12(b)(6) in Context

This episode puts the 12(b)(6) motion to dismiss in context. I address the historical context of the motion, and its importance in the scheme of litigation. 

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Welcome to the civil procedure podcast. I am your host Thomas Mayne . And this episode is about the 12, B six motion to dismiss for failure to state a claim where we put that motion in a broader context, the 12 B six motion is responsible for a relatively small share of terminations in federal court. It's a number below 5%. However, the motion is important symbolically and practically symbolically. It's almost like a mascot for a procedural system, or we could invoke all sorts of metaphors here. Maybe it's the courthouse doors where either the doors of the courthouse are on an electronic sensor, such that they swing wide open, welcoming you to the courthouse. If you get anywhere near it, or the courthouse doors could be so heavy that you would need to hire a weightlifter in order to pry open the courthouse doors, or they could be locked and you would need to hire an especially proficient locksmith in order to get in the courthouse. That's this notion of this symbolic importance of the pleading standard. There are also practical consequences. For example, if the pleading system is so cumbersome or complicated or technical, that one needs an attorney in order to navigate it on done , that necessarily means that would be litigants who lack the resources or wherewithal or grit to find and retain legal counsel simply won't get justice. A rigorous pleading standard would also mean that you run the risk in such a system that certain litigants with meritorious claims won't be able to meet the pleading standard, even though they would be able to prevail in the case. Ultimately, if the litigation were to proceed, that's a risk of a higher pleading standard related to that is some notion as profound as the separation of powers, because when laws create rights, procedural systems are supposed to be vindicating. Those rights, assigning responsibilities in accordance with those rights and procedural systems should be judged on the extent to which they do. So a pleading standard can interfere with that. Now on the other side course procedure, isn't just about fairness to plaintiffs. It's also about fairness to defendants pleading standards that are rigorous protect defendants from frivolous cases, from cases that are filed by litigants, who are trying to use litigation as a shakedown strategy, bringing these nuisance claims just to get some settlement value, higher pleading standards, protect defendants from those kinds of claims. I want to put the pleading standard that we have today into a historical context that can be divided into three phases. Phase one would be before the federal rules of civil procedure and phase two would be the introduction of the federal rules of civil procedure. And phase three would be the contemporary re-interpretation of the federal rules of civil procedure. Phase one, before there were federal rules, procedure was a sport, it was precise, it was technical, it was complicated and difficult to navigate. It was difficult to navigate without a lawyer was difficult to navigate with a lawyer. There was jargon to be mastered so many traps for the unwary. One misstep, one mislabeling, and you lose pleadings were very strategic and they played a central role in the litigation process. The federal rules of civil procedure in phase two of our history here, but an end to that, they wanted to end the sporting theory of justice. And in fact, they had a different perspective on procedure generally, rather than procedure being an important part of litigation. The federal rules, conceptualized procedure, as something of a necessary evil, it was necessary in the sense that they needed something, but it was an evil in the sense that they didn't want procedure to be interfering with the merits of the underlying cases. Cases should be decided on the merits, not on the mastery of some technical or tactical maneuver and the pleading standard. And the 12 B six motion were indeed the mascot of this new system. The pleading standard required only notice pleading on the part of the plaintiff. We have to be careful here because the use of the word notice is a bit unfortunate because we use the word notice in another part of the course, when we're referring to the constitutional requirement of notice to the defendant, that's a different concept they're certainly related, but I would use kind of capital in notice in that other context, that's a term of art regarding the constitutional requirement under the due process clause. When we're talking about notice pleading in this sense for the 12 B6 , it's sort of notice with a lower case and not a capital letter. And the idea here is just our general sense of notifying somebody. And the notice pleading standard was thought to be very modest in its demand. We don't expect plaintiffs to do a tremendous amount of legal homework and identifying the nature of their cause of action or invoking the particular section of the statute that gives them their claim. And we don't expect them to do a lot of factual homework. All you need to do is to give the defendant a general sense of what you're complaining about. In fact, one of the common characterizations of the notice pleading standard is that plaintiffs needed only to say where it hurt. If you've told us where it hurts, you've satisfied, the notice pleading standard, which is intended to be a very modest requirement. An indication of that spirit is the language that the drafters of federal rule eight, a included they avoided use of all of that jargon and all of the words that suggested technicality. They avoided using the word facts. They avoided even using the word cause of action. And instead required the plaintiff only to offer a short and plain statement to link this mandate back to the notion of the symbolic value of a pleading standard. I often analogize this pleading standard to the inscription on the statue of Liberty, which says, give us your tired, your