New Local Rules in Memphis
The judges in Shelby County have adopted new local rules of court. Here is a copy.
Court Imposes Sanctions for Failure To Follow Rules Concerning Citation to the Record
Yesterday I discussed a portion of the opinion S.C. Johnson and Son, Inc. v. Morris, Appeal No. 2008AP1647 (Wis. Ct. App. Div. II Dec. 2, 2009) concerning the assertion of the Fifth Amendment in civil litigation. I wanted to bring to your attention a footnote (Footnote 1) that addressed the failure of counsel to follow court rules for writing appellate briefs. Tennessee appellate courts have rules similar to that of Wisconsin and I have seen several recent opinions chastizing lawyers for failure to follow those rules.
We note that neither Russell’s nor Buske’s appellate counsel properly cite to the record. Record cites are often missing. An appellate court is improperly burdened where briefs fail to consistently and accurately cite to the record. Meyer v. Fronimades, 2 Wis. 2d 89, 93-94, 86 N.W.2d 25 (1957). Even more troubling is that both appellate counsel failed to include in the appendix all “the findings or opinion[s] of the circuit court … including oral or written rulings or decisions showing the circuit court’s reasoning regarding those issues,” as required by WIS. STAT.RULE 809.19(2)(a) (2007-08). We had to sift through the voluminous record to find the trial court’s rulings on some of the issues on appeal. We impose a fine of $150 on Buske’s appellate counsel and a fine of $150 on Russell’s appellate counsel. See State v. Bons, 2007 WI App 124, ¶¶21-25, 301 Wis. 2d 227, 731 N.W.2d 367. Both fines are payable to the clerk of this court within thirty days of the release of this opinion. See id., ¶25.
Justice Robert Hansen once wrote the now familiar phrase that “[a]n appellate court is not a performing bear, required to dance to each and every tune played on an appeal.” State v. Waste Mgmt. of Wis., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978). We are not required to search for the proverbial needle in the haystack that the appellant asserts exists but has not cited to. See Keplin v. Hardware Mut. Cas. Co., 24 Wis. 2d 319, 332, 129 N.W.2d 321 (1964). So to the extent that we may have missed an objection or point of contention, the fault lies with appellate counsel, not this court.
Court Erred in Ordering Release of Medical Records
The Ohio Court of Appeals has ruled that a trial judge committed error by ordering production of a personal injury plaintiff's medical records without first doing an in camera review to determine if the records should have been turned over to the defendant.
The opinion is interesting to Tennessee lawyers and should be persuasive in Tennessee even though the physician-patient privilege is statutory in Ohio.
Under Ohio law, "the filing of any civil action waives the physician-patient privilege as to any communication (including a medical record) that relates causally or historically to the injuries at issue in the action. Natl. City Bank v. Rainer (Aug. 12, 1999), 10th Dist. No. 98AP-1170; Ward v. Johnson's Indus. Caterers, Inc. (June 25, 1998), 10th Dist. No. 97APE11-1531."
The Court explained what should happen when the parties disagree about the scope of discovery of medical records:
We acknowledge that there are many methods for obtaining medical records and determining their relevance before requiring their disclosure in discovery. See, e.g., Natl. City (identifying multiple ways in which a trial court may protect privileged medical records from disclosure); Folmar at ¶25 (directing the trial court to order that disputed records be transmitted under seal for the court's in-camera review). See also Penwell at ¶9 (recognizing "that circumstances may arise wherein the need for an in camera inspection is obviated because the discoverability of the material is apparent from the nature of the action, scope of the request, and a tailored order for disclosure"). In the end, we intend no intrusion upon a trial court's authority to determine the most appropriate method for protecting privileged medical records in a given case. A trial court may not, however, simply ignore the requirements of R.C. 2317.02(B).
Thus, the Court of Appeals ordered that the judge review the records and determine whether they were causally or historically to the injuries at issue in the action.
This is a common-sense result, and the same rule should apply in Tennessee. Personal injury plaintiffs should not be required to reveal their entire medical history to complete strangers simply because they file a lawsuit. Instead, discovery of past medical history should be limited to that causally or historically to the injuries at issue in the action.
The case is Mason v. Booker, No. 09AP-500 (Ohio App. 10th District November 24, 2009).
