0:13

Welcome to the civil procedure podcast.

0:16

I am your host Thomas Mayne . And

0:18

this episode is about the

0:20

12, B six motion to dismiss

0:22

for failure to state a claim where we put

0:25

that motion in a broader

0:27

context, the 12

0:29

B six motion is responsible for

0:31

a relatively small share

0:34

of terminations in federal court.

0:36

It's a number below 5%.

0:39

However, the motion is important

0:42

symbolically and practically

0:45

symbolically. It's almost like a mascot

0:48

for a procedural system, or we could

0:50

invoke all sorts of metaphors here.

0:52

Maybe it's the courthouse doors

0:55

where either the doors of the courthouse

0:57

are on an electronic

1:00

sensor, such that they swing

1:02

wide open, welcoming you to the courthouse.

1:04

If you get anywhere near it, or the

1:07

courthouse doors could be so

1:09

heavy that you would need to hire a

1:11

weightlifter in order to

1:13

pry open the courthouse doors,

1:15

or they could be locked and you would

1:17

need to hire an especially proficient

1:19

locksmith in order to get

1:22

in the courthouse. That's this notion

1:24

of this symbolic importance

1:27

of the pleading standard. There are also

1:29

practical consequences. For

1:31

example, if the pleading system

1:34

is so cumbersome

1:36

or complicated or technical, that

1:38

one needs an attorney in order

1:40

to navigate it on done , that necessarily

1:42

means that would be litigants

1:45

who lack the resources or

1:47

wherewithal or grit

1:49

to find and retain

1:52

legal counsel simply

1:54

won't get justice. A

1:57

rigorous pleading standard

1:59

would also mean that you

2:02

run the risk in such a system

2:04

that certain litigants with

2:06

meritorious claims won't

2:09

be able to meet the pleading standard,

2:12

even though they would be able to prevail

2:14

in the case. Ultimately, if the litigation

2:17

were to proceed, that's a risk of

2:19

a higher pleading standard related

2:21

to that is some notion as profound

2:24

as the separation of powers, because

2:27

when laws create rights,

2:30

procedural systems are

2:32

supposed to be vindicating.

2:35

Those rights, assigning

2:37

responsibilities in accordance

2:39

with those rights and procedural

2:42

systems should be judged

2:44

on the extent to which they do. So

2:47

a pleading standard can interfere

2:50

with that. Now on the other side

2:52

course procedure, isn't just about

2:54

fairness to plaintiffs. It's also

2:56

about fairness to defendants pleading

2:59

standards that are rigorous

3:02

protect defendants from frivolous

3:04

cases, from cases that are

3:07

filed by litigants, who are trying

3:09

to use litigation as a shakedown

3:11

strategy, bringing these nuisance

3:13

claims just to get some settlement

3:15

value, higher

3:17

pleading standards, protect defendants

3:20

from those kinds of claims. I

3:22

want to put the pleading standard

3:24

that we have today into a historical

3:27

context that can be divided

3:29

into three phases.

3:32

Phase one would be before

3:35

the federal rules of civil procedure and phase

3:37

two would be the introduction of the

3:39

federal rules of civil procedure. And

3:42

phase three would be the contemporary

3:44

re-interpretation of the

3:46

federal rules of civil procedure. Phase

3:49

one, before there were federal

3:51

rules, procedure

3:53

was a sport, it

3:55

was precise, it

3:57

was technical, it was

4:00

complicated and difficult

4:02

to navigate. It was difficult

4:04

to navigate without a lawyer was difficult

4:06

to navigate with a lawyer. There

4:09

was jargon to be mastered

4:11

so many traps for the unwary.

4:14

One misstep, one mislabeling,

4:17

and you lose pleadings

4:19

were very strategic and they

4:21

played a central role

4:24

in the litigation process. The

4:26

federal rules of civil procedure

4:28

in phase two of our history here,

4:31

but an end to that, they wanted to end

4:34

the sporting theory of justice.

4:37

And in fact, they had a different perspective

4:40

on procedure generally,

4:42

rather than procedure being an

4:45

important part of litigation.

