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Sunday, November 17, 2019

Pleading yourself out of court and other thoughts on Comcast

Some thoughts after listening to arguments in Comcast, where the question was the causation standard ("but-for" or "motivating factor") for a § 1981 action.

• I did not understand the  argument from respondent (represented by Erwin Chemerinsky) that the standard could be motivating factor at pleading and but-for at trial or summary judgment. A motion under 12(b)(6) is supposed to ask whether, if everything the plaintiff alleges is true, the plaintiff can prevail--under whatever the controlling legal standard will be. It makes no sense--especially given the spin in Twiqbal--to allow a pleading to pass scrutiny when its facts could not meet the applicable standard.

The argument and questions seemed to conflate this with the distinct, and unremarkable, proposition that a plaintiff need not plead all the evidence she will have or use to prove her or claim. Or that a plaintiff should only be expected to plead what she can know or learn pre-discovery (an idea to which Justices Gorsuch and Kavanaugh, as well as Kagan, seemed receptive). Or that a plaintiff can prove her case with different evidence and different rationales than she pleads it.

• There were competing hypotheticals that illustrate the idea of a plaintiff pleading herself out of court, but that do not necessarily grapple with the problem here. The first, proposed by ASG Morgan Ratner, involves a law-firm applicant who receives a rejection letter saying "you're African-American and we're not hiring you because you never went to law school;" Ratner argued there would be no plausible claim of discrimination, because it was not plausible that the law-firm plaintiff could have been hired in any event. The second, proposed by Chemerinsky, is a plaintiff told by a hotel that it will not give him a room because no rooms are available and the hotel does rent to African-Americans; he argues that those allegations should be sufficient to survive a motion to dismiss.

The problem is that the hypos do not reflect how pleading works, because the fundamental nature of pleading and 12(b)(6) motions is that they are one-sided--only the facts alleged by the plaintiff are considered and the plaintiff can limit her pleading to those true facts (or facts she believes supportable on reasonable inquiry) that support her case. There is no obligation to plead adverse facts. And, as several justices and Chemerinsky reiterated during the argument, no need to anticipate and rebut the contrary facts the defendant may present.

So how would a plaintiff plead each of those cases? I imagine the rejected lawyer would plead that he was denied a job and the rejection letter mentioned his being African-American; the hotel guest would plead that they told him they do not rent rooms to African-Americans. A motion to dismiss would be denied, because those facts, if true and without more, could plausibly show that race was a but-for cause.

Both complaints are incomplete, as they withhold facts favorable to the defendant. But the defendant cannot introduce those facts at 12(b)(6). It must wait for summary judgment. Or maybe it could answer, add the additional facts (not a lawyer or no room at the inn), then move under 12(c) for judgment on the pleadings. It could prevail at either stage, because there is a non-discriminatory reason for its action and the result would have been the same--a point Chemerinsky seems to concede.

Had either plaintiff pleaded complete information (or had the law-firm plaintiff attached the rejection letter to the complaint), I think both complaints should be dismissed, because the plaintiff had "pleaded himself out of court." A defendant could move under 12(b)(6) and say "look at the four corners of the complaint, it shows the plaintiff cannot state a claim because it is not plausible that discrimination, as opposed to his not being a lawyer, caused his non-hiring, because the facts in the complaint show he was not hired because he is not a lawyer." Which, again, is as it should be. If the plaintiff offers and does not contest facts of a legitimate non-discriminatory reason for the action, his claim should fail.

Here is a different, interesting procedural question: Suppose the law-firm plaintiff just pleaded that the rejection letter contained racially motivated language. Could the defendant on a 12(b)(6) present the letter to give full context to what the plaintiff was told and still have it be treated as a 12(b)(6) (rather than converted to summary judgment)? The letter is not part of the four corners of the complaint. But the complaint references the letter, so the letter itself provides context. The Twombly Court did this with the magazine feature on Dick Notebaert in which Notebaert said competition was a way to turn a quick buck, but that didn't make it right.

