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Specter Proposes Return to Prior Pleading Standard
The National Law Journal
July 24, 2009
Congress is preparing to wade into the growing debate over the pleading standard for civil lawsuits, after two recent Supreme Court decisions effectively upended long-standing precedent.
Sen. Arlen Specter, D-Pa., filed legislation Wednesday designed to return the standard to what it was prior to 2007, when the Court handed down its ruling in Bell Atlantic Corp. v. Twombly (pdf). That case and another -- Ashcroft v. Iqbal (pdf) from the most recent term -- have raised the standard that pleaders must meet to avoid having their cases quickly tossed.
Specter, in remarks prepared for the Senate floor, accused the Court's majorities of making an end run around precedent with the two recent cases.
"The effect of the Court's actions will no doubt be to deny many plaintiffs with meritorious claims access to the federal courts and, with it, any legal redress for their injuries," Specter said. "I think that is an especially unwelcome development at a time when, with the litigating resources of our executive-branch and administrative agencies stretched thin, the enforcement of federal antitrust, consumer protection, civil rights and other laws that benefit the public will fall increasingly to private litigants."
At issue is how specific a pleading must be under the Federal Rules of Civil Procedure. Rule 8 requires that a complaint include "a short and plain statement of the claim showing that the pleader is entitled to relief," while Rule 12 allows for the dismissal of complaints that are vague or that fail to state a claim. Under Iqbal, a 5-4 decision written by Justice Anthony Kennedy, many courts are now requiring more specific facts that, plaintiffs lawyers say, aren't often available until discovery.
Specter's bill (pdf) directs federal courts to interpret the rules as the Supreme Court did in a much earlier decision, Conley v. Gibson (1957). The bill falls within the jurisdiction of the Senate Judiciary Committee and, if considered, would likely be a lightning rod for debate among plaintiffs lawyers, consumer groups and businesses.
This article first appeared on The BLT: The Blog of Legal Times.
