Fourth Circuit Clarifies Twiqbal; Plaintiffs Despair
Last week's post briefly noted Francis v. Giacomelli, the Fourth Circuit's new opinion clarifying federal pleading standards under Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). Francis merits further discussion, as it may prove to be one of the most influential civil procedure decisions to come out of the Fourth Circuit in years.
Background
Twombly and Iqbal--collectively, Twiqbal--are, of course, the Supreme Court's landmark recent opinions on federal pleading standards. To put them in their proper context, I Shephardized the decisions, along with a few less important opinions to use as benchmarks:*
|
Bell Atlantic v. Twombly, 550 U.S. 544 (2007) |
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) |
Marbury v. Madison, 5 U.S. 137 (1803) |
Brown v. Bd. of Education, 347 U.S. 483 (1954)
|
|
|
Total citations |
29,939 |
4,165 |
11,969 |
13,224
|
|
Citations in the 4th Circuit
|
1,177 |
252 |
81 |
227 |
|
Citations in Virginia state court |
0 |
0 |
28 |
7 |
These results suggest that Twiqbal ranks somewhere between the Bible and the Magna Carta in terms of its importance to Western law (though Virginia state courts remain unmoved, implying that the new standard has not yet crept into state-court practice). The Fourth Circuit's substantive take on Twiqbal will, therefore, prove important to practitioners.
Francis v. Giacomelli
And what a take it is. Francis grows out of a staggeringly ugly employment dispute. The Mayor of Baltimore fired the City's Police Commissioner and two of his top deputies. The Mayor then sent the police to retrieve from the Commissioner and his deputies their badges, firearms, police ID, and other official property, and to escort them from their offices.The Commissioner and his deputies sued the Mayor and City Council in state court. The Maryland Court of Appeals ultimately decided that the Commissioner had not been discharged in accordance with Baltimore law, which required cause--even though the Commissioner's contract allowed the Mayor to fire him without cause.
The Commissioner and his deputies also sued the Mayor, the City Solicitor, and several members of City Council in federal court. The defendants moved to dismiss, and the district court granted their motion.
The Fourth Circuit affirmed, ruling that the complaint failed to state any claim for legal relief that was plausible on its face. In the course of its ruling, the Fourth Circuit also provided a detailed discussion of post-Twiqbal pleading standards. It's easy to see why the court felt a need to do so. Twiqbal's evident popularity notwithstanding, the plaintiffs invoked the Conley's "any set of facts" standard--the standard that Twombly expressly retired.
The Fourth Circuit explained that a motion to dismiss tests the legal sufficiency of a complaint, assuming that all facts alleged are true. The legal sufficiency of a complaint, in turn, is measured by the standards in Rules 8, 9, 10, 11, and 12(b)(6).
In light of these rules, the Fourth Circuit declined to characterize the federal rules as a "notice pleading" regime. Instead, it stated:
Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints.
The court cautioned that characteriizing the federal scheme as a "notice pleading" scheme may be "too simplistic," as it fails to acknowledge the Rules' provisions allowing courts to evaluate a complaint's sufficiency early in the litigation. Reviewing some of those provisions, the Fourth Circuit detected a "countervailing policy that plaintiffs may proceed into the litigation process only when their complaints are justified by both law and fact." In light of this policy, and against a backdrop of "strike suits" and skyrocketing litigation costs, the court recited the now-familiar Twiqbal plausibility standard.
The Fourth Circuit applied these principles aggressively in affirming the district court's ruling. As to the facts, although the court evaluated only the allegations in the complaint, it opted to "understand" those allegations "in the context of the facts alleged in the state court complaint and restated by the Maryland Court of Appeals . . . ." The plaintiffs, for their part, conceded that this was the proper context in which to consider their allegations.
Further, in Count II of their Complaint, the plaintiffs claimed that the defendants discriminated against them on the basis of their race. Their complaint, however, only alleged that two of the three plaintiffs were African-American. On brief, the defendants contended that the third was white--a claim that they had also made in their motion to dismiss. Because the district court had accepted this assertion and the plaintiffs did not dispute it, the Fourth Circuit considered it in affirming the dismissal of Count II.
Finally, to add insult to injury, the plaintiffs had requested leave to amend in the event that the district court granted the defendants' motion to dismiss. But the local rules required them to attach a copy of the proposed amended pleading, and they failed to do so. As a result, the Fourth Circuit ruled that the district court had not abused its discretion by denying the motion to amend.
Some Lessons from Francis:
- Notice pleading is not the rule. The Fourth Circuit recognizes a countervailing policy in the Rulles that protects defendants. "[U]adorned allegations of wrongdoing" are not enough to state a claim, no matter what Rule 84 or Civil Form 11 may appear to say.
- Defendants: file your motions to dismiss. After this case, filing a motion to dismiss in the Fourth Circuit will be almost a matter of minimal professional competence.
- Plaintiffs: plead carefully. Know the elements of your claims, and be sure to allege facts--not just conclusions of law--to support each. In the wake of Francis, it looks like more investigation will be required on the front end.
- Don't make unnecessary concessions. One of the interesting facets of the opinion is the Fourth Circuit's consideration of facts from the companion state court case, as well as the defendants' filings. The plaintiffs conceded that the former were properly considered. It would be interesting to know under what circumstances they made that concession. As a general rule, I try to concede everything that must be conceded on brief (when I have time to think through the implications), and avoid making any concessions in the heat of oral argument. Easier said than done, but it avoids the risk of making a concession that you then read about in a published opinion.
- Know the local rules. When I was at Skadden, Rich Brusca gave all the new litigation associates a set of 11 rules called "Brusca's Guide to a (Relatively) Stress-Free Life for Litigation Associates." I still have mine hanging on the wall. Brusca's prime directive: "Know the rule--Local, Federal, Civil, Evidence, Ethics." Here, the plaintiffs may have lost a shot at amending their complaint because they failed to follow the local rules.
Finally, on the exceedingly remote chance that (i) you care about soccer and (ii) Friday's post left you on the edge of your seat, the U.S. landed in a group with England, Slovenia, and Algeria. As Alexi Lalas put it, if you can't find a way to beat Slovenia and Algeria, you don't deserve to advance.
* I chose these cases to make a point, not because they present the best benchmarks. For a fairer (but less funny) comparison, Anderson v. Liberty Lobby, 477 U.S. 242 (1986), has been cited 163,574 times by all sources. It has been cited 8,103 times in the Fourth Circuit and four times in Virginia state courts. Joking aside, while Twiqbal poses no real threat to devour all of federal case law in the near future, it does represent an important doctrinal shift.