• There was some discussion of Summers v. Tice (the two-hunters case from torts) for the idea that a claim can succeed when two plausible causes are presented showing liability, either of which was a but-for cause. But Summers does not seem the appropriate analogue here. The issue in Summers was that either of two people engaged in unlawful actions that might have caused the plaintiff's death--because either could have unlawfully caused the death, either could be liable, so both could be liable (and we will leave it them to sort out liability between them). The issue in the hypos is that one person engaged in two actions that caused the non-hiring or non-rental--one of those acts was lawful, the other was unlawful. So in Summers, the result (death) was the same and someone must be responsible because it resulted from one of two unlawful acts. In the hypos, the result (not hired/not given a room) was the same, but it resulted from one of two acts, one of which was lawful.

• Breyer and Gorsuch pushed that a plaintiff can satisfy 8(a)(2) by pleading mental state on information and belief. Gorsuch and Kavanaugh also suggested that discrimination cases should not be easily dismissed at the pleading stage. Such comments suggest a potential opinion loosening pleading standards. I wait to see if it is something that might become part of the Civ Pro course.

Posted by Howard Wasserman on November 17, 2019 at 11:50 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Very interesting post, Howard.

Posted by: Orin Kerr | Nov 17, 2019 11:41:39 PM

"Here is a different, interesting procedural question: Suppose the law-firm plaintiff just pleaded that the rejection letter contained racially motivated language. Could the defendant on a 12(b)(6) present the letter to give full context to what the plaintiff was told and still have it be treated as a 12(b)(6) (rather than converted to summary judgment)? The letter is not part of the four corners of the complaint. But the complaint references the letter, so the letter itself provides context."

I agree with you about the oddity of Chemerinsky's argument, though he seems to think that there's some precedent that supports it (and that also boxed him into having to concede having to ultimately prove but-for). On your interesting procedural question, I think the rule (at least in the Second Circuit, where I won a case under this rule) is that documents that are incorporated by reference in a complaint, even if not attached, or documents that are integral to a complaint's allegations, may be considered on a motion for judgment on the pleadings if the plaintiff doesn't dispute that the defendant is supplying the real documents. It's perhaps more appropriate to make a 12(c) motion on the pleadings, including an answer with the documents attached, than to attach the documents to a 12(b)(6) motion to dismiss.

On the hotel hypothetical, I think Chemerinsky's view is that even if you pleaded the hotel manager's claim that there were no rooms, it's of course possible that the manager was lying and so the case can't be dismissed on his say-so (whereas, if the plaintiff pleads she didn't attend law school or implicitly admits it by not denying the firm's assertion she didn't, that's the end of that case). If at trial there turn out to be no rooms, he might admit defeat, though Breyer got him to half-retract his concession and say there could be but-for on a Summers v. Tice theory. I am not sure your distinction of Summers is correct; perhaps Summers could extend to a tort case where, e.g., a hunter negligently shoots his companion at just the same moment that a wildcat he was trying to shoot instead fatally bites him. I don't know why that case should come out differently.

Posted by: Asher | Nov 17, 2019 10:19:56 PM

Very interesting. The point is that we tend indeed, to separate facts from mental state. It is not really so. One can't separate them necessarily. It is a matter of degree typically. So, Breyer and Gorsuch are right as mentioned in that post.One can claim facts, and anyway, unless explicitly, head-on admitted by defendant, it would always be on the plaintiff to prove the mental state. But, pretty complicated, for the time being.

Anyway, this is not really the issue here. The issue is not sole reason. But rather, effective reason. If the effective reason, was discrimination ( for not contracting) then, they are entitled for remedy sought. Because the statute dictates: " make and enforce contracts". This is not theoretical right. It bears outcome. Tangible outcome and ability and results. So,this was the intent of the Congress ( granting rights to slaves after the civil war). This is the purpose of the law.

All one needs to do: is to prove, that effectively, discrimination barred him from contracting. If there are other additional reasons, it doesn't matter. But proving discrimination, and as effective reason, among others or not.


Posted by: El roam | Nov 17, 2019 5:29:37 PM

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