Stolen Plausibility

Published date01 December 2021
Date01 December 2021
Stolen Plausibility
MARCUS ALEXANDER GADSON*
Access to justice advocates worry that heightened pleading standards
best represented by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal
are a diff‌icult hurdle for plaintiffs. But they have entirely ignored a
related development that may be an insurmountable one: the doctrine of
stolen plausibility. Born at the same time the legal system has raised
pleading standards, this doctrine holds that it is inherently illegitimate
for plaintiffs to rely on litigation materials from third parties in their
complaints, even where those materials furnish the only realistic source
of information that would help plaintiffs satisfy heightened pleading
standards and when the borrowed materials would make the complaint
meritorious. To do this, courts have drawn on Federal Rules of Civil
Procedure 11 and 12(f). This Article steps back from the narrow lens of
these two Rules to examine the doctrine of stolen plausibility with
broader considerations of fairness in mind. It makes a normative case for
allowing plaintiffs to rely on third-party materials in their complaints to
throw them a necessary lifeline in their struggles to survive motions to
dismiss their complaints, to treat them the same as other parties in the
legal system that rely on third parties’ work product, and to let them
prof‌it from government litigation materials designed to serve them above
all else. It then demonstrates that neither the text nor the history of Rules
11 and 12(f) supports the doctrine of stolen plausibility. Finally, it
asserts that the policy justif‌ications that might support the doctrine of
stolen plausibility—such as incentivizing plaintiffs to conduct diligent
pre-suit investigations—are not strong enough to outweigh this Article’s
fairness concerns.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 293
I. HOW COURTS HAVE TREATED BORROWING FROM THIRD PARTIES IN
COMPLAINTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
A. MOTIONS TO STRIKE UNDER 12(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 296
* Assistant Professor of Law, Campbell University Law School. © 2021, Marcus Alexander Gadson.
I would like to thank Veronica C. Gonzales-Zamora, Shawn Fields, James Yacovelli, Bobbi Jo Boyd,
Greg Wallace, Melissa Essary, Zach Bolitho, Lisa Lukasik, Anthony Ghiotto, Tim Zinnecker, Ashley
Campbell, Roger Manus, and Brooke Coleman for helpful feedback on, and discussions about, previous
drafts of this Article. I would also like to thank the editors of The Georgetown Law Journal who
provided invaluable help throughout the process. For outstanding research assistance, I thank Hannah
Crater, Cara Beth Thierbach, and Lucy Campbell.
291
B. RULE 11 SANCTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300
II. HEIGHTENED PLEADING STANDARDS COLLIDE WITH COURT CONCERNS
OVER COMPLAINTS’ SOURCE MATERIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . 303
A. THE GROWTH OF HEIGHTENED PLEADING STANDARDS. . . . . . . . . . . . 303
B. HEIGHTENED PLEADING STANDARDS RUB UP AGAINST SOURCE
MATERIAL POLICING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 308
III. FAIRNESS REQUIRES ALLOWING PLAINTIFFS TO BORROW PLAUSIBILITY . . 309
A. NECESSITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 309
B. TREATING LITIGANTS FAIRLY VIS-A
`-VIS OTHER LITIGANTS . . . . . . . . 314
1. Plaintiffs Who Use Other Litigants’ Materials in Their
Complaints Should Not Be Treated Differently than
Other Actors Who Use Third-Party Work Product in the
Legal System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 314
2. Plaintiffs Should Not Bear a Higher Evidentiary Burden
on a Motion to Dismiss than They Do on a Motion for
Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 316
C. PLAINTIFFS ARE ENTITLED TO USE GOVERNMENT LITIGATION
MATERIALS............................................. 316
IV. COURTS HAVE UNFAIRLY INTERPRETED THE RULES OF CIVIL PROCEDURE
TO PUNISH BORROWING PLAUSIBILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
A. RULE 12(F) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 317
1. Interpretations of Rule 12(f) Should Create, Not Impede,
Equity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
