Twombly - What it Means.
Why should you care about the decision of the United States Supreme Court in Bell Atlantic Court v. Twombly , 127 S. Ct. 1955 (2007)?
Because it changed the rules of pleading in federal court and, because Tennessee looks to interpretations of the federal rules to interpret its own similar rules, it will be raising its head in Tennessee state court.
What is the change? Most of us have assumed that a complaint need only contain "a short plain statement of the claim showing that the pleader is entitled to relief and that, at the motion to dismiss stage, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U. S. 41 at 45–46 (1957); Smith v. Lincoln Brass Works, 712 S.W.2d 470, 471 (Tenn. 1986).
No more. Now a plaintiff must show from the facts alleged that the claim is "plausible." Conely has been overruled. It doesn't take much imagination to see what this does to the pleading requirements in complex cases.
To drive the point home a little harder: the opinion has been cited by other courts over 2000 times in the last 17 months.
So, what is a plaintiff's lawyer to do? Read the opinion, understand that it does not only apply to Sherman Act claims, assume that it will not be an issue in the typical intersection wreck case, and assume that it will be an issue in any complex tort case and all business litigation cases excepts a suit to collect on a note. Then, do an appropriate factual allegation and plead accordingly.
Scary stuff.
Back to the past...eh? Old chancery pleading was this way....nasty, political lawyering always trumped justice and fairness....I am hopeful that our Supreme Court will recognize the regressive nature of this trend and hammer it....one more good reason to stay away from federal court.
You guys going to Knoxville....call me if you are....731.234.1536...we'll be tailgating at AG Campus.
Robert
P.S. Already seeing it in nursing home cases 'before' you can even get initial discovery....but no trial court has agreed so far...one will soon, I predict.