Rumors of Conley's demise have been greatly exaggerated: the impact of Bell Atlantic Corporation v. Twombly on pleading standards in environmental litigation.
Author | Detterman, Brook |
Position | NOTES |
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INTRODUCTION II. PLEADING STANDARDS: PURPOSE AND EVOLUTION A. Evolution of the Federal Pleading Standards B. Conley v. Gibson: A Landmark Decision C. Post-Conley Judicial Efforts to Elevate Pleading Standards in Complex Fields 1. Antitrust Litigation 2. Civil Rights Claims 3. Environmental Law 4. Distinguishing Procedure, Substance, and Prudential Concerns III. BELL ATLANTIC V. TWOMBLY A. Conscious Parallelism Evidentiary Standards B. Clarifying Pleading Standards Under Conley C. The Interaction Of Antitrust Substance and Procedure D. Parsing Twombly IV. THE IMPACT OF TWOMBLY ON ENVIRONMENTAL LAW PRACTICE AND PROCEDURE A. CERCLA Claims B. Command and Control Statutes C Common Law Claims and Toxic Torts V. CONCLUSION I. INTRODUCTION
If Conleys "no set of facts" language is to be interred, let it not be without a eulogy. (1)
If there was truth in the assertion that Conley v. Gibson (2) rang the death knell of pleadings practice in federal courts, (3) the Supreme Court's decision in Bell Atlantic Corporation v. Twombly has allayed any such fears. In Twombly, the Court abrogated Conleys venerable "no set of facts" language (4) and dismissed the plaintiffs' Sherman Act (5) claim because they had not "nudged their claims across the line from conceivable to plausible." (6) In doing so, the Court cast doubt on what plaintiffs must plead to survive a motion to dismiss for failure to state a claim upon which relief can be granted, and revived what was perhaps becoming a lost art--the pleadings practice.
Or did it? The Twombly court itself claimed no intention to elevate pleading standards above those required by the Federal Rules, (7) which mandate only a "short and plain statement showing that the pleader is entitled to relief." (8) Nor, in fact, could it. As the Court admits, a modification of generally applicable civil pleading standards can occur only through congressional amendment of the Federal Rules. (9) Nonetheless, by announcing a shift away from the Conley Court's liberal interpretation of Rule 8(a), the Court has potentially created what is variously referred to as a new "plausibility" (10) or "notice-plus" (11) standard for pleading in federal courts. This possibility is magnified by the Court's recent decision in Ashcroft v. Iqbal, (12) which declares that Twomblys discussion of pleading standards is applicable to all civil cases. (13) One thing is certain: With over 12,000 citations by lower courts in the year following the decision, in a wide range of contexts, (14) Twombly merits consideration by the cautious litigator.
Caution is especially warranted in the environmental law arena. Although Twombly was a Sherman Act antitrust case, the procedural nature of the decision leaves the door open to its application in other substantive areas. (15) The primary prudential concerns driving the Twombly majority were the threat of costly discovery and judicial efficiency, (16) factors that are highly relevant in complex environmental claims where causation is at issue. Past decisions also indicate a judicial tendency to place environmental claims alongside antitrust and civil rights claims in that unhappy cadre of cases periodically subjected to elevated pleading standards. (17)
This Note examines the Twombly decision and its application to civil environmental claims, arguing first that the decision does not create a new general pleading standard under the Federal Rules, but instead redefines the elements that a plaintiff must plead to state a claim for relief in a Sherman Act section 1 conspiracy case grounded on a theory of conscious parallelism. Second, even if the Court did indicate a shift in its interpretation of pleading standards in certain cases, the prudential concerns underlying antitrust claims do not extend to the environmental context because environmental plaintiffs have fewer incentives to file unmeritorious claims, and because both statutory and common law claims have well-defined elements that are amenable to limited discovery and early summary judgment motions, in sharp contrast to the highly generalized language and broad mandate of the Sherman Act. Ultimately, this Note concludes that the liberal interpretation given to Rule 8(a) by the Conley court retains vitality, and that a single pleading standard exists for plaintiffs bringing statutory or common law environmental claims in federal courts.
