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.


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John Davidson - July 4, 2009 10:11 AM

There is only one solution to the sort of judicial activism shown by Ashcroft (which is not a case about pleading, whatsoever) and that is to plead evidence, not to attempt to distinguish between "facts" and conclusions. All facts are conclusions. Testimony by a witness that the light at an intersection was red is a conclusion.

Over 100 years ago Shipman wrote that the rule against pleading evidence was a rule so elementary in its kind, and so well observed in practice, that the cases never mentioned such. How wrong he was.

Now the Supreme Court has amended, judicially, Rule 8 to require the pleading of evidence. The article cited is wholly unhelpful, for the distinction drawn by the court between conclusion and facts is meaningless and cannot be applied by any practioner. All facts are conclusions. Had the plaintiff in Ashcroft plead that witness x was present and heard Ashcroft give the order, it would have still been dismissed by the Court as a conclusion, for the majority was going to dismiss the case, regardless.

What is helpful are all the old books on common law pleading which are now online Google books, for free. These books also include many sample forms or declarations. A good start is Joseph Story's Selection of Pleadings in Civil Actions.

Citing to such form is a good way to support you pleading, if attacked by motion. For example, there is a common law cause of action for misrepresenting the creditworthiness of another person or business. Recently, a New York Court approved such a claim, citing to the form book.

A second excellent source is pleading as suggested by Richard H. Friedman. Buy his books

Further, plaintiff's need to recall that a complaint that states too many facts cannot be dismissed for failure to state a claim. It can be attacked in other ways, but not by a 12(b)(6) motion.

Third, as to matters of motive and circumstantial evidence, such should be plead in the manner that Albert Moore advocates organization of cross examination, by pleading the premise on which the inference is based.

For example, it is well known that Ashcroft is a member of a fundamentalist religious sect. The plaintiff should have plead the beliefs of that sect, especially as they pertain to the issues, that Ashcroft was a member, and thus that Ashcroft's state of mind and actions were in conformity.

There is a recent law review article that talks about how to plead corporate greed in this manner.

Last, plaintiffs should on longer join all defendants at the outset in a case. Suit should be filed against a party whose liability is clear and discovery used to obtain the facts necessary to plead thereafter.

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