The latest word on appellate review of the heightened pleading standard finds the 4th Circuit agreeing with Alexandria U.S. District Judge Gerald Bruce Lee’s dismissal of an auto dealership’s defamation claim against a Web site that posted consumer complaints.
Finding the dividing line between dismissal for lack of substance, and a chance to advance on the federal-court game board, can be a subtle exercise.
It’s not just a question of piling up details, but whether the allegations have sufficient “heft” to “nudge” a party’s claims “across the line from the ‘conceivable to plausible,’” wrote Judge G. Steven Agee.
In the Dec. 29 decision in Nemet Chevrolet v. Consumeraffairs.com, the dealer’s claim that the defendant Web site revised or redrafted consumer complaints it posted, or in some cases, simply made stuff up, were not enough to creep over the dividing line and allow suit under the Communications Decency Act of 1996.
Interestingly, U.S. Western District Judge Jim Jones, sitting by designation, would have green-lighted the dealer’s claims that the Web site fabricated some customer complaints in order to attract other consumer complaints.
Jones cautioned that Twombly and Iqbal did not merge the pleading requirements of Rule 8 with the burden of proof for summary judgment, but called for enough facts to raise a “reasonable expectation” of productive discovery to support a claim.
By Deborah Elkins