4:48

The federal rules, conceptualized

4:51

procedure, as something of a

4:54

necessary evil,

4:56

it was necessary in the sense that they

4:58

needed something, but it

5:00

was an evil in the sense that they didn't

5:03

want procedure to be interfering

5:06

with the merits of the underlying

5:08

cases. Cases should be

5:10

decided on the merits, not on

5:12

the mastery of some technical

5:16

or tactical maneuver

5:18

and the pleading standard. And the 12 B six

5:21

motion were indeed the mascot of

5:23

this new system. The

5:25

pleading standard required only

5:28

notice pleading on

5:30

the part of the plaintiff. We

5:32

have to be careful here because the use of

5:34

the word notice is a bit unfortunate

5:36

because we use the word notice

5:39

in another part of the course,

5:41

when we're referring to the

5:43

constitutional requirement of

5:46

notice to the defendant, that's

5:48

a different concept

5:51

they're certainly related, but I would use

5:54

kind of capital in notice

5:57

in that other context,

5:59

that's a term of art regarding

6:02

the constitutional requirement under the due

6:04

process clause. When we're talking

6:06

about notice pleading in this

6:08

sense for the 12 B6

6:11

, it's sort of notice with a lower

6:14

case and not a capital letter.

6:16

And the idea here is just

6:18

our general sense of notifying

6:21

somebody. And the notice

6:23

pleading standard was thought to

6:25

be very modest

6:28

in its demand. We don't

6:30

expect plaintiffs to do a tremendous

6:32

amount of legal homework

6:35

and identifying the nature of

6:37

their cause of action or invoking

6:39

the particular section of the statute

6:42

that gives them their claim. And

6:44

we don't expect them to do a lot of factual

6:47

homework. All you need to do is to

6:49

give the defendant a general sense

6:51

of what you're complaining about.

6:54

In fact, one of the common characterizations

6:57

of the notice pleading standard is

6:59

that plaintiffs needed only to say

7:01

where it hurt. If you've told us

7:03

where it hurts, you've satisfied,

7:06

the notice pleading standard, which is intended

7:08

to be a very modest requirement.

7:11

An indication of that spirit is

7:14

the language that the drafters

7:16

of federal rule eight, a included

7:19

they avoided use

7:21

of all of that jargon and all

7:23

of the words that suggested

7:26

technicality. They avoided

7:28

using the word facts. They avoided

7:30

even using the word cause of action.

7:33

And instead required the plaintiff

7:35

only to offer a short and plain

7:37

statement to link this

7:39

mandate back to the notion of the

7:41

symbolic value of a pleading

7:44

standard. I often analogize

7:46

this pleading standard to the inscription

7:48

on the statue of Liberty, which says,

7:50

give us your tired, your poor, your huddled

7:52

masses, yearning to breathe free, the

7:54

wretched refuse of your teeming shore. The

7:56

point here being the court, isn't

7:59

expecting you to have your act

8:01

together. When you bring your case

8:03

to the court, we don't care if you've found

8:05

your specific cause of action yet,

8:07

or if you've figured out exactly when

8:10

all the key events occurred, or

8:12

if you've done your legal homework to identify

8:14

the particular cause of action under

8:16

which you are suing that's for a

8:18

later stage of the litigation.

8:20

And that was a revolutionary development

8:23

in the federal rules, because this is de

8:25

emphasizing the role that the

8:27

complaint plays in focusing

8:30

the litigation and this phase

8:32

two of the history of our pleading

8:35

standard prevailed for several

8:37

decades, until things start

8:39

to change. And we move into phase

8:41

three of the early part of

8:43

phase three would be as early as the 1970s

8:47

and in the 1970s, what

8:49

the courts were experiencing

8:51

was a real dramatic

8:54

increase in the amount of

8:56

litigation. And the reason that

8:58

the amount of litigation was increasing

9:00

so dramatically is that Congress

9:02

was passing lots of statutes,

9:05

establishing new federal rights.

9:07

A lot of these were civil rights because

9:09

this was the era of the civil rights movement

9:12

of the 1960s and 1970s.