Defendant's Discovery Abuse Results in Default Judgment of $8,000,000, Plus Fees
What do you do when a party to a lawsuit intentionally refuses to follow the rules? One judge in Washington State knew what to do: the judge struck the defendant's answer, entered judgment for $8,000,000, and awarded attorneys' fees. Last week the Washington Supreme Court had upheld the award.
The facts are almost impossible to summarize and readers are urged to review the opinion to learn the details. The bottom line:
The court found (1) there was no agreement between the parties to limit discovery, (2) Hyundai falsely responded to Magaña's request for production and interrogatories, (3) Magaña was substantially prejudiced in preparing for trial, and (4) evidence was spoiled and forever lost. The trial court considered lesser sanctions but found that the only suitable remedy under the circumstances was a default judgment. Hyundai then appealed.
[Footnotes omitted.]
Here are some highlights from the opinion of the Washington Supreme Court:
A corporation must search all of its departments, not just its legal department, when a party requests information about other claims during discovery. Here Hyundai searched only its legal department. Hyundai's counsel told the trial court that in response to request for production 20, Hyundai's search "was limited to the records of the Hyundai legal department" and that "no effort was made to search beyond the legal department, as this would have taken an extensive computer search." CP at 5319. As the trial court correctly found, "[t]here is no legal basis for limiting a search for documents in response to a discovery request to those documents available in the corporate legal department. ... Hyundai had the obligation to diligently respond to Magaña's discovery requests about other similar incidents. It failed to do so by using its legal department as a shield. The trial court also found "Hyundai had the obligation not only to diligently and in good faith respond to discovery efforts, but to maintain a document retrieval system that would enable the corporation to respond to plaintiff's requests. Hyundai is a sophisticated multinational corporation, experienced in litigation." Id. Hyundai willfully and deliberately failed to comply with Magaña's discovery requests since Magaña's initial requests in 2000 and continued to do so.
...
Magaña's ability to prepare for trial was substantially prejudiced because of Hyundai's egregious actions during discovery. The Court of Appeals substituted its own discretion for the trial court's, which is inconsistent with the abuse of discretion standard. The record supports the findings of the trial court that Magaña was prejudiced in preparing for trial.
...
The record fully supports the trial court's other conclusions: there was no agreement between the parties to limit discovery,Hyundai's definition of "claims" was too narrow because Magaña's discovery request was broad, and the seats in the Hyundai Elantra were similar to the seats in the Hyundai Accent. These findings of fact also support the conclusion Hyundai willfully violated the discovery rules.
[Footnotes omitted.]
The case is Magana v. Hyundia Motor America, No.80922-4.(Wash. Nov. 25, 2009). Read the opinion here. Regular readers will recall that a Minnesota trial judge recently awarded millions of dollars in sanctions against a defendant railroad company and a Vermont trial judge recently awarded sanctions against a lawyer for the Roman Catholic Diocese when its lawyer violated a motion in limine.
Rule of the Week - T.R.C.P. 43.04
Winning pre-trial motions means that you have to get relevant data before the Court in the right way. Following the right procedure is not only the way you win motions you should win but is also the way you create a record for a possible appeal.
Rule 43.04 of the Tennessee Rules of Civil Procedure tells lawyers how to create a proper record when filing a motion on a matter to be considered by the court. The rule is well-written and self-explanatory.
When parties supporting or opposing motions before the court present materials not previously filed with the court, such materials shall be submitted as follows:
(1) All or part of any deposition taken pursuant to Rules 30 or 31 shall be accompanied by an original or photocopy of the certification of the officer taking the deposition.
(2) All or part of any interrogatory answers or objections thereto obtained pursuant to Rule 33 and all or part of any response or objection to a Rule 36 request for admission shall be accompanied by the original signature of the responding party or attorney, or a photocopy thereof.
(3) Any document obtained pursuant to a Rule 34 request for production of documents shall be accompanied by a copy of the request for production and either a copy of the response thereto or a certificate of authenticity from the party or attorney presenting the document to the court.
The submitting party shall also include the title page of the foregoing documents showing the complete caption for the action as required by Rule 10.01. The submission shall include all relevant definitions provided in the original document.
In ruling on any motion, the court shall consider only those documents and other materials that have been filed with the court as provided herein or that have been presented to the court in accordance with Rules 43.01 or 43.02, or matters that have been stipulated by the parties.
