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Thursday, December 19, 2013

Pleading catch-22

This  recent Seventh Circuit case is mainly about substantive First Amendment/public-employee law, but it has a neat hidden pleading component. The plaintiff was a guidance counselor and girls' basketball coach at a high school outside Chicago; he was fired when he self-published a book on relationship advice titled "It's Her Fault" (the title kind of gives away the content). The Seventh Circuit affirmed a 12(b)(6) dismissal of his First Amendment claim; although his speech was on a matter of public concern (contra what the district court had held), he lost out in the Pickering balance because the school could reasonably believe he no longer could function effectively as a school counselor.

Here is where it gets Civ Pro-ish. The plaintiff apparently tried to make a detailed pleading; it quoted at length from the book and the written charges that the school board adopted in firing him and attached both the book and the charges as exhibits to the complaint. The court of appeals relied on these exhibits in affirming dismissal. The plaintff argued that a court only should perform a Pickering balance on a full record, and the court agreed that ordinarily Pickering is more appropriate after an opportunity for discovery. But in this case the court felt comfortable deciding on the complaint alone because it was so detailed. Everything needed for the analysis--the book and the board's stated reasons for the firing--were right there in the complaint. In other words, the plaintiff pled himself out of court, by including adverse allegations. Of course, had he provided less detail or not included those exhibits, the school board would have argued that there was not sufficient factual content to show that his speech was protected.

So what should a plaintiff do?

Posted by Howard Wasserman on December 19, 2013 at 09:31 AM in Civil Procedure, Howard Wasserman | Permalink


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You are correct that I am unreasonably attached to an pre-Twiqbal idea of 12(b)(6) dismissal, likely rooted in my long-ago days of practice. Still, the approach the Seventh Circuit panel took seems to exist in some strange, intermediate space between motion to dismiss and summary judgment standards, with respect to the role of law versus facts. This, in turn, puts plaintiffs in a bind (as you point out) in terms of determining appropriate pleading practices at the 12(b)(6) stage.

Posted by: Susannah Pollvogt | Dec 19, 2013 12:41:01 PM

I've got some family members in the legal field right outside of Chicago and they mentioned this case to me the other day. Crazy!

Posted by: Jonathan Stevens | Dec 19, 2013 12:18:33 PM

Interesting take, although I'm not sure the Court would agree that 12(b)(6) is an "extraordinary remedy" after Twiqbal. The other argument in favor of what the court did, I suppose, is that no discovery is needed--the plaintiff already has everything he's needs, so this is not a case where the key information is in the defendant's exclusive control.

Posted by: Howard Wasserman | Dec 19, 2013 11:16:15 AM

This is fascinating. Looking at the precedent the court relied on, the "principle" seems to be estoppel-ish. If plaintiff presents and relies on information outside the four corners of the complaint, then she cannot complain about the consequences of the court also relying on that information. But this seems to under appreciate the role of 12(b)(6) dismissal as an extraordinary remedy designed to weed out baseless claims that cannot be resuscitated by discovery. Instead, it turns dismissal into a method of punish plaintiffs for what the court considers inartful pleading.

Posted by: Susannah Pollvogt | Dec 19, 2013 9:58:35 AM

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