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Federal Rules of Civil Procedure

December 31, 2010
Seventh Circuit on Twombly, Pleading Standards
The U.S. Court of Appeals for the Seventh Circuit ruled earlier this week that a lower federal court judge correctly held that a complaint alleging a conspiracy to fix prices of text message services was plausible enough for litigation to proceed.
Verizon Wireless and other providers of text messaging services, citing the Supreme Court’s decision in Bell Atlantic Corp. v. Twombly, had urged the federal court in Chicago to find that the litigation’s underlying complaints against the wireless communications companies were insufficient and therefore should be dismissed.
Seventh Circuit Judge Richard A. Posner concluded that the “district judge was right to rule that the second amended complaint provides a sufficiently plausible case of price fixing to warrant allowing the plaintiffs to proceed to discovery.”
Although the plaintiffs’ second complaint survived a Twombly challenge, Posner noted that Twombly was “designed to spare defendants the expense of responding to bulky, burdensome discovery unless the complaint provides enough information to enable an inference that the suit has sufficient merit to warrant putting the defendant to the burden of responding to at least a limited discovery demand.”
Twombly and its successor, Ashcroft v. Iqbal, have been criticized by civil rights attorneys, law makers, and legal scholars as creating much more stringent pleading standards than intended by Congress. In its Iqbal decision, the Supreme Court held that for lawsuits to survive motions to dismiss, plaintiffs must provide much more specific factual information. The high court in Iqbal also stated that judges have greater discretion in dismissing complaints before the discovery stage of litigation. The Federal Rules of Civil Procedure created in 1938 had only required that plaintiffs file a complaint including a “short and plain” statement about why they were entitled to relief.
Earlier this year, two civil rights attorneys argued in an ACS Issue Brief that the Supreme Court decisions in Twombly and Iqbal have undermined the “deliberative and inclusive process” that Congress established. For more discussion of the ramifications of Twombly and Iqbal, watch video of an ACS symposium, available here.
Tags:
Procedural barriers to court, Access to Justice, Ashcroft v. Iqbal, Bell Atlantic v. Twombly, Federal Rules of Civil Procedure, pleading standards
December 22, 2009
Debate Roils over High Court’s Decisions Limiting Access to Courts
The New York Times today notes "a lamentable" Supreme Court decision that makes it much more difficult for "Americans to assert their legal rights in court."
The Times' editorial refers primarily to the high court's ruling in Ashcroft v. Iqbal, which gives judges greater discretion to dismiss lawsuits. As the editorial board notes, traditionally civil procedural rules called for plaintiffs to file short statements outlining claims and legal grounds.

The editorial states:

The Iqbal ruling, which followed a similar 2007 ruling applying to antitrust claims, abandoned that approach. Under the court's new regimen, judges must assess the ‘plausibility' of the facts of an allegation before allowing the plaintiff to begin collecting evidence. That gives judges excessive latitude to bury cases based on their subjective views before the evidence emerges and can be fairly weighed.

That appears to be happening already. In a recent article for The National Law Journal, Tony Mauro reports that motions to dismiss based on Iqbal "have become commonplace in federal courts, already producing more than 1.500 district court and 100 appellate court decisions according to a Westlaw search."

The Times does note that lawmakers, such as Rep. Jerrold Nadler and Sen. Arlen Specter are pushing legislation that would return civil procedural rules to pre-Iqbal status. "It is the responsibility of Congress to reopen the courthouse doors," the editorial states.

Next month, ACS will host an event examining access to federal courts, which will include a panel discussion devoted to the recent cases that have stiffened the pleading standards. Professor Arthur R. Miller of NYU Law School will moderate that panel discussion, which will include Steven E. Fineman, Brad N. Friedman, Faith E. Gay, Barbara J. Hart, Richard T. Joffe, Andrew J. Pincus, Alexander A. Reinert, Teresa Wynn Roseborough and Vincent Warren. Executive Director of the ACLU Anthony D. Romero will provide the keynote address for the Jan. 21, 2010 event called, "Access to Justice in Federal Courts." See here for more information about the event.

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Tags:
Access to Justice, Class actions, Procedural barriers to court, Access to Justice, Ashcroft v. Iqbal, Federal Rules of Civil Procedure, Rep. Nadler, Sen. Specter
July 24, 2009
Senator Introduces Bill To Address High Court Decisions on Civil Lawsuits
Recent Supreme Court decisions that have altered procedure for filing civil lawsuits have prompted congressional action. The BLT reports that Sen. Arlen Specter has introduced the Notice Pleading Restoration Act of 2009 to counter the high court's decisions in Bell Atlantic Corp. v. Twombly (pdf) and Ashcroft v. Iqbal (pdf). In Iqbal, the high court ruled that federal judges have greater discretion to dismiss complaints, which according to some Supreme Court practitioners will make it easier for judges to quickly toss civil lawsuits out of court. Stephen B. Burbank, a University of Pennsylvania Law School professor, told The New York Times that the Iqbal decision amounts to a "blank check for federal judges to get rid of cases they disfavor."
Specter's legislation is aimed at requiring the federal courts to follow traditional civil procedure rules for filing lawsuits. Rule 8 of the Federal Rules of Civil Procedure simply requires that complaints include "a short and plain statement of the claim showing that the pleader is entitled to relief." As noted by The BLT, Iqbal now requires plaintiffs to produce more facts, and allows judges greater ability to dismiss them. Writing for the Iqbal majority, Justice Anthony Kennedy said that a court must "draw on its judicial experience and common sense" in deciding whether a complaint is plausible.

Specter said, "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," The BLT reported.

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Tags:
Access to Justice, Procedural barriers to court, Arlen Specter, Ashcroft v. Iqbal, Civil Procedure, Federal Rules of Civil Procedure