Bell Atlantic: The most important Supreme Court case you’ve never heard of.

This entry likely falls into the Law Geeks Only category, so please keep that in mind before reading any further.

FindLaw has this fine essay from Columbia lawprof Michael Dorf regarding the effects of Bell Atlantic Corp. v. Twombly, which to date is by far the most heavily cited decision from the U.S. Supreme Court’s last term. The case’s importance lies in the fact that it addresses the standards of pleading that a plaintiff must satisfy to survive a defense motion to dismiss.

This should be very simple. You commence a lawsuit by filing a document called a complaint. The rules of civil procedure provide that a federal court complaint need only contain “(1) a short and plain statement of the grounds upon which the court’s jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks.” Fed. R. Civ. P. 8(a). If the standard appears easy to meet, that’s because an easy standard is exactly what the rule’s drafters wanted.

The rules also provide that a complaint can be dismissed right out of the box on a motion to dismiss for “failure to state a claim upon which relief can be granted[.]” Fed. R. Civ. P. 12(b)(6). Before Bell Atlantic, the Supreme Court had ruled that such motions are disfavored and should be granted only where “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Historically, 12(b)(6) motions have been directed to complaints that provide the defendant with no notice at all of the basis for the claim, or complaints based upon a nonexistent cause of action. For instance, if the facts in the complaint reveal that the plaintiff is seeking money damages for breach of a promise to marry or alienation of affection, the complaint would be dismissed because (in the vast majority of jurisdictions, at least) such “amatory” causes of action no longer exist.

Bell Atlantic was a private class action antitrust lawsuit based on alleged violations of the Sherman Act. The Supreme Court’s 7-2 majority expressed doubts about the Conley test cited above, and strongly suggested a heightened standard for pleading in conspiracy-based antitrust cases. But, as Prof. Dorf points out, the majority denied imposing any enhanced requirements even though it pretty clearly did just that. So, if the Court didn’t impose heightened pleading standards for antitrust cases, did it impose a new standard for all civil cases? Has the “notice pleading” standard of Rule 8(a) been replaced by some sort of “plausibility” test?

These are the questions vexing the lower federal courts, which have cited Bell Atlantic nearly 500 times in the short time since the decision was announced. Prof. Dorf writes:

The hundreds of lower court opinions citing Twombly take a variety of positions on the meaning of the case. The lower court judges all agree, however, that Twombly does not impose a heightened pleading standard–because the Supreme Court said it was not imposing such a heightened standard.

Some lower court opinions point to Erickson in support of the proposition that Twombly also did not change the basic rules of notice pleading. Other courts, however, have understood Twombly as requiring that henceforth all complaints in all cases must satisfy a plausibility standard. Highly implausible allegations demand additional detail in pleading, on this view. Still other courts have puzzled over whether Twombly can be confined to the antitrust context, or at least to conspiracy cases.

And don’t think you’re immune from this nonsense just because your litigation practice is limited to state courts. Most states, mine included, have adopted the Federal Rules of Civil Procedure with only minor changes. Here in Colorado, the courts regularly rely on federal court decisions in interpreting the state version of the civil rules. In all likelihood, the confusion that Bell Atlantic brought to the federal system will slop over to state civil justice systems as well.

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