Tuesday, February 05, 2008
The Mystery of Twombly Continues
Today, the Third Circuit decided Phillips v. County of Allegheny (a Section 1983 case) in an opinion written by Judge Nygaard. The opinion is the latest to expound upon the Supreme Court’s pleading opinion of last term, Bell Atlantic v. Twombly. It is worth a read if for no other reason than that it shows just how much the circuits continue to struggle to understand what Bell Atlantic means.
In a nutshell, the Third Circuit says that Bell Atlantic applies to the general pleading requirements in two ways: (1) it added new gloss to Rule 8 pleading by requiring at least some facts and by requiring that those facts “raise the right to relief above the speculative level”; and (2) it buried Conley’s “no set of facts” language.
The Third Circuit is almost certainly correct about the second point. As I have argued previously, Bell Atlantic’s disapproval of Conley is not restricted to antitrust.
The Third Circuit’s first point is more interesting, in part because it results in (at least in the Third Circuit's view) no substantive change to Rule 8 at all. More or less facts might be required depending upon the circumstances, but, in general, Rule 8 requires—and has always required—grounds showing entitlement to relief.
If that is all Bell Atlantic means outside of antitrust (and I have come to believe that there are decent arguments in support of that position), then Bell Atlantic really was unremarkable. (Or quite remarkable, in that the Court turned that very simple point into a cloud of obscurity.)
I do think that the Third Circuit’s conclusion that Bell Atlantic’s “plausibility standard” informs the general pleading standard is an unnecessary complication of the Third Circuit’s reasoning. A better reconciliation of “plausibility” and Rule 8 would have returned to the Third Circuit’s initial insight: context matters. In the unique circumstances of antitrust, inferential allegations of conspiracy must contain facts showing the conspiracy was plausible in order to show entitlement to relief. By contrast, in a garden-variety negligence case, for example, plausibility is not required; rather, even a bare averment of “negligently drove” may need no factual elaboration on the question of negligence in order to show entitlement to relief.
I thought a bibliography might be helpful for those interested in Bell Atlantic and its continuing interpretation. If I have left one out, please let me know.
ARTICLES & ESSAYS
- Keith Bradley, Pleading Standards Should Not Change After Bell Atlantic v. Twombly,” Nw. U. L. Rev. Colloquy (2007)
- Scott Dodson, “Pleading Standards after Bell Atlantic v. Twombly,” Va. L. Rev. In Brief (2007)
- Brian T. Fitzsimmons, “The Injustice of Notice and Heightened Pleading Standards for Antitrust Conspiracy Claims: It is Time to Balance the Scale for Plaintiffs, Defendants, and Society,” Rutgers L.J. (2007)
- Kendall Hannon, Note, “Much Ado about Twombly: A Study on the Impact of Bell Atlantic v. Twombly on Rule 12(b)(6) Motions,” Notre Dame L. Rev. (forthcoming 2008)
- Max Huffman, “The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims,” J. of Bus. & Empl. L. (forthcoming 2008)
- Allan Ides, “Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice,” F.R.D. (forthcoming 2008)
- Amanda Sue Nichols, Note, “Alien Tort Statute Accomplice Liability Cases: Should Courts Apply the Plausibility PLeading Standard of Bell Atlantic v. Twombly When Balancing Plaintiffs' Rights against the BUrdens of Frivolous Lawsuits?,” Fordham L. Rev. (forthcoming 2008)
- A. Benjamin Spencer, “Plausibility Pleading,” B.C. L. Rev. (forthcoming 2008)
- Suja Thomas, “Why the Motion to Dismiss is Now Unconstitutional,” Minn. L. Rev. (forthcoming 2008)
- Mark Botti, “Monday’s Decision in Bell Atlantic v. Twombly,” SCOTUSblog (2007)
- Bruce Boyden, “Twombly: Trimming Some of the Possible Worlds,” Concurring Opinions (2008)
- Scott Dodson, “Prof. Scott Dodson on Bell Atlantic” Civ. Proc. Prof Blog (2007)
- Scott Dodson, “Dodson on Erickson,” Civ. Proc. Prof Blog (2007)
- Michael Dorf, “The End of Notice Pleading?,” Dorf on Law (2007)
Einer Elhauge, “Twombly – The New Supreme Court Antitrust Conspiracy Case,” Volokh Conspiracy (2007)
Amy Howe, “More on Yesterday’s Decision in No. 06-7317, Erickson v. Pardus,” SCOTUSblog (2007)
Marty Lederman, “Is Twombly the Death-Knell for Notice Pleading?,” SCOTUSblog (2007)
Mike O’Shea, “How Cautionary is Erickson v. Pardus? (with an excursus on Commerce Clause disillusionment),” Concurring Opinions (2007)
Randy Picker, “Closing the Doors to (Antitrust) Plaintiffs?,” U. Chi. Faculty Blog (2007)
Posted by Scott Dodson on February 5, 2008 at 11:40 PM | Permalink
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Over at Prawfsblawg, Scott Dodson has a post up commenting on the latest judicial decision to attempt to make sense of the Supreme Court's civil procedure blockbuster last term, Bell Atlantic v. Twombly. Twombly held, seemingly contrary to what courts... [Read More]
Tracked on Feb 6, 2008 11:47:43 AM
If you are interested in more reading on Twombly, I have a forthcoming paper that talks about it, along with the other three antitrust cases from the 2006 Term. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091498 (typo and all in the title).
Posted by: Randy Picker | Feb 9, 2008 4:34:07 PM
Comment bleg for some free legal research--I'm working on a 12(b)(6) motion for a legal malpractice action, in which the Complaint simply alleges that the defendant(s) breached their duties of care, competence, etc., causing injury to plaintiffs. There are literally ZERO specifics (i.e., zero facts) as to what the defendants did or should have done. Does anyone know of a decision (from any court) throwing out a malpractice complaint under Twombly in these circumstances?
Posted by: anonymous | Feb 11, 2008 1:19:28 PM