11th Circuit Tackles Inchoate Iqbal Pleading Standard!

Careful readers know I have a obsession with fondness for certain people and issues that the blog tends to return to again and again -- or maybe I'm just out of material?

Anyways, I'm happy to see the 11th Circuit clarify the Iqbal pleading standard in an opinion reversing Judge Graham, who granted a 12(b)(6) motion on those grounds.

Let's see if you can tell what particular (and tragic) factual allegations really tipped the scales in favor of allowing the case to proceed past the initial stages of a motion to dismiss, as opposed to being gone for all eternity:

Appellants’ complaint alleges the following: a Carnival employee encouraged Appellants to visit Coki Beach in St. Thomas; Carnival was familiar with Coki Beach because it sold excursions there; Carnival generally knew of gang violence and public shootings in St. Thomas; Carnival knew of Coki Beach’s reputation for drug sales, theft, and gang violence; Carnival knew or should have known of the gang member’s shooting and funeral taking place near Coki Beach; Carnival failed to warn Appellants of any of these dangers; Carnival knew or should have known of these dangers because Carnival monitors crime in its ports of call; Carnival’s negligence in encouraging its passengers to visit Coki Beach and in failing to warn disembarking passengers of general and specific incidents of crime in St. Thomas and Coki Beach caused Liz Marie’s death; and Appellants have suffered various damages, including the loss of Liz Marie’s life. This negligent failure-to-warn claim is more than a mere recitation of the elements of the cause of action. The facts alleged in the complaint are plausible and raise a reasonable expectation that discovery could supply additional proof of Carnival’s liability. See Twombly, 550 U.S. at 556, 127 S. Ct. at 1965. We consequently conclude that the district court erred in dismissing Appellants’ negligence claim under Iqbal.

See, it's like art or pornography (or pornographic art) -- you just know it when you see it!

Congrats to Phil Parrish on a big win -- now you get to litigate your case and try to prove up some of these allegations (the ruling on duty to warn should help).

Have a great weekend!

Yes Virginia, the Twombly/Iqbal Pleading Standard Applies to FLSA Cases Too!

I see Judge Moreno had to explain -- again -- that the Supreme Court's imprecise pleading standard revision in Twombly/Iqbal (discussed or perhaps overdiscussed at length on this blog) cuts across all civil cases, even FLSA suits:

As they did with their response to the first motion to dismiss, Plaintiffs begin their present response by attempting to differentiate the heightened pleading requirements of Twombly and Iqbal from the FLSA context.  Relying on language from a pre-Iqbal Eleventh Circuit decision, they maintain that the requirements to state an FLSA claim are "quite straightforward" in comparison to the complexity of the pleadings involved in Twombly.....As the Supreme Court has stressed, Twombly "expounded the pleading standard for all civil actions.''' Iqbal, 556 U.S. at 684 (emphasis added). Courts in the Eleventh Circuit have affirmed this holding in FLSA cases, specifically distinguishing past contrary case law.

Now, should I repeat this holding one more time?

Oh well, the Court denied the motion to dismiss anyway.

Judge Moreno also denied a motion to stay all discovery pending disposition of the motion to dismiss.

(Given this was the second time around for the plaintiff I can perhaps see the reasoning, but in general I'm no fan of such motions because they can tick off the judge, are rarely warranted, even more rarely granted, and are often filed reflexively.)

Thanks for the Shout-Out, Judge Scola!

Let's start by heaping praise on Brett Barfield and his team at the FBA who continually put on highly informative and well-run programs and events, including today's must-attend, completely sold-out Judge Scola luncheon.

The ever eloquent Judge took time from his busy calendar to answer pressing and important questions from curious federal court practitioners, such as:

1.  What is your favorite color?
2.  Boxers or briefs?

and my personal favorite:

3.  How do you pronounce Reese's Pieces?

In other words, all your important questions were answered!

Seriously, the Judge is a major dude and a fantastic speaker, and we appreciated the shout out -- it's probably better to be known for repeatedly highlighting a recent flawed Supreme Court opinion than, say, Bo Derek or the pros and cons of Keytars.

Thanks for taking the time, Your Honor.

Twombly/Iqbal Applies to Affirmative Defenses!

