Bell Atlantic decision in U.S. Supreme Court perplexes judges, attorneys.

Byline: David Ziemer

Are you perplexed by the U.S. Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007)?

You're not alone, based on the comments of the April 17 panel at the Eastern District of Wisconsin Bar Association's annual meeting.

U.S. District Court Judge Rudolph T. Randa expressed a view shared by many others when he simply asked, "What the hell?"

Since Conley v. Gibson, 355 U.S. 4 (1957), was decided 50 years earlier, the rule had been that a complaint should not be dismissed for failure to state a claim under FRCP 8(a)(2) "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

The only exception was under Rule 9(b), requiring particularity for allegations of fraud or mistake.

In Bell Atlantic, however, the Supreme Court changed the standard, holding that, to state a claim under the Sherman Act, plaintiffs asserting collusion must also allege facts tending to exclude economically rational explanations for the conduct.

The plaintiffs merely alleged parallel conduct on the part of local telecommunications carriers in staying out of each other's markets, which the Supreme Court found insufficient.

However, the Supreme Court denied that it was adopting or applying any heightened pleading standards.

Shortly afterwards, the Supreme Court reversed a lower court's holding which dismissed a prisoner's complaint alleging deliberate indifference to his medical needs. Erickson v. Pardus, 127 S.Ct. 2197 (2007).

The justices held that the complaint need only give the defendant fair notice of what the claim is, and that specific facts are not necessary.

Despite the Supreme Court's distinguishing Bell Atlantic in Erickson, Judge Randa stated that he expected Bell Atlantic to be applied to a wide variety of cases in which discovery is "expensive."

One problem he noted with that standard is that "expensive" is a relative term -- what is expensive depends as much on the parties' wealth as the nature of the action.

Richard M. Esenberg, a law professor at Marquette University, observed that the students in his civil procedure course shared Randa's response to the decision in Bell Atlantic. "It's hard to know what to tell them," he said. "'What the hell?' Everything else is just elaboration."

However, Esenberg suggested that the meaning of Bell Atlantic may be that, where an element of the complaint is necessarily opaque, and difficult to...