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A higher hurdle

The U.S. Supreme Court has set a higher hurdle for a plaintiff filing a civil complaint in federal court.

In 2007 the court issued an antitrust case that heightened the standard of proof required to survive a motion to dismiss in federal court.

A new case makes it clear that the higher standard is applicable across the board, according to civil litigators.

On May 18, the Supreme Court in Ashcroft v. Iqbal confirmed that the pleading standard first articulated in Bell Atlantic Corp. v. Twombly two years ago applies to all federal civil complaints.

The court elaborated on its finding in Twombly that a plaintiff must allege enough facts to state a claim for relief that is plausible on its face. The plausibility standard stops short of probability, but “it asks for more than a sheer possibility that a defendant has acted unlawfully,” Justice Anthony Kennedy wrote for the 5-4 majority in Iqbal.

Charlottesville attorney R. Lee Livingston questioned the plausibility concept.

“Plausible is not a term used in the law before,” he said.

Adding it to the equation does little to clarify the law, he added. It merely provides a federal judge with “a new bigger hammer to knock down a case right from the beginning,” he said.

That’s an “interesting and exciting” prospect from the perspective of a defense attorney such William N. Berkowitz of Boston.
Plaintiffs’ lawyers, in drafting their complaints, “will to a much greater extent be forced into putting their cards on the table, face up, right from the beginning,” he said.

“If you’re going to file a lawsuit and you want to increase your odds of beating a Rule 12(b)(6) motion [to dismiss], you’re going to need to include more factual detail than you may have done in the past. That obviously works very much in the defendant’s favor.”

Although the Twombly court found a complaint must allege enough facts to state a claim to relief that is plausible on its face, Brian C. Davis, another Boston attorney, said there had been significant disagreement about how judges should apply the 2007 holding.

Plaintiffs’ attorneys had hoped Twombly would be limited to antitrust cases, despite its expansive language, but most lower courts have given it the broad interpretation that Iqbal reinforced, according to W. Clark Williams Jr., an associate dean and professor at the University of Richmond law school.

The ruling puts “a Catch 22 on the plaintiff” in that he frequently needs discovery after filing suit to establish the “plausible” facts to fully support his legal theory, Williams said.

Davis suggested that that the decision is at odds with the the Rules of Civil Procedure, which only require plaintiff’s counsel to include a short, plain statement of a claim in a complaint.

“What [Iqbal] is essentially saying is [the court] is not going to give you discovery unless you can come up with some facts upfront that can support the allegations in your complaint,” Davis said. “That’s a change that moves us in a direction I don’t think we should be going.”

Davis said lawyers typically have not had to include detailed evidence in their complaints. Instead, they could describe their claims in general terms.

“This provides the court with a bit more ammunition to reject allegations of complaints as conclusory,” he said. “Unfortunately, I don’t think it provides very clear guidance as to when an allegation falls on one side or the other of the line.”

Barry C. Klickstein, a Boston attorney, said, “What this case is going to tell some defense lawyers is: When in doubt, test the complaint. It seems to me that, given this case, what you’re going to do if you are a defendant is always err on the side of filing a 12(b)(6) motion simply because the bar has been raised a little higher.”

In Iqbal, a Muslim man detained after Sept. 11, 2001, filed a civil complaint alleging he was treated harshly while in federal custody because of his race, religion or national origin.

Iqbal alleged that the defendants, U.S. Attorney General John Ashcroft and FBI Director Robert Mueller, approved or condoned his restrictive confinement. The Supreme Court held, however, that the facts alleged in the complaint stopped well short of establishing that Ashcroft and Mueller purposely adopted a policy treating terror suspects harshly because of race, religion or national origin.

“A court considering a motion to dismiss may begin by identifying allegations that, because they are mere conclusions, are not entitled to the assumption of truth,” said Kennedy. “While legal conclusions can provide the complaint’s framework, they must be supported by factual allegations … .

“[T]he tenet that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of a cause of action’s elements, supported by mere conclusory statements,” wrote Kennedy. “Where a complaint pleads facts that are ‘merely consistent’ with a defendant’s liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’ ”

As for the suggestion that Twombly could be limited to its antitrust facts, “Our decision in Twombly expounded the pleading standard ‘for all civil actions,’ and it applies to antitrust and discrimination suits alike.”

Harris D. Butler III, an attorney in Richmond who frequently represents plaintiffs in employment discrimination cases, said the Iqbal case will only reinforce the types of pleadings plaintiffs’ attorneys typically file.

“The better practice is to do a more specific pleading anyway,” he said. Diligent attorneys can usually find the detail they need from Equal Employment Opportunity Commission documents, Freedom of Information Act requests and informal discovery, he said.
Butler and John C. Cook, a Fairfax employment lawyer, said they believe the context of the case still matters.

Cook said an important subtext of Iqbal is that “we don’t want just anyone to be able to sue the attorney general and the head of the FBI.”

Harris said he also viewed the case as establishing the court’s concern about subjecting top government officials to the distraction of discovery.

Livingston said the higher pleading standard may be more of a factor for plaintiffs in defamation, civil rights and antitrust cases in which the state of mind of the defendants is critical and difficult to show without the e-mails, documents and testimony available through formal discovery.

Still, Iqbal “is not the death of notice pleading like some people have said it is,” he contended.

Like Cook and Harris, he believes the type of case still colors the plausibility analysis and creates the possibility of distinguishing a more routine case from one that challenges the conduct of top officials.

Language in Iqbal itself provides a hook for such distinctions, Livingston noted, pointing to Kenney’s observation that “[d]etermining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”

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