9:14

But it wasn't only that we're talking hundreds

9:17

of new causes of action spread

9:19

across many areas. This is the creation

9:22

of the EPA, for example, in 1970

9:25

and government infrastructure expanding

9:27

more generally. And with that expansion came

9:29

rights and with the expansion of rights

9:32

came lawsuits to enforce

9:34

those rights, to get some

9:37

sense of the magnitude of what we're talking

9:39

about here, appreciate that up

9:41

until 1969

9:44

for the three decades leading up

9:46

to 1969. So this

9:48

is the first three decades under the

9:50

federal rules. The number

9:52

of civil cases in federal

9:54

court grew each year at

9:56

a rate of about three and a half

9:58

percent, but beginning in 1969,

10:02

it explodes. And in fact,

10:04

between 1969 and

10:06

1983, the civil

10:09

caseload in federal courts tripled.

10:12

So this increased demanded a response

10:15

Congress responded by increasing

10:18

the number of federal judges

10:20

during this period, but they only

10:22

increased the number of federal judges by

10:24

about 70%. So

10:26

while the number of judges almost

10:29

doubles, the number of cases

10:31

has tripled. The problem

10:33

is dispute resolution in federal

10:35

courts is something of a limited

10:38

shared public resource.

10:40

There's only so much of it. It is not

10:43

infinitely scalable. And

10:45

so one consequence of the increase

10:48

in the number of cases is judges

10:50

on the ground looking for ways

10:53

to ration this limited

10:55

resource of formal

10:57

dispute resolution. And

11:00

one of the responses was a ratcheting

11:02

up of the pleading standard. There

11:05

was not a change in federal

11:07

rule eight, a or 12, B six.

11:09

There was no amendment to the federal rule,

11:12

but there was a re-interpretation

11:15

of those rules happening on

11:17

the ground in the trial

11:19

courts of the federal court system.

11:22

And this was most evident in the

11:24

area of civil rights cases,

11:26

including discrimination. In

11:29

fact, every single court

11:31

of appeals in the country formally

11:34

adopted in a court opinion, a

11:36

heightened pleading requirement for

11:39

civil rights cases, ordering

11:41

its district courts to apply

11:43

a heightened pleading requirement in

11:45

civil rights cases, using those very words,

11:48

one seeking an ideological explanation

11:51

of that development would not have to work

11:53

very hard. You would identify

11:56

the plaintiffs as members of

11:58

disfavored groups. These

12:00

are women, these are

12:02

persons of color. These are individuals

12:05

seeking to vindicate their right,

12:07

not to be discriminated against. These are

12:09

individuals seeking to vindicate their civil

12:11

rights and civil liberties and

12:14

possibly unpopular causes. So

12:16

the ideological explanation could be, this

12:19

is why these plaintiffs suffered

12:21

the heightened pleading requirement,

12:24

and it was not expressly imposed on

12:26

others. A less ideological

12:28

take that could also be a contributing explanation

12:31

would be that these causes of action

12:33

that were subject to the heightened pleading

12:36

requirement tended to be the

12:38

new causes of action.

12:40

And so the idea for explaining

12:43

the heightened pleading requirement could be

12:46

that courts with their limited

12:48

resources were giving greater attention

12:50

to the more time-tested

12:52

the deeper rights

12:55

the courts were asked to vindicate.

