Pleadings, Generally
From LegalLanding
For insight into the current state of FRCP Rule 8, see The Twombly Standard.
Under the early common law, an action revolved around the pleadings. The emphasis on knowledge of the writs and forms of actions put a premium on expertise in legal vocabulary and strategy. Although this enriched the legal profession, and was thus popular amongst lawyers, truth and justice were not the focus of proceedings. This type of pleading no longer exists.
A significant change began in New York in the 1800s, and took the form of code pleading, or fact pleading. Code pleading was the American lawyers’ revolution against English common law pleading and its technicalities. It took the focus away from technical terms and simplified the process of starting and responding to an action. Still, code pleading requires factual recitations in a complaint, and there is still the possibility that an action could become a battle of the pleadings. Code pleading is still used in some American jurisdictions, but the federal judicial system and many states have moved in an even more liberal direction.
The Federal Rules of Civil Procedure, drafted by Charles Clark, dean of the Yale Law School, were passed in 1938 and created the modern system of notice pleading. Notice pleading is founded upon a so-called “liberal ethos” which prefers the disposition of cases on their merits, by jury trial, after full disclosure through discovery. The basic principle of notice pleading is that a complaint should give fair notice to the other party of what the claim is, and the action can proceed from there. Notice pleading, by that measure, requires much less specificity than code pleading, where more facts are initially required. Under notice pleading, a complaint need only set out a “short and plain statement showing that the pleader is entitled to relief,” and the complainant will then be on the way to his day in court. The facts will come later with the help of liberal discovery rules.
Pleading is no longer about the facts; it is about getting the action going. Notice pleading, as a result, is very forgiving. At common law a complainant had to pick a form of action and hope that it was the right one. Under code pleading a complainant has to stand on the gravamen of his complaint, and there is very limited ability to join claims. Notice pleading, on the other hand, seeks efficiency, and thus allows alternative pleading, inconsistent pleading, and joinder of claims.
How liberal is the system of notice pleading? A complaint only needs to satisfy the requirements of Rule 8(a)(2) (aside from claims controlled by FRCP Rule 9), that it contains “a short and plain statement of the claim showing that the pleader is entitled to relief.” Whether a complaint does so can be tested by a FRCP Rule 12(b)(6) motion to dismiss for failure to state a claim. In Conley v. Gibson (1957), the Supreme Court broadly interpreted Rule 12(b)(6). The court ruled that 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 that would entitle him to relief. The claimant is not required to set out in detail the facts upon which he bases his claim; he is only required to give the defendant fair notice of the claim and the grounds it rests upon. This reasoning was reinforced in Swierkiewicz v. Sorema (2002), in which the Supreme Court held that a plaintiff claiming employment discrimination did not need to allege specific facts that would support an inference of the discrimination, even though those facts would be necessary at trial. It was enough for the purpose of the complaint to notify the defendants of the claims that they would face.
Some federal courts, though, have resisted notice pleading’s forgiving attitude toward deficient complaints. They argue that, due to the heavy costs of litigation and heavy caseloads they face, parties should not be put into discovery without a reasonable prospect that the plaintiff can make out a cause of action based on the complaint. The complaint needs allegations and specific facts in order to justify the burden that will follow if the action is allowed to proceed.
The federal rules always did require heightened specificity in pleading for certain claims. For example, Rule 9(b) requires that a complaint “must state with particularity the circumstances constituting fraud or mistake.” Rule 9(c) provides a similar requirement in order to deny a condition precedent. No other claims, though, require more than a “short and plain statement” in order to satisfy the federal rules. Nonetheless, the need for heightened specificity has been expanded beyond the bounds of Rule 9. In Ross v. A.H. Robins Company (1980), it was held that a plaintiff, when alleging securities fraud, must also allege enough facts to create a “strong inference” of knowledge on the part of the defendant. Rule 9(b), however, says that knowledge may be alleged generally.
