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Sunday, November 24, 2019

A pleading question

The Comcast argument from two weeks ago featured competing hypotheticals designed to show proximate cause under § 1981, but instead showed the problem of pleading oneself out of court. Following some comments on my prior post, I have been thinking about both (which I would like to use in Civ Pro next semester).

Hypo # 1: African-American not hired by law firm; receives letter saying "You're African American and we don't hire non-lawyers."

Option # 1: Complaint quotes the "You're African-American" language of letter but nothing else. I think the Complaint passes muster, although the defendant may be able to offer the full letter on a 12(b)(6), which would change the analysis.

Option # 2: Complaint quotes entire letter (or attaches letter as written instrument). Complaint fails unless plaintiff alleges fact rebutting the non-lawyer piece of the letter. We would say P has pleaded himself out of court, but including a fact that undermines his claim.

Hypo # 2: Hotel refuses to rent room to African-American, telling him "We don't rent to African-Americans and we are out of rooms."

Option # 1: Complaint only quotes the first statement. Again, I think the complaint passes muster.

Option # 2: Complaint quotes both statements. I think the Complaint would fail for the same reason as the first case. A commenter suggests otherwise, because it may be that the hotel was lying about there being no rooms. But must the plaintiff allege a fact rebutting the statement that there are no rooms, at least on information and belief, to show that it might be false? Just as the lawyer-applicant must allege facts rebutting non-lawyerness as the basis for not hiring? If the "reasonable alternative explanation" language of Iqbal does any work, this would be it--the complaint provided the alternative explanation. Or does drawing all reasonable inferences for the plaintiff allow for the inference that the hotel is lying about the adverse fact?

Posted by Howard Wasserman on November 24, 2019 at 11:15 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink

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