What's good for the goose and fool the gander once and all that, says Magistrate Judge O'Sullivan:

An affirmative defense may be stricken if it fails to satisfy the pleading requirements of Rule 8 and Twombly. See Twombly at 1362. The defendant has failed to satisfy the pleading requirements of Rule 8 and Twombly in this matter because the defenses merely states conclusions. Accordingly, the plaintiffs’ motion is granted....

BTW, the Notice Pleading Restoration Act appears dead in the water.

This Complaint Makes Perfect Sense to Me!

Bismark/Jung Complaint

Maybe it was the two cafecitos this morning, or perhaps the three Dewar's last night, but this pro se complaint pending before Judge Zloch seems reasonable and actually explains quite a lot.

Take note, young writers -- here's the gripping first paragraph, which should definitely be made into a graphic novel or big-screen blockbuster:

The Petitioner is being subjected to an ongoing conspiracy of discrimination due to his mother being a descendant of King Bismarck of Germany.  The marriage between the Petitioner's German mother of Erica Jung and American father of Richard Delaney was arranged by President Dwight Eisenhower when the Petitioner's father was stationed in Germany in the American military.  Upon returning to America, Director Allan Dulles of the CIA arranged for Richard Delaney to become employed by Chevron Oil Company owned by the Rockefellers in a game of the Mother, the Child, and the Dragon in the Book of Revelations, but only because he knew that Nelson Rockefeller controlled British intelligence at the time.  This led to David Rockefeller instructing Richard Delaney to name his three German children Michael John Delaney, Larry Paul Delaney, and Valerie Jean Delaney.  David Rockefeller further instructed to give all three German children the Nazi SS nicknames of Squirt, Stinky and Spike, all beginning with an S.

If you keep reading, the causation argument becomes quite interesting.

Any guesses on how it will do under the new Iqbal/Twombly pleading standard?

Microsoft Billionaire Foiled By Iqbal!

Boy this lame-duck Congress is actually getting a few things done -- (a few) new federal judges even!

So what's the status of efforts to roll back Twombly or Iqbal?

Senator Spector's bill is D.O.A., as is the House version.

That's good news for some, except Microsoft billionaire Paul Allen:

A judge has dismissed Microsoft co-founder Paul Allen’s lawsuit against Google, Apple, Facebook and others for patent infringement.
Back in August, Allen originally claimed that 11 different companies, including YouTube (), Netflix and AOL, had violated four different patents associated with web search and e-commerce. These patents are tied to both software and business methods.

Now, however, a court has sided with Google et al. in a motion to dismiss the case, saying Allen’s claims were too vague and lacked “adequate factual detail to satisfy the dictates of Twombly and Iqbal” — two cases that are precedents for requiring adequate evidentiary support.

Sheesh, you'd think Allen's lawyers would know how to plead around this standard, but apparently not.

From the Court order:

Plaintiff's complaint does not satisfy Rule 8 or Form 18 because Plaintiff has failed to identify the infringing products or devices with any specificity. The Court and Defendants are left to guess what devices infringe on the four patents. Plaintiff only indicates that Defendants have websites, hardware, and software that infringe on the patents or that they are encouraging third parties to use products that infringe on the patents. This fails to indicate to Defendants which of their myriad products or devices may be at issue. These allegations are insufficient to put Defendants on "notice as to what [they] must defend." McZeal, 501 F.3d at 1357 (citing Twombly, 550 U.S. at 565 n.10). They are also too generic to satisfy Form 18. Plaintiff urges the Court and Defendants to have patience and simply await delivery of the infringement contentions as required by Local Rule. This ignores that Local Rules do not trump the Federal Rules of Civil Procedure or the Supreme Court's mandate in Twombly and Iqbal. Fed. R. Civ. P. 83(a)(1); Iqbal, 129 S. Ct. at 1950, 1953. Plaintiff's complaint is little more than labels and conclusions, which are inadequate under Twombly, Iqbal, and even Form 18. The Court GRANTS the motions to dismiss.

I don't do patent litigation, but I'm not sure a heightened pleading standard made the difference here.

You can read the complaint and judge for yourself.

11th Circuit Applies Iqbal "Judgment" and "Experience" to Tempur-Pedic Antitrust Complaint; Complaint Now Sleeps With the Fishes

Courtesy of the Chef, I see that the 11th Circuit yesterday applied Iqbal to an interesting antitrust complaint alleged against those crappy, overpriced flexible beds, and found the complaint lacking in terms of alleging a submarket specifically for crappy, overpriced flexible beds:

Here, because the district court dismissed his complaint based on its legal insufficiency, Jacobs argues that he did not have the chance to add facts in discovery which would have established visco-elastic foam mattresses as a separate relevant product submarket.