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PLEADING STANDARDS: PURPOSE AND EVOLUTION
The primary function of a pleading made under Rule 8(a)(2) is to provide defendants with notice of the claim against them. (18) However, pleadings also aid in framing the dispute for judicial case management and discovery, (19) and elucidate the legal grounds for relief that are subject to attack by defensive motions made under Rule 12 (20)--most often a motion to dismiss for "failure to state a claim upon which relief can be granted." (21) In complex civil cases that are factually intensive and promise to impose a heavy discovery and litigation burden on plaintiffs, defendants, and the judiciary alike, early disposal of unmeritorious claims is particularly appealing. (22) However, the historical success of Rule 12(b) motions is limited, (23) placing the liberal pleading standards of Rule 8(a) in tension with the need for managing complex cases. (24) Accordingly, there are recurring judicial efforts to impose heightened pleading standards in certain fields of substantive law. (25) Notably, antitrust and environmental claims often bear the brunt of these efforts. (26) Understanding modern pleading requirements thus becomes of vital importance to the environmental law practitioner who wishes to avoid dismissal for failure to state a claim. To fully comprehend the current state of the law and the impact of Twombly, it is first helpful to analyze the evolution of the federal pleading standards, early interpretation of Rule 8(a), and historic judicial efforts to elevate pleading standards in complex civil litigation.
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Evolution of the Federal Pleading Standards
Rule 8 is the "keystone" that begins and supports the civil litigation process by setting out the ground rules for pleading a claim. (27) Under Rule 8, a "Claim for Relief' requires a "short and plain statement of the claim showing that the pleader is entitled to relief" (28) that "must be construed so as to do justice." (29) The apparent liberality of Rule 8 reflects its origins and an effort to simplify the pleading process and decide cases on their merits, rather than on procedural grounds. (30)
Prior to the advent of the Federal Rules in 1938, (31) the common law placed great faith in the ability of pleadings to distill a claim to a single, essential question that would decide the case at trial. (32) As a result, common law pleadings were expected to provide notice of the claim, contain a statement of the facts, narrow the issues in dispute, and provide a mechanism for disposing of "sham" claims and defenses. (33) Because pleadings served so many simultaneous functions, the result was a labyrinth of ritualized procedure and specialized forms of action that proved "slow, expensive, and unworkable." (34) Pleadings therefore limited the ability of a common litigant to obtain a decision on the merits. (35) Failure to include an "essential allegation" or fact often amounted to a fatal defect, resulting in a quick death for the plaintiffs claim. (36) The societal response was a protracted fight "against the tyranny of inherited legal traditions," (37) reflective of a populist movement to gain access to the courts by ending legal formalism. (38) Reform, although slow to arrive, was inevitable. (39)
The American reform experience largely mirrored that in England. (40) Beginning in 1848, early U.S. reformers sought to simplify the common law morass of special pleading rules by creating a system of "code pleading." (41) The codes abolished specialized forms of action and the ritual of complex procedure, and limited the wrangling over pleadings to a complaint, an answer, a reply, and "demurrers." (42) However, by retaining the common law requirement that a pleading contain facts--albeit "dry, naked and actual facts"--code pleading failed to remove fully the intricacies of common law pleadings. (43) Under the fact pleading standard of the codes, a plaintiff faced the prospect of dismissal (through a demurrer) if they failed to plead enough facts. (44) Pleading the "right amount" of facts to satisfy a particular claim was difficult and perilous, as it tied the plaintiff to those facts alone during trial, and to the particular theory that they described. (45) The natural tendency, then, was for plaintiffs to overplead and to include within the complaint any factual allegation that might later prove useful. (46) At the same time, the codes sought to draw lines between "ultimate facts," "evidence," and "conclusions," allowing only the inclusion of "ultimate facts." (47) Because this is not an easy line to draw, allegations within a pleading were therefore subject to attack as mere evidence or conclusions. (48) Rather than simplifying pleading requirements, the fact pleading standard of the codes ultimately caused uncertainty and a reversion to complex and detailed pleadings that caused "frightful expense, endless delay and an enormous loss of motion" as litigants and the Court sought to refine sprawling claims in advance of trial. (49)
The experience of code pleading informed the drafters of the Federal Rules and reinforced the "necessity of procedural rules which enforce the mandate of simplicity and directness." (50) As a procedural device, pleadings had proven an inefficient and inadequate mechanism for vetting claims in advance of trial. (51) Accordingly, the drafters of the Federal Rules of Civil Procedure sought to remove from the purview of pleadings the functions of factual development, narrowing of issues, and disposal of "sham" claims and defenses. (52) Instead, the new Rules provided the...
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