If it (ain't) Broke, Don't Fix It: Twombly, Iqbal, Rule 84, and the Forms

• Publication year: 2016

SEATTLE UNIVERSITY LAW REVIEW Volume 39, No. 4, SUMMER 2016

If It (Ain't) Broke, Don't Fix It: Twombly, Iqbal, Rule 84, and the Forms

Justin Olson(fn*)

"In my view, the Court's majority messed up the Federal Rules."

-Justice Ruth Bader Ginsburg(fn1)

CONTENTS

INTRODUCTION ................................................................................... 1375

I. THE RIPPLES OF TWOMBLY AND IQBAL ............................................. 1378

A. First Came Twombly . . . ........................................................... 1378

B. . . . Then Came Iqbal .................................................................. 1380

II. HARMONY OR DISCORD BETWEEN TWOMBLY, IQBAL, AND RULE 84 ............................................................................................................ 1382

A. Pleading and Form 11 ............................................................... 1382

B. Patent Litigation ....................................................................... 1382

III. THE ADVISORY COMMITTEE'S RESPONSE .................................... 1384

IV. THE ALTERNATIVE: HONEST DIALOGUE AND TARGETED CHANGES

............................................................................................................ 1387

CONCLUSION ....................................................................................... 1389

INTRODUCTION

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts,(fn2) to the love-hate relationship with class actions,(fn3) judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims.(fn4) Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal.(fn5) Although the Court would like to believe otherwise, would-be plaintiffs are faced with a greater pleading standard than the plain language of Rule 8 suggests. Now, a new victim of judicial misinterpretation has emerged: the Appendix of Forms under Rule 84.

In its entirety, the Rules are designed with the overarching purpose of securing the "just, speedy, and inexpensive determination of every action and proceeding."(fn6) Rule 84 and the accompanying Appendix of Forms were initially adopted in 1938 to illustrate the "simplicity and brevity . . . which the [R]ules contemplate."(fn7) In fact, the practice of providing sample forms can be traced back to the twelfth century English legal system wherein an aggrieved party petitioned for a writ from the Crown carefully tailored to the specific legal claim involved.(fn8) Using the wrong writ led to a failure of the claim; thus, sample writs were compiled and provided for lawyers to use.(fn9)

Although critics often debate whether the present-day forms were in fact relied upon by practitioners, their adoption served as a reflection of what the Rules are meant to be-a type of check and balance against expansive judicial interpretation contrary to the liberal vision of the Rules.(fn10) As an example of this, Rule 8 requires that a complaint need only a "short and plain statement" of jurisdiction, the claim entitling the pleader to relief, and a demand for the relief sought.(fn11) Accompanying this rule, Form 11 illustrates a sample complaint for negligence, consisting of a single paragraph covering jurisdiction followed by one line each for the claim and demand for relief.(fn12) The theory went that a plaintiff who plainly modeled their complaint on Form 11 should survive a motion to dismiss.(fn13) In contrast, the recent holdings of the Court now require consideration of whether the allegations of a claim are "plausi-ble,"(fn14) a sharp departure from the language of Rule 8 and the content of Form 11.

The contradiction between the Rules and the interpretations arrived at by the Twombly and Iqbal courts, among other reasons, led the Advisory Committee on Civil Rules to recommend abrogating the entirety of Rule 84 and the Forms.(fn15) Last year, the Supreme Court of the United States approved the recommendations and, with no intervention by Congress, the forms died a quiet death this past December.(fn16) This Note examines the drastic and unnecessary reaction by the Advisory Committee and recommends what would have been a more evenhanded approach to resolving the pleading juxtaposition created by the Court: amending only those forms affected by Twombly and Iqbal-to wit, Rule 8 and Forms 10 through 21. It may be that the Advisory Committee cannot craft a sample complaint that would in all cases be sufficient under the Court's interpretations, but that is precisely the point. It is an uncomfortable conversation that needs to happen: the Court changed the Rules in Twombly and Iqbal without going through the appropriate legislative process. Now the process has been used to sweep the mess under the rug. If the Advisory Committee could not prepare a sufficient sample complaint, how can we expect plaintiffs to do so?

Part I of this Note discusses the history of Twombly and Iqbal and their effect on pleading standards under the Rules. Part II describes how courts have struggled, unsuccessfully in many cases, to reconcile the Court's interpretation with the language of Rule 8 and the illustrative forms under Rule 84. Part III outlines the response of the Standing Committee on Rules of Practice and Procedure to the dilemma created by Twombly and Iqbal. Finally, Part IV discusses the author's alternative to abrogation of the Forms.

I. THE RIPPLES OF TWOMBLY AND IQBAL

A. First Came Twombly . . .

In 2007, the Supreme Court caused a shift in pleading requirements when it considered the antitrust case of Bell Atlantic Corp. v. Twombly.(fn17) The plaintiffs in the original action-representing subscribers to local telephone and internet services-sought to break up the monopolies held by various regional telecommunications corporations.(fn18) The complaint alleged violations of § 1 of the Sherman Act(fn19), which prohibits all contracts in restraint of trade or commerce.(fn20) As support for this allegation, the plaintiffs pointed to the behavior of the regional corporations including: (1) parallel conduct in each region seemingly designed to stifle competition; (2) common failure to pursue attractive business opportunities when doing so would compete with another regional corporation; and (3) the statement by one regional chief executive officer noting that competition with another regional corporation did not seem right.(fn21)

The district court originally dismissed the plaintiffs' claims, noting that an allegation of parallel business conduct, taken alone, did not suffice for a claim under § 1.(fn22) According to the district court, the plaintiffs were required to plead additional facts tending "to exclude independent self-interested conduct as an explanation for defendants' parallel behav-ior."(fn23) The court of appeals reversed, stating that the complaint had been tested under the wrong standard and that additional facts were unnecessary.(fn24) The ruling was appealed and the Supreme Court granted certiorari.

The Court's analysis appeared to be grounded in both the language of Rule 8 and what the requirements meant when taken with the ability to attack the sufficiency of a complaint under Rule 12. The Court began its analysis by considering Rule 8(a)(2), which requires "a short and plain statement of the claim showing that the pleader is entitled to relief."(fn25) The purpose of this requirement, according to the Court, was to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests."(fn26) However, a complaint attacked under Rule 12(b)(6) strikes at the plaintiffs' obligations to provide the "grounds" of their "en-title[ment] to relief," requiring more than mere labels, conclusions, or formulaic recitations of the elements.(fn27) Notably, the Court quoted Rule 8(a) when it referred to the "grounds" of a complaint, yet that word appears only in Rule 8(a)(1) referring to the "grounds for the court's jurisdiction," not in Rule 8(a)(2) dealing with the "short and plain statement that the pleader is entitled to relief."(fn28) Regardless, the Court determined that it need not accept as true those allegations not supported by factual allegations and that a plaintiff must plead enough facts such that the remaining allegations are "plausible" and "not merely consistent with" the allegations.(fn29)

It is clear from the Court's discussion that the "plausible" standard was meant to be narrow and uncontroversial. Because the issue in the case, as stated by the Court, was a determination of the "proper standard for pleading an antitrust conspiracy through allegations of parallel conduct," the new "plausible" pleading standard was meant only to apply to pleadings in those limited claims.(fn30) Immediately after announcing the (new) standard, the Court attempted to clearly distinguish between the plausible standard required and a heightened pleading standard reaching probability.(fn31) The Court even pointed out that well-pleaded complaints under the "plausible" pleading standard may still go forward despite "savvy judge[s]" believing that...