poor, your huddled masses, yearning to breathe free, the wretched refuse of your teeming shore. The point here being the court, isn't expecting you to have your act together. When you bring your case to the court, we don't care if you've found your specific cause of action yet, or if you've figured out exactly when all the key events occurred, or if you've done your legal homework to identify the particular cause of action under which you are suing that's for a later stage of the litigation. And that was a revolutionary development in the federal rules, because this is de emphasizing the role that the complaint plays in focusing the litigation and this phase two of the history of our pleading standard prevailed for several decades, until things start to change. And we move into phase three of the early part of phase three would be as early as the 1970s and in the 1970s, what the courts were experiencing was a real dramatic increase in the amount of litigation. And the reason that the amount of litigation was increasing so dramatically is that Congress was passing lots of statutes, establishing new federal rights. A lot of these were civil rights because this was the era of the civil rights movement of the 1960s and 1970s. But it wasn't only that we're talking hundreds of new causes of action spread across many areas. This is the creation of the EPA, for example, in 1970 and government infrastructure expanding more generally. And with that expansion came rights and with the expansion of rights came lawsuits to enforce those rights, to get some sense of the magnitude of what we're talking about here, appreciate that up until 1969 for the three decades leading up to 1969. So this is the first three decades under the federal rules. The number of civil cases in federal court grew each year at a rate of about three and a half percent, but beginning in 1969, it explodes. And in fact, between 1969 and 1983, the civil caseload in federal courts tripled. So this increased demanded a response Congress responded by increasing the number of federal judges during this period, but they only increased the number of federal judges by about 70%. So while the number of judges almost doubles, the number of cases has tripled. The problem is dispute resolution in federal courts is something of a limited shared public resource. There's only so much of it. It is not infinitely scalable. And so one consequence of the increase in the number of cases is judges on the ground looking for ways to ration this limited resource of formal dispute resolution. And one of the responses was a ratcheting up of the pleading standard. There was not a change in federal rule eight, a or 12, B six. There was no amendment to the federal rule, but there was a re-interpretation of those rules happening on the ground in the trial courts of the federal court system. And this was most evident in the area of civil rights cases, including discrimination. In fact, every single court of appeals in the country formally adopted in a court opinion, a heightened pleading requirement for civil rights cases, ordering its district courts to apply a heightened pleading requirement in civil rights cases, using those very words, one seeking an ideological explanation of that development would not have to work very hard. You would identify the plaintiffs as members of disfavored groups. These are women, these are persons of color. These are individuals seeking to vindicate their right, not to be discriminated against. These are individuals seeking to vindicate their civil rights and civil liberties and possibly unpopular causes. So the ideological explanation could be, this is why these plaintiffs suffered the heightened pleading requirement, and it was not expressly imposed on others. A less ideological take that could also be a contributing explanation would be that these causes of action that were subject to the heightened pleading requirement tended to be the new causes of action. And so the idea for explaining the heightened pleading requirement could be that courts with their limited resources were giving greater attention to the more time-tested the deeper rights the courts were asked to vindicate. And so these newer rights did receive an inferior treatment, but it wasn't because of the nature of the plaintiffs or the nature of the litigation itself. Rather it was just the novelty of those particular claims that gave them less of a preference in the access to the limited resources of the federal courts. A third explanation applies only to a subset of civil rights claims, but it does illustrate an important point about the intersection of substance and procedure. So I'm going to mention it here. Many defendants in these civil rights cases, enjoyed immunity, a substantive law doctrine that immunize certain defendants from not only liability, but immunization also from lawsuit itself. And so some courts saw a heightened pleading requirement as a nice compliment to that substantive doctrine of immunity demanding more of the civil rights plaintiffs in those particular cases. But let me be clear. The heightened pleading requirement was not limited to that particular subset of civil rights claims. It was applied much more broadly to civil rights cases and even to discrimination cases more generally, and that persisted until 1993, when the Supreme court in a unanimous opinion, scolded the lower courts for applying a heightened pleading requirement saying, what are you doing? Rule eight a has not been amended Congress. Hasn't changed it to federal rules committees haven't amended federal rule eight a you can't just have a higher pleading standard. The court said in its opinion, that it might be a good idea for someone to amend the federal rule, but until it has been amended, they said rule eight a means what it said, which is restoring the pleading standard back to the idea of notice pleading one might have expected that clear and unanimous Supreme court opinion in 1993 to get all of the lower courts in line, but it didn't. And in fact, for the next decade, the lower courts continued to try to push the boundaries of heightened