We cannot accept this argument, however, because it would absolve Jacobs of the responsibility under Twombly to plead facts “plausibly suggesting” the relevant submarket’s composition. Jacobs’s skimpy allegations of the relevant submarket do not meet this obligation. The complaint alleges, without elaboration, that “[v]isco-elastic foam mattresses comprise a relevant product market, or submarket, separate and distinct from the market for mattresses generally, under the federal antitrust laws.” This conclusional statement merely begs the question of what, exactly, makes foam mattresses comprise this submarket. The complaint provides no factual allegations of the cross-elasticity of demand or other indications of price sensitivity that would indicate whether consumers treat viscoelastic foam mattresses differently than they do mattresses in general. Consumer preferences for visco-elastic foam mattresses versus traditional innerspring mattresses, and the costs associated with their sale, may vary widely, may vary little, or may not vary at all. Jacobs’s complaint, however, gives no indication of which of these is the case. The allegations that visco-elastic foam mattresses are more expensive than traditional innerspring mattresses and that visco-elastic foam mattresses have “unique attributes” are similarly of little help. They do not indicate the degree to which consumers prefer visco-elastic foam mattresses to traditional mattresses because of these unique attributes and differences in price.  Would, for example, a consumer whose innerspring mattress was due for replacement be more likely to purchase another innerspring mattress or substitute a visco-elastic foam model for it? Are visco-elastic foam mattresses put to different uses (as luxury goods, such as in fine hotels and within higher income brackets) than are traditional mattresses? These types of questions, which our precedent makes clear are crucial to understanding whether a separate market exists, go unanswered in the complaint.

Ok, these are fair points raised by the 11th, and since it was the plaintiffs' first shot at a complaint and they never amended and the defendant never answered, I would assume they'll get a chance to fill in this helpful factual detail at the amended complaint stage, which was inexplicably denied by the district court below.

That assumption would be wrong:

Having read Jacobs’s motion, we conclude that it did nothing but ask the district court to reexamine an unfavorable ruling. Reconsidering the merits of a judgment, absent a manifest error of law or fact, is not the purpose of Rule 59. We find nothing in the district court’s order that would constitute a manifest error of law or fact. Jacobs’s remedy, if he thought the district court ruling was wrong, was to appeal, a step he has taken. Since we have concluded that the court did not err in dismissing Jacobs’s complaint, it necessarily follows that it did not abuse its discretion in denying Rule 59(e) relief.

As noted in the LA Times and USA Today just this morning, there is a major judicial crisis, with huge vacancies and overloaded courts struggling to administer justice.

So it's good to see the 11th Circuit doing its part to quickly clear all those clogged federal dockets.

The NYT Throws A TwIqbal Party!

I'm always amused by judges who caution lawyers not to be verbose in filings, and to adhere strictly to the page limits in briefing.  This is usually accompanied by a whine about "all the paper" the Court has to deal with and that brevity is a virtue and you should be able to convey your legal position succinctly and clearly.

Yet many of these judges write long, repetitive, confusing opinions, sometimes twice the page limits of the briefs submitted by the parties themselves.

In a truly fascinating article, no court is more guilty of this than our own Supremes:

Yet the number of words per decision has been climbing. The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words.

In the 1950s, the median length of decisions was around 2,000 words.

The opinions in Citizens United v. Federal Election Commission, the January decision that lifted restrictions on corporate and union spending in candidate elections, spanned 183 pages and more than 48,000 words, or about the length of “The Great Gatsby.” The decision — ninth on the list of longest majority opinions — was controversial, but the questions it addressed were not particularly complicated.

Long opinions are perilous, said Edward H. Cooper, a law professor at the University of Michigan. “The more things you say, the more chances you have to be wrong and the more chances you have to mislead the lower court,” he said. 

Not only are recent Supreme Court opinions ponderously long, they are also frustratingly vague and confusing!

Guess which ones gets featured:

In a pair of civil procedure decisions in 2007 and 2009 that have been cited many thousands of times, the court gave trial judges more authority to throw out cases early based on, in the words of the later decision, their “experience and common sense.”

That standard, Arthur R. Miller wrote last month in The Duke Law Journal, is “shadowy at best” and has caused “confusion and disarray among judges and lawyers.” 

