Understanding pleading doctrine.

• Author: Spencer, A. Benjamin

Where does pleading doctrine, at the federal level, stand today? The Supreme Court's revision of general pleading standards in Bell Atlantic Corp. v. Twombly has not left courts and litigants with a clear or precise understanding of what it takes to state a claim that can survive a motion to dismiss. Claimants are required to show "plausible entitlement to relief" by offering enough facts "to raise a right to relief above the speculative level." Translating those admonitions into predictable and consistent guidelines has proven illusory. This Article proposes a descriptive theory that explains the fundaments of contemporary pleading doctrine in a way that gives it some of the clarity and precision it otherwise lacks. The major descriptive thesis posited here is that the central animating principle of contemporary pleading doctrine is the requirement that a complaint--through the use of objective facts and supported implications- describe events about which there is a presumption of impropriety. Getting to that presumption requires different degrees of factual specificity depending on the factual and legal context of the claim. A secondary descriptive claim is that the doctrine in its current iteration privileges efficiency interests over the justice-related concerns of accuracy and procedural fairness. Unfortunately, this preference unduly harms the right of access to courts for those plaintiffs having claims that require the pleading of information they do not or cannot know. Further, it may be that certain types of claims, such as civil rights and antitrust claims, are more disadvantaged by this preference than others, suggesting that the doctrine needs to be recalibrated to better serve the interests of justice more evenly across different types of cases.

TABLE OF CONTENTS INTRODUCTION I. THE NEED FOR A DESCRIPTIVE THEORY OF PLEADING A. A Lack of Clarity B. A Lack of Precision C. Approaching the Theory II. A PRESUMPTION-BASED THEORY OF PLEADING III. THE VALUES OF PLEADING A. Notice B. Efficiency C. Justice IV. EVALUATING PLEADING DOCTRINE A. Balancing Efficiency and Justice B. Pleading and Context CONCLUSION INTRODUCTION

Access to justice is a cornerstone principle of our democracy. Vital to that principle is our civil justice system and the ease with which those who have been aggrieved are able to seek relief from the federal courts. Prior to the advent of the Federal Rules of Civil Procedure in 1938, history had not been kind to those pressing their claims, with difficult and often insurmountable pleading standards characterizing the gate through which claimants had to pass to gain entry into the judicial system. (1) The Federal Rules ushered in a new era of open access for plaintiffs by casting aside complicated fact-pleading regimes in favor of simplified pleading (2) and broad discovery. (3) The idea was that decisions should be rooted in the merits, something not promoted, it was thought, through pleadings-based dispositions of matters before discovery could ensue.

As the liberality of the Federal Rules combined with the proliferation of public-rights legislation beginning in the 1960s (4) and with reforms that made class actions a tool that more litigants could use, (5) there was a perception that the federal courts were being flooded with a level of claims--some with merit but many without--that it increasingly could not efficiently handle. (6) Over time, courts began turning to pleading standards as a means of stemming the tide of claims and separating the wheat from the chaff. (7) Though the Supreme Court had indicated that Rule 8 required only simple notice pleading with no need for factual detail, (8) lower federal courts developed and imposed their own more stringent pleading standards for certain claims that required increased levels of factual detail before such claims would be permitted to proceed to discovery. (9) On occasion, the Supreme Court chided the lower courts for this activity, (10) but never to an extent sufficient to quell selective imposition of these heightened pleading standards completely. (11)

Judicial inclination toward stricter pleading standards ultimately took hold among a majority of the Supreme Court itself when, in 2007, the Supreme Court decidedly revised its previous understanding of the nature of one's pleading obligation under the Federal Rules in Bell Atlantic Corp. v. Twombly, (12) a revision that has been affirmed and solidified by the Court's more recent decision in Ashcroft v. Iqbal. (13) In Twombly, the Court reinterpreted Rule 8 as requiring allegations that show a plausible entitlement to relief, a feat accomplished by offering substantiating facts that move liability from a speculative possibility to something that discovery is reasonably likely to confirm. (14) Although some commentators (15) and the Court itself (16) would perhaps deny it, Twombly appeared to be a departure from the simple "notice" pleading standard announced in Conley v. Gibson (17) and reaffirmed most notably in Leatherman v. Tarrant County Narcotics Unit (18) and Swierkiewicz v. Sorema. (19) Under notice pleading, courts were prohibited--at least so far as the Supreme Court had been concerned--from dismissing a claim unless it was clear that there was "no set of facts" that the plaintiff could prove to establish the claim. (20) It was this "no set of facts" language from Conley that the Twombly Court abrogated as it articulated its new vision of what pleading under Rule 8(a) requires. (21)