2. Courts Have Adopted an Unfairly Skewed Def‌inition of
Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 321
B. RULE 11................................................ 323
1. Courts Have Unfairly Suggested a Duty for Lawyers to
Gather Facts Personally . . . . . . . . . . . . . . . . . . . . . . . . . 323
2. Courts Have Abandoned the Tradition of Not Applying
Rule 11 to Meritorious Pleadings . . . . . . . . . . . . . . . . . . 324
V. POLICY CONCERNS DO NOT JUSTIFY THE DOCTRINE OF STOLEN
PLAUSIBILITY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 327
292 THE GEORGETOWN LAW JOURNAL [Vol. 110:291
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 331
INTRODUCTION
Imagine the following situation: a company has f‌ired a Black woman from her
job purely because of her race and gender. Her subsequent employment-discrimina-
tion complaint alleges that there is an internal company memorandum documenting
an interview where her supervisor used derogatory language to describe her and
other Black women and statistical evidence that over a twenty-year period, he had
f‌ired or refused to promote every Black woman who ever worked for him. Further,
imagine the complaint acknowledges that its allegation of the memorandum came
from the Equal Employment Opportunity Commission’s (EEOC) investigation and
subsequent complaint the agency f‌iled against the company for discrimination
against minority employees. Finally, assume that when the parties settled, the judge
said she found the evidence highly credibleand that she was profoundly trou-
bledby the company’s behavior. Most of us would f‌ind the Black woman’s com-
plaint of employment discrimination plausible. Many courts would f‌ind that the
complaint’s plausibility came from the wrong source, remove the plausible allega-
tions from the complaint, and then dismiss the complaint as implausible.
The doctrine of stolen plausibility
1
explains this surprising result. This doctrine
holds that it is impermissible for plaintiffs to rely on third-party litigation materials
2
to prove that their claims are plausible. Its effect in many cases is dismissal of com-
plaints that either are or might be meritorious. The doctrine is built upon two prem-
ises. The f‌irst premise is the rise of stringent pleading standards requiring plaintiffs
to draft detailed complaints that judges f‌ind plausible to survive a motion to dismiss.
The second premise is many courts’ longstanding tendency to police the source
material plaintiffs can use in their complaints. Specif‌ically, they have often pre-
vented plaintiffs from relying on, either in whole or in part, materials drafted by
third parties—often in previous lawsuits—that are relevant to their cases.
3
Plaintiffs have attempted to use previous complaints,
4
administrative f‌indings,
5
settlement orders,
6
and government investigations.
7
The goal is to use their
1. You will not f‌ind the term stolen plausibilityin judicial opinions. I have coined the term to
describe a phenomenon that has occurred frequently. And it is a phenomenon that occurs in a variety of
cases, from employment discrimination to securities fraud to antitrust.
2. These materials encompass, at a minimum, complaints, letters from government or foreign
regulatory agencies, and settlement agreements.
3. See, e.g., id. at 1005–06.
4. See, e.g., Geinko v. Padda, No. 00 C 5070, 2002 WL 276236, at *5–6 (N.D. Ill. Feb. 27, 2002)
(holding a Rule 11 violation where an amended complaint attached and relied on two other complaints,
and dismissing the amended complaint as a sanction).
5. See, e.g., Chapman v. Duke Energy Carolinas, LLC, No. 3:09–cv–37RJC, 2009 WL 1652463, at
*2–3 (W.D.N.C. June 11, 2009) (granting a motion to strike portions of an EEOC determination letter).
6. See, e.g., Waterford Twp. Police & Fire Ret. Sys. v. Smithtown Bancorp., Inc., No. 10–CV–864
(SLT) (RER), 2014 WL 3569338, at *4 (E.D.N.Y. July 18, 2014) (striking references to a consent order
the defendant entered into with the FDIC prior to the lawsuit).
7. See generally Richard Casey & Jared Fields, Piggybacking Through the Pleading Standards:
Reliance on Third-Party Investigative Materials to Satisfy Particularity Requirements in Securities
2021] STOLEN PLAUSIBILITY 293

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