12:58

And so these newer rights

13:00

did receive an inferior treatment,

13:03

but it wasn't because of the nature of the

13:06

plaintiffs or the nature of the litigation itself. Rather

13:08

it was just the novelty of

13:10

those particular claims that gave

13:12

them less of a preference

13:15

in the access to the limited

13:17

resources of the federal courts. A

13:20

third explanation applies only to

13:22

a subset of civil rights

13:24

claims, but it does illustrate an

13:26

important point about the intersection

13:28

of substance and procedure. So I'm going

13:30

to mention it here. Many

13:33

defendants in these civil

13:35

rights cases, enjoyed

13:37

immunity, a substantive

13:39

law doctrine that immunize

13:42

certain defendants from

13:44

not only liability, but

13:47

immunization also from lawsuit

13:49

itself. And so some

13:52

courts saw a heightened pleading requirement

13:54

as a nice compliment to that

13:57

substantive doctrine of immunity

13:59

demanding more of

14:01

the civil rights plaintiffs in those

14:03

particular cases. But let

14:05

me be clear. The heightened pleading requirement

14:08

was not limited to that particular

14:10

subset of civil rights claims. It

14:12

was applied much more broadly to civil

14:14

rights cases and even to discrimination

14:17

cases more generally, and

14:19

that persisted until 1993,

14:23

when the Supreme court in a

14:25

unanimous opinion, scolded

14:27

the lower courts for applying a heightened

14:29

pleading requirement saying, what

14:32

are you doing? Rule eight a has

14:34

not been amended Congress.

14:36

Hasn't changed it to federal rules

14:38

committees haven't amended federal rule

14:40

eight a you can't just have a higher

14:43

pleading standard. The court

14:45

said in its opinion, that it might be a good

14:47

idea for someone to amend

14:49

the federal rule, but until it

14:52

has been amended, they said rule

14:54

eight a means what it said,

14:56

which is restoring the pleading standard

14:58

back to the idea of notice

15:01

pleading one might have expected

15:03

that clear and unanimous Supreme

15:05

court opinion in 1993 to

15:08

get all of the lower courts in line,

15:10

but it didn't. And in fact,

15:12

for the next decade, the lower courts

15:14

continued to try to push the

15:17

boundaries of heightened pleading,

15:19

especially again for civil rights cases.

15:22

And it's not entirely obvious why

15:24

the courts were feeling this pressure

15:26

to impose heightened pleading because

15:29

although the litigation explosion

15:31

that we described as occurring from

15:33

1969 to 1985

15:36

or so, although that was intense,

15:38

that was an explosion after

15:41

1985, but growth

15:44

in the number of cases in federal

15:46

court is absolutely

15:48

flat. It's flat from 1985

15:51

all the way to today. The

15:54

average annual growth rate

15:56

in the number of cases filed in federal

15:59

court after 1985

16:01

is below one half of

16:03

1%. Yet the courts

16:06

feeling the pressure of this notion

16:08

of rationing access to courts

16:11

are rationing it in the 1990s.

16:13

After that 1993 decision

16:16

of the Supreme court, when the court said rule

16:18

a means what it said, which led

16:20

to Supreme court again in 2002

16:23

to issue a centrally the same opinion

16:26

saying once again, we still

16:28

have not seen an amendment to federal rule

16:30

eight a and then they hint

16:32

that they'd like to see that amendment, but

16:35

it hasn't happened. And until it happens, they

16:37

say, you have to apply

16:39

the notice pleading standard of rule eight

16:41

a and then out of nowhere,

16:44

or at least. So it seemed to

16:46

some of us in 2007

16:49

and in 2009, the Supreme

16:52

court in its Trombley and

16:54

Iqbal decisions introduces

16:57

the regime of plausibility

16:59

pleading sort of

17:01

hinting that they're not changing the standard,

17:04

but absolutely changing

17:06

the standard plausibility

17:09

requires more than

17:11

notice pleading exactly

17:13

how much more plausibility pleading

17:16

requires by way of plaintiffs.

17:18

That's the subject of our other episode.

17:20

That's the 12, B six motion in

17:22

practice. We're focused here on

17:24

context. One consequence

17:27

of a higher pleading standard is

17:29

that plaintiffs need to do more pre-filing

17:32

investigation. Of course. So

17:34

before you filed the complaint, you need to know

17:36

a lot more factual

17:38

detail. You might think this is

17:41

just a matter of timing that well,

17:43

whether they need to do it before they file

17:45

or after they file, isn't

17:47

it fundamentally the same thing. And

17:49

it isn't fundamentally the same

17:52

thing because in a regime where

17:54

there is a modest pleading burden

17:56

or no pleading burden, the fact

17:58

investigation is essentially subsidized

18:01

by the formal litigation process.

18:04

A plaintiff can use the techniques of discovery

18:07

and it's then shifting the expense

18:09

of that investigation to the defendant.