pleading, especially again for civil rights cases. And it's not entirely obvious why the courts were feeling this pressure to impose heightened pleading because although the litigation explosion that we described as occurring from 1969 to 1985 or so, although that was intense, that was an explosion after 1985, but growth in the number of cases in federal court is absolutely flat. It's flat from 1985 all the way to today. The average annual growth rate in the number of cases filed in federal court after 1985 is below one half of 1%. Yet the courts feeling the pressure of this notion of rationing access to courts are rationing it in the 1990s. After that 1993 decision of the Supreme court, when the court said rule a means what it said, which led to Supreme court again in 2002 to issue a centrally the same opinion saying once again, we still have not seen an amendment to federal rule eight a and then they hint that they'd like to see that amendment, but it hasn't happened. And until it happens, they say, you have to apply the notice pleading standard of rule eight a and then out of nowhere, or at least. So it seemed to some of us in 2007 and in 2009, the Supreme court in its Trombley and Iqbal decisions introduces the regime of plausibility pleading sort of hinting that they're not changing the standard, but absolutely changing the standard plausibility requires more than notice pleading exactly how much more plausibility pleading requires by way of plaintiffs. That's the subject of our other episode. That's the 12, B six motion in practice. We're focused here on context. One consequence of a higher pleading standard is that plaintiffs need to do more pre-filing investigation. Of course. So before you filed the complaint, you need to know a lot more factual detail. You might think this is just a matter of timing that well, whether they need to do it before they file or after they file, isn't it fundamentally the same thing. And it isn't fundamentally the same thing because in a regime where there is a modest pleading burden or no pleading burden, the fact investigation is essentially subsidized by the formal litigation process. A plaintiff can use the techniques of discovery and it's then shifting the expense of that investigation to the defendant. So the responding party in a discovery request has to provide all the information sought by the plaintiff and to provide it in the ordinary case at their own expense, but under a regime of heightened pleading, the plaintiff of course, has to do all that fact investigation on their own and at their own expense. So when we talk about a pleading standard where one of the many things that we're doing is that we're allocating certain expenses associated with the cost of fact investigation and a heightened pleading standard shifts. A lot of that expense towards the plaintiff, a second consequence of a heightened pleading standard is the possibility that certain cases that would be successful if they could get to trial, won't get to trial because they can't get past the plausibility pleading standard. And it's pretty easy to profile the kind of case that is most likely to fall into that category. It's the sort of case where the plaintiff's cause of action includes elements where details about that element are in the possession of the defendant and unavailable to the plaintiff. So for example, if the element of the plaintiff's claim involves the defendant's state of mind, or whether the defendant intended to do something or what the defendant's knowledge was of something, or whether the defendant was acting in good faith causes of action with these elements are especially vulnerable to a 12 B6 in a regime of heightened pleading calibrating. The pleading standard is also about recognizing fairness and concern for defendants litigation has expensive litigation is distracting and it's embarrassing. And there are plaintiffs who misuse the litigation process and a higher pleading standard can protect defendants against meritless or frivolous litigation. The key of course is to get the balance, right? And the notion of balance allows me to conclude this episode by making a broader, important point about our higher plausibility pleading standard, appreciate that we could have raised the pleading standard, been more demanding of plaintiffs, but also been more specific in that demand. In other words, it was a separate decision, whether the higher pleading standard would be highly discretionary, highly fact-specific or would instead be something that would be much more certain and predictable in its application. The standard we've wound up with is very discretionary. The idea of plausibility pleading. It's not clear exactly what the standard is, and it certainly is going to vary from judge to judge. So the idea of a discretionary standard, as we always see in a procedural rule reminds us that discretion has its virtue flexibility, allowing the judge to tailor the standard, to ensure justice in the individual case. But discretion also comes at a cost. It comes at the cost of certainty and predictability, which means we won't know for sure when we're drafting a complaint or discussing a complaint with our clients, whether or not it is, or isn't sufficient under the pleading standard certainty. And predictability is the cost of discretion. Also uniformity is the cost of discretion and a standard that has this discretionary nature to it. That necessarily means that what works in courtroom a may or may not work in courtroom B. It also means that the calibration of the pleading standard allocating the power between plaintiffs and defendants is not occurring in the public policy arena, where those various interests could be debated and compromise rather than it occurring in a public policy arena. It's occurring on a case by case basis as judges apply it, as they see fit in the individual case, which could be fine or even preferable, if you have great faith in judges. And that concludes this episode of the civil procedure podcast, be sure to check out the episode list on your podcast feed or@civilprocedure.com for related episodes, have a good day.