after Twombly/Iqbal is about what the justice system demands of all complaints.

- The cost of discovery on defendants is astronomical. As a practical matter, the justice system had been broken by the combination of liberal R8 standards and modern E-discovery. I do think, however, that the court was too quick to dismiss the possibility of phased discovery, which has the potential to avoid the greatest evils of either alternative.

- Now, I certainly think that there are some problems with Twombly/Iqbal. For one, the decisions are somewhat disingenuous, refusing to admit that they are changing the rules on practical grounds. Also, nobody knows exactly what the new standard is. The court has basically announced that the pendulum swung too far, but there's no clear test at this point. This is, to some extent, inevitable. It will take some time for everyone to flesh out the new rules of the game.

[270910]

jrs12: I agree with almost everything you said except 'rule 9 is not a heightened pleading standard'. I just did a search on my notes, and the word 'heightened' appears a zillion times in my discussion of Rule 9, directly from the lecture my prof gave.

[jrs12]

I guess I should have made it clear that I was presenting a point of view. There is a legitimate scholarly position, which I find persuasive, that R9 is not best understood as a "heightened" pleading standard. I realize that it's the common way of describing it. I didn't mean to suggest that R9 is described differently, but rather that it should be.

Regarding the negligent driving, you're simply wrong. Your conclusion is not a strange one to draw from reading the two cases, but if you start researching the way that the cases have been applied, you'd see that it's not the case. I've been really deep in this stuff all year.

[Renzo]

I guess I should have made it clear that I was presenting a point of view. There is a legitimate scholarly position, which I find persuasive, that R9 is not best understood as a "heightened" pleading standard. I realize that it's the common way of describing it. I didn't mean to suggest that R9 is described differently, but rather that it should be.

Regarding the negligent driving, you're simply wrong. Your conclusion is not a strange one to draw from reading the two cases, but if you start researching the way that the cases have been applied, you'd see that it's not the case. I've been really deep in this stuff all year.

All I asserted was that the claim, under Twombly/Iqbal, should not be be sufficient. I am not saying that Dist. Cts. that aren't in favor of the Twombly/Iqbal standard aren't using their discretion to allow these anyway, I am just saying that when they do, they are doing it contrary to the Supreme Court's language.
And the way you worded your earlier response, that negligent is plausible on its face, is exactly what the Supreme Court was saying shouldn't be sufficient. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-51 (2009).

And this is the problem with the Twombly/Iqbal standard. The regular old pleading standard has been elevated to what used to be a "heightened" standard.

[Renzo]

I guess I should have made it clear that I was presenting a point of view. There is a legitimate scholarly position, which I find persuasive, that R9 is not best understood as a "heightened" pleading standard. I realize that it's the common way of describing it. I didn't mean to suggest that R9 is described differently, but rather that it should be.

Regarding the negligent driving, you're simply wrong. Your conclusion is not a strange one to draw from reading the two cases, but if you start researching the way that the cases have been applied, you'd see that it's not the case. I've been really deep in this stuff all year.

All I asserted was that the claim, under Twombly/Iqbal, should not be be sufficient. I am not saying that Dist. Cts. that aren't in favor of the Twombly/Iqbal standard aren't using their discretion to allow these anyway, I am just saying that when they do, they are doing it contrary to the Supreme Court's language.
And the way you worded your earlier response, that negligent is plausible on its face, is exactly what the Supreme Court was saying shouldn't be sufficient. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-51 (2009).

And this is the problem with the Twombly/Iqbal standard. The regular old pleading standard has been elevated to what used to be a "heightened" standard.

I partially agree. I am not saying that this doesn't take us back slightly into some fact pleading that the original re-write of the rules meant to do away with by notice pleading, BUT at the same time, I don't think a ∆ should be subjected to a fishing expedition of a discovery process, especially given the cost.

I mean, do you think that you should be subject to suit if I allege that "Renzo had a duty to me, which he thus breached, causing me injury. Thus I demand compensatory and punitive damages for said negligence." ?

I agree, but I don't think that passes under the old standard. Iqbal in particular plead a fairly specific allegation, but the defendant would have been in possession of any/all evidence of the allegation, so without discovery there is basically no way he could ever plead more specifically. The who, what, when of the complaint was all alleged, the what and when were pretty well proved, and Iqbal was hoping to get evidence on discovery to prove the who.