18:12

So the responding party in a discovery

18:14

request has to provide all the information

18:17

sought by the plaintiff and to provide it in

18:19

the ordinary case at their own expense,

18:22

but under a regime of heightened pleading,

18:24

the plaintiff of course, has to do all that fact

18:27

investigation on their own

18:29

and at their own expense. So

18:31

when we talk about a pleading standard

18:33

where one of the many things that we're doing

18:35

is that we're allocating certain expenses

18:38

associated with the cost

18:40

of fact investigation and a

18:42

heightened pleading standard shifts. A lot

18:44

of that expense towards the plaintiff, a

18:47

second consequence of a heightened pleading standard

18:49

is the possibility that certain

18:52

cases that would be successful

18:54

if they could get to trial, won't

18:57

get to trial because they can't

18:59

get past the plausibility pleading

19:02

standard. And it's pretty

19:04

easy to profile the kind

19:06

of case that is most likely

19:08

to fall into that category. It's

19:10

the sort of case where the plaintiff's

19:13

cause of action includes elements

19:16

where details about that element

19:19

are in the possession of the defendant

19:21

and unavailable to the plaintiff.

19:24

So for example, if the element

19:26

of the plaintiff's claim involves the defendant's

19:28

state of mind, or

19:31

whether the defendant intended to

19:33

do something or what the defendant's

19:35

knowledge was of something, or

19:37

whether the defendant was acting in good faith

19:40

causes of action with these elements are especially

19:43

vulnerable to a 12 B6 in

19:45

a regime of heightened pleading calibrating.

19:48

The pleading standard is also about recognizing

19:51

fairness and concern for defendants

19:54

litigation has expensive litigation

19:57

is distracting and it's embarrassing.

19:59

And there are plaintiffs who misuse

20:01

the litigation process and a higher

20:04

pleading standard can protect defendants against

20:06

meritless or frivolous litigation.

20:09

The key of course is to get the balance,

20:12

right? And the notion of balance

20:14

allows me to conclude this episode by

20:16

making a broader, important

20:18

point about our higher

20:21

plausibility pleading standard, appreciate

20:24

that we could have raised

20:27

the pleading standard, been more

20:29

demanding of plaintiffs, but also

20:31

been more specific in

20:34

that demand. In other words, it was a

20:36

separate decision, whether the

20:38

higher pleading standard would be highly

20:41

discretionary, highly fact-specific

20:44

or would instead be something that would be

20:46

much more certain and predictable

20:49

in its application. The

20:51

standard we've wound up with is

20:53

very discretionary. The

20:55

idea of plausibility pleading.

20:58

It's not clear exactly what

21:00

the standard is, and it certainly is going

21:02

to vary from judge to judge. So

21:05

the idea of a discretionary standard,

21:07

as we always see in a procedural rule

21:10

reminds us that discretion

21:12

has its virtue flexibility,

21:15

allowing the judge to tailor

21:17

the standard, to ensure justice in the

21:19

individual case. But discretion

21:22

also comes at a cost. It

21:24

comes at the cost of certainty and predictability,

21:27

which means we won't know for sure

21:30

when we're drafting a complaint or

21:32

discussing a complaint with our clients,

21:34

whether or not it is, or isn't sufficient

21:37

under the pleading standard certainty.

21:39

And predictability is the cost of discretion.

21:42

Also uniformity is the cost

21:45

of discretion and a standard

21:47

that has this discretionary nature to

21:49

it. That necessarily means

21:51

that what works in courtroom a

21:54

may or may not work

21:56

in courtroom B. It

21:58

also means that the calibration

22:01

of the pleading standard allocating

22:03

the power between plaintiffs and defendants

22:05

is not occurring in the public policy

22:08

arena, where those various interests

22:10

could be debated and compromise

22:13

rather than it occurring in a public policy

22:16

arena. It's occurring on a case by case

22:18

basis as judges apply it, as

22:20

they see fit in the individual case,

22:22

which could be fine or even preferable,

22:25

if you have great faith in judges.

22:28

And that concludes this episode of the civil

22:30

procedure podcast, be sure to check

22:32

out the episode list on your podcast

22:35

feed [email protected]

22:37

for related episodes,

22:40

have a good day.