You don't say!

Congress Held An Iqbal Party!

I had some time on my hands yesterday, so I went ahead and did a Jay Z-White Album-style mashup of the Congressional testimony on Iqbal yesterday and John Lennon's seminal Plastic Ono Band album from 1970 -- it starts with a gong and a raspy-voiced John primal screaming "Mama don't GOOOOOOOOOO!!, Iqbal stay home" and ends with Lennon cooing to Arlen Specter "Rule 8 and me, that's reality."

I think it came out pretty.....what, was I the only one to think of that?

But can you believe a group of Congresspeople actually got together yesterday on the Hill and discussed Iqbal, which has already been cited 2700 times in federal court:

"The Iqbal decision will effectively slam shut the courthouse door on legitimate plaintiffs based on the judge's take on the plausibility of a claim, rather than on the actual evidence," Nadler said. The bill will be similar to one introduced earlier this year in the Senate by Sen. Arlen Specter (D., Penn.) but will spell out the new standards more specifically.

The proposed legislation would return pleading standards to where they were after the Supreme Court's 1957 Conley v. Gibson decision, which stated that defendants should have "fair notice" of any claim, but said only cases lacking strong evidence should be dismissed.

Hmm, I've heard of that before -- it's called Rule 8(a).

I knew Specter was old, but he's going all the way back to 1957 and Conley v. Gibson -- hail, that's pre-Mad Men old.

Not so fast, says the dude who actually argued Iqbal, who predicts Gloom and Doom, cats and dogs etc. if we go back to the way things used to be just five months ago:

If passed, the bill could raise legal fees for companies. Electronic discovery proceedings can cost millions of dollars and even tens of millions in anti-trust and other complicated cases, said Gregory Katsas, former U.S. assistant attorney general who helped represent the U.S. government in Ashcroft v. Iqbal.

Come on -- you'd have to be a pretty bad lawyer if you couldn't get a motion to dismiss granted pre-Iqbal if your grounds were that strong.

The problem is the nearly formless "implausibility" standard, which introduces a huge amount of judicial discretion at too early a stage:

"The bottom line is that the Supreme Court knows what the impact of this decision is," Johnson said. "Even defense lawyers have called the Iqbal decision an unexpected gift for the business community."

You know, I find plenty of things "implausible" -- Drew Barrymore dating that idiot from the Mac commercial, for example, but should I get to decide everything?

Ok, don't answer that.

Is Iqbal the New Twombly?

Remember when Twombly came out in late 2006 and it showed up in just about every motion to dismiss?

Twombly, Twombly, Twombly.

Everywhere you went, people were talking about "Twombly."

You had to pretend to know something about it at judicial functions, there were teleconferences on it, and associates billed incessantly to copy and paste the part of the brief that dealt with it over and over and over again.

It was the "economic loss rule" of 2007.

Now, it seems, everyone is talking about Iqbal:

“Iqbal is the most significant Supreme Court decision in a decade for day-to-day litigation in the federal courts,” said Thomas C. Goldstein, an appellate lawyer with Akin Gump Strauss Hauer & Feld in Washington.

On its face, the Iqbal decision concerned the aftermath of the Sept. 11 attacks. The court ruled that a Muslim man swept up on immigration charges could not sue two Bush administration officials for what he said was the terrible abuse he suffered in detention.

But something much deeper and broader was going on in the decision, something that may unsettle how civil litigation is conducted in the United States. Justice Ruth Bader Ginsburg, who dissented from the decision, told a group of federal judges last month that the ruling was both important and dangerous. “In my view,” Justice Ginsburg said, “the court’s majority messed up the federal rules” governing civil litigation.

Even Justice Souter, who wrote for the majority in Twombly, thought Iqbal went too far, what with expecting judges to use "common sense" and determining what's "plausible" -- hah!

Sheesh, they're federal judges, give them a break!

Indeed, just a few days ago Judge Conway of the Middle District dismissed a false marketing suit involving Seroquel, citing Iqbal.

I hate legal trends, and particularly trendy decisions or theories that are untested and which run amuck for a while before things get back to normal.

So now everything is going to be about Iqbal, at least for the near future, before somebody realizes that maybe we went too far and we can go back to normal pleading practices, you know, Rule 1, Rule 8, Rule 12 -- the oldies but goodies.

And so, kids, now you know why I hate flatbread.