How do you make such a filing? Title it "Plaintiff's Notice of Filing In Opposition to Defendant Holy Grail Insurance Company's Motion for Summary Judgment." The opening sentence should read as follows: " Plaintiff, Snow White, pursuant to Rule 43 of the Tennessee Rules of Civil Procedure, submits the following documents in opposition to the Defendant Queen's Motion for Summary Judgment." Then, list and describe each document and attach the documents to the Notice. Here is an example:
- Affidavit of Snow White. (Exhibit A)
- Affidavit of Grumpy. (Exhibit B).
- Selected excerpts of the April 1, 2009 Deposition of the Queen. (Exhibit C)
- Statement of Counsel Certifying Authenticity of Documents Produced by Queen and Documents. (Exhibit D).
You will save yourself a lot of heartache if each page of each exhibit is marked seperately in the lower right hand corner like this: Exhibit A, 1 of 4, 2 of 4, 3 of 4, 4 of 4, Exhibit B 1 of 20, 2 of 20 etc. In that way you will know exactly what you marked as an exhibit and can be sure you have a complete set of what you filed.
Finally, file the Notice and exhibits with the Clerk of Court.
One last note. You no longer have to file a complete copy of the deposition to use a portion of the deposition in support of or opposition to a motion. Instead, follow subsection (3) of the rule.
Rule of the Week - T.R.C.P. 7.02 (Motions)
Rule 7.02 of the Tennessee Rules of Civil Procedure governs motions. It is important for what it does not say. Here is the text of the rule:
(1) An application to the court for an order shall be by motion which, unless made during a hearing or trial, shall be made in writing, shall state with particularity the grounds therefor, and shall set forth the relief or order sought. The requirement of writing is fulfilled if the motion is stated in a written notice of the hearing of the motion.
(2)The rules applicable to captions, signing, and other matters form of pleadings apply to all motions and other papers provided for by these rules.
Do you see what is missing? Many local rules mandate that a motion requiring that an issue of law be decided be accompanied by a memorandum of law. But there is nothing in Rule 7, or any local rule that I am aware of, that prohibits a motion and a memorandum of law being contained in the same document.
Why do I care? The use of two documents means that there are two documents that must be kept up with during the hearing. It requires a duplication of a caption, a certificate of service, and one or two paragraphs of other information. It is totally unnecessary So, why not combine the two?
Here is how it can work? The title of the document would be "Defendant Deep Pockets, LLC's Motion to Compel and Memorandum of Law." The opening sentence would read "Defendant Deep Pockets, LLC respectfully moves for an Order compelling the Plaintiff to answer interrogatories and produce documents.
The next section of the document would be designated "Grounds for Motion" and would set forth in particularity the grounds for the motion. In the example, the grounds would be that discovery was served on Plaintiff on June 1, 2009, was due July 5, 2009, and that no response had been received. This section would also detail the efforts made to resolve the matter before court intervention was sought.
The next section would be designated "Applicable Law.". The following section would be the "Argument" section, where the law was applied to the facts as set forth in the grounds for the motion. The last section, "Relief Sought," sets forth in particularity the relief sought by the motion.
The filing of one document will save time, money and paper. Let me know if you like the idea.
Rule of the Week - T.R.C.P 8.03
There are numerous differences in the state rules of civil procedure and the federal rules of civil procedure. For example, Tennessee Rule 8.03 is different than F.R.C.P. Rule 8(c) because it requires a defendant who pleads an affirmative defense to set forth facts that form the basis of the defense. Here is the text of the rule:
In pleading to a preceding pleading, a party shall set forth affirmatively facts in short and plain terms relied upon to constitute accord and satisfaction, arbitration and award, express assumption of risk, comparative fault (including the identity or description of any other alleged tortfeasors), discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, statute of repose, waiver, workers’ compensation immunity, and any other matter constituting an affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall treat the pleading as if there had been a proper designation. {Emphasis added.}
Why is this important? A defendant cannot simply say "there was insufficiency of service of process" or "I allege the comparative fault of Smith." No, the defendant must go further and set forth the facts that support that defense. Of course, the allegations of those facts can be changed via amendment under Rule 15, but the initial pleading raising the defense must include facts. If not, the court should strike the affirmative defense Rule 12.06 as insufficient.