It is unclear why heightened specificity should ever be required in a pleading, even for those claims singled out in Rule 9. Claims of fraud or mistake might be harmful to defendants’ reputations, but not necessarily any more so than claims of sexual harassment. A claim of fraud might be damaging to a corporation’s stock, but not necessarily any more so than a highly publicized products liability claim. Fraud might be difficult to prove without direct evidence of state of mind that can only be found during discovery, but that is a strange argument given that scienter can be pled generally, according to Rule 9(b). Perhaps it is out of tradition, but the federal rules limit specific pleading to only those claims.
It is possible that the Ross court interpreted the rules the way it did because certain types of actions will be more expensive than others, and it sought to weed out weak complaints when that would be the case. FRCP Rule 1, after all, directs that the rules should be interpreted to promote a speedy and inexpensive determination of all actions, and securities fraud case would be long and very expensive. However, Rule 1 also directs that the rules should be interpreted to promote a just determination, as well. Carving out exceptions and requiring more specific for some claims than others can have consequences. There might be decreased accessibility for plaintiffs, and there might be decreased efficiency for the judicial system as a whole. We might, again, also move closer to the old days of code pleading, making the action a battle of pleadings. Whatever the case, Congress ratified the Ross court’s decision when it passed the Private Securities Litigation Reform Act, codifying the requirement that a complaint should show a strong inference of knowledge in a securities fraud case.
A more general and widespread change to notice pleading came in Bell Atlantic v. Twombly (2007), an antitrust case. There, it was held that a complaint must allege enough facts to state a claim to relief that is plausible on its face in order to survive a 12(b)(6) motion. The court’s holding seemed to indicate that the circumstantial evidence of conspiracy shown in the complaint was not enough to give the defendants proper notification of the claims against them. However, circumstantial evidence is not supposed to rule out possibilities, just to make one possibility – here, conspiracy – possible. Judges are supposed to accept the factual allegations in a complaint as true when considering a 12(b)(6) motion. Pleadings are not supposed to be about weighing evidence.
The court might have had legitimate reasons to push evidentiary matters into the pleading stage of an action. Rule 8(a)(2) itself requires a pleading to show that the pleader is entitled to relief. That could be interpreted to require enough facts that, if believed, would raise a plausible claim for relief. This interpretation would seem to go against the basic liberal ethos of notice pleading, though. It is more likely that the court sought to save time and money by requiring specific facts in a complaint that, if pursued, would lead to litigation that could span years and cost immense amounts of money.
If Twombly was not meant to apply across the board, then it could be read more narrowly to hold that a complaint must be dismissed under Rule 12(b)(6) if, when pleading an antitrust conspiracy through allegations of parallel conduct, it does not allege enough factual matter to make the claim plausible. Still, antitrust claims are covered by Rule 8(a)(2), which requires only that a complaint give fair notice of the claim and the grounds upon which it rests.
Conley was not specifically overruled by Twombly, and two weeks later in Erickson v. Pardus (2007) the court denied a Rule 12(b)(6) motion to dismiss with no mention of plausibility. The Twombly court also said that Conley was merely misunderstood and misapplied, raising the possibility that the plausibility standard does only apply in cases that could tend to be long and expensive.
The rule in Conley, however, was treated as dicta in Twombly, so they would not have had to specifically overrule it, meaning that the plausibility standard does control pleadings. There is also a strong argument that Twombly did overrule the holding in Swierkiewicz, which relied on Conley. In Swierkiewicz, the court said that the plaintiff did not need to allege specific facts that would support an inference of the discrimination that he claimed. In Twombly, the court said that the plaintiffs needed to provide facts that would make the claim plausible on its face. Nothing comes to mind that would make the claim of conspiracy “plausible” other than specific facts supporting an inference of conspiracy.
To add to the confusion, Form 11 in the Federal Rules of Civil Procedure, an example of a complaint for negligence, is verified by FRCP Rule 84 to suffice under the federal rules. The complaint in Form 11, though, does not allege as much in the way of specific facts as Twombly would seem to require. Lower courts are unsure as to the current standards of pleading, raising the question of whether Conley or Twombly should control future determinations of Rule 12(b)(6) motions.