Tuesday, April 05, 2011
Pleading in the Duke lacrosse opinions
Following on yesterday's post on last week's district court decisions on the 12(b)(6) motions in the Duke lacrosse lawsuits: The opinionss, although not formally "pleading decisions," reveal some interesting things about pleading and the pleading process.
First, the court relied on Ashcroft v. Iqbal and purported to apply the two-step approach of disregarding conclusory allegations and considering whether the remaining well-pled facts show a plausible claim for relief--that it is plausible (somewhere between possible and probable) that, if the facts alleged prove true, the plaintiffs' rights were violated. But despite speaking in Iqbal terms, it was, in spirit, a very un-Iqbal-like opinion. The court allowed claims to go forward that featured a lot of conclusory/bald language, especially regarding allegations of conspiracy and agreement, the types of allegations that are supposed to be disregarded under Iqbal. He also disregarded (despite observing) holes in the pleadings as to a number of claims. For example, the unindicted players never alleged the harm or injury suffered as a result of much of the university's tortious conduct; the court did not view that as a defect, instead simply reminding the plaintiffs that they would bear the burden of proof on that issue at trial. For another example, the unindicted players oftenm failed to identify which players were subject to which misconduct or which harms or which players were present at which incidents; they treat themselves as a collective throughout the complaint. The court tries to break this out as to a fraud claim against Duke and various Duke officials; but it does not do so as to the non-fraud (and non-heightened pleading) claims. Indeed, the claims that did fail here typically went down for legal insufficiency rather than for factual insufficiency.Second, the tenor of the opinion (again, despite the citation to and reliance on Iqbal) was that pleading should not be a major hurdle; these claims are pled "well enough," the court will revisit all of this, with greater scrutiny, at summary judgment and beyond, and the plaintiff eventually will bear a meaningful burden of persuasion, just not necessarily now. This may be the normatively best approach to pleading if we are creating a system from scratch. But it is not consistent with the direction in which the Supreme Court has been trying to push lower courts since Twombly and Iqbal. On the other hand, maybe this just goes back to how much of an effect Twiqbal actually has or can have. District courts still have a lot of leeway and a lot of discretion in how they approach complaints, in how rigorously they scrutinize complaints, and in how much they want to leave for the next steps in litigation. A court looking to preserve much of the meat of a complaint (as the court did with most of the claims from the indicted players) will find a way to do so, even in an Iqbal world.
Third, the court called out plaintiffs' attorneys in both cases for filing abusively long, over-detailed, and over-heated complaints. These were the types of long, prolix complaints that could draw a successful Motion for a More Definite Statement. And they are the types of long, prolix complaints that one might immediately assume are long and prolix in order to hide obvious legal defects in the claims. The indicted players' complaint ran more than 150 pages and contained 570 numbered paragraphs; the unindicted players' complaint was 225 pages with 751 numbered paragraphs. Both told the story of Duke lacrosse in great, but largely legally unnecessary, detail, with overheated rhetoric, deliberately provocative statements and subject headings, and heavy use of caps, bold, and italics. These are among the worst example of what Elizabeth Thornburg has called "pleading as press release"--using the complaint to score political and public-relations points and spark media outrage, as opposed to trying to frame a case for litigation. I would have loved to have used these complaints as samples in civ pro, but they are so dense as to be useless (other than as a demonstration of what not to do).
To his credit, Judge Beaty showed that he was unhappy with it. In the Conclusion to the opinion in Carrington, he wrote:
Having undertaken this comprehensive review of the claims asserted in this case, the Court is compelled to note that while § 1983 cases are often complex and involve multiple Defendants, Plaintiffs in this case have exceeded all reasonable bounds with respect to the length of their Complaint and the breadth of claims and assertions contained therein. The Western District of Virginia noted similar concerns recently in a § 1983 case pending there, stating that: “There is no question but that [the] Complaint is extravagant not only in its length (29 pages and 114 numbered paragraphs), but also in its tone, containing numerous underlinings and italics for emphasis and provocative bold headings, such as, “Part of a Larger Conspiracy?” and, “Things Go From Bad To Worse”. Surely Iqbal does not require such spin and one wonders what counsel’s aim is in drafting such a pleading. It certainly does not help to persuade the court.” Jackson v. Brickey, No. 1:10CV00060, 2011 WL 652735, at *12 n.4 (W.D. Va. 2011). These concerns are substantially greater in the present case, where Plaintiffs have seen fit to file not 29 pages and 114 numbered paragraphs, but 225 pages and 751 numbered paragraphs, most of which are not relevant to the actual legally-recognized claims that may be available. As in the other “related cases,” Plaintiffs’ potentially valid claims risk being lost in the sheer volume of the Amended Complaint, and Plaintiffs’ attempt at “spin” is wholly unnecessary and unpersuasive in legal pleadings. Plaintiffs’ approach has required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of Plaintiffs’ claims, resulting in this rather extensive Memorandum Opinion. The Court trusts that, going forward, all of the parties will reduce both the volume of filings and the rhetoric contained therein, and will proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.
He was a bit less strident in Evans (probably because there is more overall merit to their claims), but still not pleased with abusive pleadings:
Having undertaken this comprehensive review of the claims asserted in this case, the Court notes that this case, like many § 1983 cases, is complex and involves multiple Defendants, requiring significant analysis, resulting in this rather extensive Memorandum Opinion. The Court notes that of the three “related cases,” see supra note 1, this case involves the most significant alleged constitutional deprivations, but was commendably more concise. However, a complaint of over 150 pages, with over 570 numbered paragraphs, as in this case, is still beyond what is necessary or appropriate under Rule 8. Review of this case, and particularly of the related cases involving complaints that are 2 and 3 times as long, required the Court to undertake the time-consuming process of wading through a mass of legally unsupportable claims and extraneous factual allegations in an attempt to “ferret out the relevant material from a mass of verbiage.” 5 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1281 (3d ed. 2004). The Court has nevertheless undertaken this process and has considered each of the claims in all three cases. Going forward, the parties are encouraged to make every effort to reduce the volume of filings and to avoid unnecessary rhetoric, and to proceed on the remaining claims in a direct, professional manner, without requiring unnecessary involvement from the Court.
This does not reflect any formal sanction, of course. But we can hope that the lawyers are at least somewhat cowed for having been called out by a federal judge in this way.
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