A new decision of the Tennessee Court of Appeals makes it clear that Rule 8.03 means what it says. Allgood v. Gateway Health Systems, No. MC-CC-CV-MA-06-391 (Tenn. Ct. App. Sept. 22, 2009) did not let a defendant who asserted an insufficiency of process that was bare of any facts use that defense to seek dismissal of the case after the plaintiff could not longer cure the deficiency.
The Allgood decision will be addressed in more detail in the November issue of the Tennessee Trial Law Report. Click here to subscribe.
Tennessee Supreme Court Issues Proposed Rules for Public Comment
The Tennessee Supreme Court has asked for public comment on proposed changes to the rules of procedure and evidence. The Order asking for public comment can be viewed here.
I serve on the Court's Advisory Commission on the Rules of Practice and Procedure and I am happy to report that the Court has accepted (at least for purposes of public comment) each of the rule changes proposed by the Commission.
Significant proposed changes to the rules of civil procedure include changes to clarify Rule 3 and 4 concerning the need to serve a summons and complaint promptly after filing of the complaint and issuance of the summons, Rule 5 concerning the electronic service of pleadings, motions and other documents, and Rule 26 concerning the discovery of insurance policy limits. The most significant change to the rules of evidence is new Rule 502 concerning the inadvertent waiver of the privilege.
Rule of the Week - T.R.C.P. 37.03(1)
Rule 37.03(1) of the Tennessee Rules of Civil Procedure is the rule that provides for sanctions for the failure to provide complete answers to interrogatories and other discovery. Here is the text of the rule:
A party who without substantial justification fails to supplement or amend responses to discovery requests as required by Rule 26.05 is not permitted, unless such failure is harmless, to use as evidence at trial, at a hearing, or on a motion any witness or information not so disclosed. In addition to or in lieu of this sanction, the court on motion may impose other appropriate sanctions. In addition to requiring payment of reasonable expenses (including attorney fees) caused by the failure, these sanctions may include any of the actions authorized under Rule 37.02(A), (B), and (C) and may include informing the jury of the failure to supplement or amend.
As you can see, the default sanction for failure to supplement or amend is a bar to the use of the evidence.
This rule is particularly effective when your opponent fails to give complete answers to expert witness interrogatories. Judges should prohibit a party who fails to disclose opinions of an expert or the bases for those opinions from testifying to those matters at trial.
It can also be used when your opponent fails to disclose a fact witness or fails to turn over documents that were covered by a Rule 34 document request.
Of course, if you do a shoddy job of answering expert interrogatories you will have a hard time complaining about the incomplete answers of your opponent. But, if you follow the rule, the judge should require your opponent to do the same, and should enforce the default sanction.
Sometimes a person who intentionally or carelessly does a poor job answering expert witness interrogatories will say that the movant could have learned the additional information if he or she had taken the expert's deposition. That's right: the argument is that it is the movant's fault for not spending thousands of dollars to get information that was supposed to be provided by answers to expert witness interrogatories. Your response to that argument is that you have no duty to spend your time and money to determine if your opponent has followed the rules of procedure and that you had a right to rely on the interrogatory answers in determining what the expert was going to say at trial.
If you decide not to depose your opponent's experts, this language in a letter to your adversary after you receive answers to the expert witness interrogatory will help you with your trial judge.
I have your answers to expert witness interrogatories. I assume that the answers are complete and that I have been provided with all information required under Rule 26. If the answers are incomplete in any way, or if supplementation of the answers is required by Rule 26.05, please do so as soon as possible.
Based on your answers, I have elected not to depose your experts. However, please be advised that in the event that your expert attempts to testify to any substantive matter not included in your answers to expert witness interrogatories I will ask the Court to exclude such testimony under Rule 37.03(1).
This rule is relatively new and judges in some areas of the state need to be educated about it. Lawyers should not be permitted to sandbag opponents by giving shoddy expert witness disclosures or withholding documents.
Scehduling Orders: Deadlines for Alleging Fault Against Nonparties
Scheduling orders are wonderful tools that are often overlooked by far too many plaintiff’s lawyers. One of the most important deadlines to put in a scheduling order is a deadline by which the defendant must allege the fault of a person not a party to the action.
Plaintiff’s lawyers have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of at-fault defendants and the development of evidence against those defendants.