In previous writings I have set forth my understanding of the meaning of Twombly, (22) explained why I feel that the Court's pronouncements in the case were misguided, (23) and chronicled lower-court reaction to and application of Twombly's standards to civil rights claims. (24) In this latest installment of my ongoing project to understand federal civil pleading standards, I turn to an effort to engage in a systematic analysis of contemporary pleading doctrine that will hopefully yield a comprehensive theoretical description of its fundamental components and underlying rationale.

Although Twombly and Iqbal do not by themselves supply all one needs to know about pleading doctrine today, the decisions--by largely ratifying the heretofore renegade practice of imposing fact-pleading requirements--have brought together theory and practice in a way that enables a unified analysis of pleading doctrine as stated and the doctrine as applied that will be free of the internal inconsistencies that characterized the pre-Twombly pleading world. In other words, by bringing fact pleading out of the shadows and giving it its imprimatur, the Supreme Court has made it possible now to discuss pleading doctrine without having to contend with the pesky contradictions between the Court's previously high-minded rhetoric about notice pleading and the reality on the ground of particularized pleading. Thus, the merger of rhetoric with reality that Twombly (and Iqbal) accomplished gives us an occasion to assess the precise character, structure, and purpose of pleading doctrine within the federal system as a whole.

The discussion below proceeds as follows: Part I outlines the need for a descriptive theory of pleading, which, in brief, is rooted in the need to give some practical meaning to the broad and confusing pronouncements of Twombly and to develop an explanation for the level of factual detail a complaint will require in any given substantive legal context. Part II presents the descriptive theory, which holds that the central defining principle of contemporary pleading doctrine is the requirement that a complaint--through the use of objective facts and supported implications (25)--describe events about which there is a presumption of impropriety. Getting to that presumption requires different degrees of factual specificity depending on the factual and legal context of the claim. Part III seeks to uncover the core value or values that animate pleading doctrine, focusing on the values of notice, efficiency, and justice. Part IV evaluates the doctrine as clarified by the descriptive theory, focusing on its imbalance with respect to vindicating the concerns of efficiency over justice and the consequent disadvantaging of certain types of claims.

1. THE NEED FOR A DESCRIPTIVE THEORY OF PLEADING

   The pleading doctrine that emanates from Twombly suffers from two defects that hamper courts and litigants in their efforts to understand and apply it. First, the Twombly opinion was insufficiently clear regarding whether notice pleading survives the decision, the extent to which facts are now required in pleadings, and the nature and vitality of the requirement to accept nonmovants' factual allegations as true in the face of a motion to dismiss. Second, the doctrinal signals flowing from Twombly are too imprecise and subjective to facilitate the proper and consistent application of pleading requirements across jurisdictions. After reviewing these clarity and precision problems, this Part will lay the groundwork for approaching a theory of pleading that can give greater definition to what Twombly and the relevant provisions within the Federal Rules require of litigants asserting claims.

   1. A Lack of Clarity

      A central question in the wake of Twombly is whether so-called notice pleading survived the decision. Unfortunately, the Court's own inconsistent rhetoric has been responsible in large part for a lack of clarity on this issue. (26) For instance, the Twombly Court affirmed that "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," (27) but then wrote that "[f]actual allegations must be enough to raise a right to relief above the speculative level" (28) and a complaint must allege facts suggestive of illegal conduct." (29) Although requiring the pleading of suggestive facts seems akin to particularized fact pleading of the kind previously thought not compelled by Rule 8...