Defense lawyers also have the responsibility to reasonably investigate their case and prepare it for trial. That responsibility includes the identification of other at-fault parties, including those who are not a party to the action.
Continue Reading...Iqbal / Twombly: The Death of Notice Pleading
If you don't understand the title of this post, you will want to log into the seminar that goes by the same name that is sponsored by AAJ.
This seminar, exclusively for plaintiff's lawyers, will analyze the USSC decisions in these important cases and explain how they will impact your practice. Also discussed will be AAJ's response to these cases and the steps that are being taken to help the judicial system understand the adverse impact that these decisions have on access to justice.
The teleseminar will be held on Thursday the 17th of September at 1:00 CDT. It will last 90 minutes. Go to the AAJ website to register.
Suggestion for Expert Witness Disclosure Language in Scheduling Orders
One of the battles in the preparation of scheduling orders is the deadlines for disclosure of expert witnesses. The defense always wants the plaintiff to go first, and wants an additional 30 or 60 or even 90 days to disclose its experts. Sometimes, the defense wants to depose the plaintiff’s experts before disclosing its own experts, a ridiculous position that should be rejected by every trial judge. Simultaneous disclosures are rarely ordered by judges in Tennessee.
I am involved in a case in federal court in West Virginia and learned that it has an eminently fair way of resolving the problem of the timing of expert witness disclosures. Here is the language used in the West Virginia judge’s scheduling orders:
The party having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ___________. The party not having the burden of proof on an issue shall disclose all expert witnesses on that issue on or before ______________.
Thus, because a plaintiff ordinarily has the burden of proof on liability, causation, and damages, plaintiff will have to disclose expert witnesses on these issues first. However, to the extent that the defendant asserts an affirmative defense (and thus assumes the burden of proof on that issue) the defendant has will have to disclose expert(s) on the affirmative defense at the same time the plaintiff discloses experts.
Continue Reading...Objections to Form of the Question at Depositions (With a Discussion About Objections to Leading Questions)
"All objections, except those as to the form of the question, are reserved." This sentence, or one substantially similar to it, may be found at the beginning of every deposition. But what are objections to the form of the question?
Evan Shaeffer at The Trial Practice Tips Weblog shared a list of objections to form in a recent post. The post lists seven different objections - vague, compound, argumentative, asked and answered, assumes facts not in evidence, misstates the evidence, leading, lacks a questions, lacks foundation - and gives examples of several of the objections. It is a handy list that you may wish to keep as a part of your materials on the law of depositions. Of course, you can always come back to this site and find the link under the "Civil Procedure" category or by using the "Search" function.
Many people get upset when you object to leading at a deposition. And they should, assuming that they are taking the deposition of a party opponent or another person that they would be allowed to lead at trial. The law permits those witnesses to be lead during depositions. But the deposition of a co-party or a third-party witness is different. Why? Because they would not be able to lead that witness at trial (unless they are cross-examining that witness).
But why, you might ask, would you care? It is just a discovery deposition.
This is why. Except as to expert witnesses, there is no such thing as a discovery deposition in Tennessee absent an agreement of the parties. Outside of these limited circumstances, every deposition can be used at trial under the situations described in the rules of civil procedure and the rules of evidence. Here are the relevant rules that should give you pause for concern.
Rule 32.01(3) pf the Tennessee Rules of Civil Procedure provides that "the deposition of a witness, whether or not a party, may be used by any party for any purpose if the court finds that the witness is “unavailable” as defined by Tennessee Rule of Evidence 804(a)."
Rule 804(a) of the Tennessee Rules of Evidence states that unavailability includes those situation where the declarant
(1) Is exempted by ruling of the court on the grounds of privilege from testifying concerning the subject matter of the declarant's statement; or
(2) Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or
(3) Demonstrates a lack of memory of the subject matter of the declarant's statement; or
(4) Is unable to be present or to testify at the hearing because of the declarant's death or then existing physical or mental illness or infirmity; or
(5) Is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance by process; or
(6) For depositions in civil actions only, is at a greater distance than 100 miles from the place of trial or hearing. .
A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.
You never know if that non-party witness may be dead by the time of trial. Or will have moved out of the subpoena power of the court. Or suffers effects from a debilitating stroke. Thus, a judgment call has to be made whether to allow your opponent to lead non-party witnesses during direct examination at depositions or whether you will lodge an objection to the form of the question for leading.
How do you do it? "Objection, leading." Response: "This is a discovery deposition. Don't be a jerk." Reply: "Will you agree that I have a standing objection to every leading question you ask? If, so, I will be happy to not interfere with your questions and object to every leading question." Sur-reply: "Sure, jerk."
Does Error of Counsel Justify Setting Aside a Default Judgment?
Not in the Seventh Circuit, it doesn't. In Bakery Machinery & Fabrication, Inc. v. Traditional Baking, Inc., No 08-1967 (7th Cir. June 29, 2009) the Court of Appeals for the Seventh Circuit refused to vacate a default judgment under Rule 60(b)(6).
The Court ruled as follows:
[W]e drew a clear line in United States v. 7108 West Grand Avenue, 15 F.3d 632, 634 (7th Cir. 1994) when we said that “[t]he clients are principals, the attorney is an agent, and under the law of agency the principal is bound by his chosen agent’s deeds.” The rule is that all of the attorney’s misconduct (except in the cases where the act is outside the scope of employment or in cases of excusable neglect) becomes the problem of the client. See id. A lawyer who inexcusably neglects his client’s obligations does not present exceptional circumstances. See Williams, 890 F.2d at 996. Hinterlong’s actions, even with BMF’s purported diligence, do not fall within the exceptions to the rule and do not rise to the level of 'exceptional' to warrant such 'extraordinary' relief.
BMF’s beef is against Hinterlong, not the court’s ruling on the case. Deception of a client becomes the liability of the client’s attorney and not the client’s opponent. See Tolliver, 786 F.2d at 319 (“Holding the client responsible for the lawyer’s deeds ensures that both clients and lawyers take care to comply. If the lawyer’s neglect protected the client from ill consequences, neglect would become all too common.”). Since clients must be held accountable for their attorney’s actions, it does not matter where the actions fall between 'mere negligence' and 'gross misconduct.' See 7108 West Grand Avenue, 15 F.3d at 635. 'Malpractice, gross or otherwise, may be a good reason to recover from the lawyer but does not justify prolonging litigation against the original adversary.' Id. at 633. See United States v. Di Mucci, 879 F.2d 1488, 1496 (7th Cir. 1989) ('It seems clear to us that the law in this circuit is that an attorney’s conduct must be imputed to his client in any context.') (emphasis in original).
Hinterlong was given lots of opportunities to file an answer on behalf of his client but failed to do so. He apparently was not truthfully representing the status of the case to his client.
To be sure, this case has some outrageous facts. But there is language here that could come back to haunt the lawyer who fails to answer a complaint because he or she thinks the judge will give them more time if the plaintiff lawyer files a motion for a default.
Article about Requirements for Pleading Facts in Complaints
Last fall I wrote about the new standard for pleading in federal court announced in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Now, a new article by Andrée Sophia Blumstein appearing in the July 2008 edition of the Tennessee Bar Journal studies Twombly in more detail and comments on the decision in Ashcroft v. Iqbal, 129 S.Ct. 1937; 2009 U.S. Lexis 3472 (May 18, 2009), a recent decision that sheds more light on Twombly.
Andrée explains that in Twombly the United States Supreme Court held that
to survive a motion to dismiss a complaint must contain 'enough facts to state a claim to relief that is plausible' and must suggest a 'right to relief above a speculative level.' 'Labels and conclusions,'naked assertion[s]' without ' further factual enhancement,' or 'a formulaic recitation' of the elements of a cause of action will not survive a motion to dismiss.
She goes on to explain the impact of Iqbal on the way plaintiffs must draft a complaint:
Iqbal removes all doubt as to the applicability of the Twombly pleading standard: it applies in all federal civil cases. Courts, such as the Sixth Circuit, that have inclined towards limiting Twombly to expensive, complex cases involving massive discovery can no longer do so.
[Footnotes omitted.]
You might being saying to yourself, "those decisions mean nothing to me. I practice in state court." Well, one Tennessee appellate court "has already given Twombly a most favorable nod, finding it 'consistent with Tennessee law and therefore recogniz[ing] its applicability.'" Hermosa Holdings Inc. v. Mid-Tennessee Bone and Joint Clinic P.C., Tenn. Ct. App. No. M2008-00597-COA-R3-CV (March 16, 2009).
I encourage you to read Andrée's article to learn more about this important issue.
