June 2007
The Death Knell for Notice Pleading?
By Kenneth J. Moran
Fed. R. Civ. P. 8(a) requires that the Complaint instituting a lawsuit only contain a "short and plain statement" that puts the defendant on notice of the claim and its general nature. Many states also have adopted this standard of "notice" pleadings. In Virginia, for example, it has been noted the state standard is the same as the federal one "though the Supreme Court of Virginia may not have used the same words to describe it." NRC Mgt. 63 Va. Cir. 68 (Roanoke Cir. Ct., 2003).
Thus, a typical product liability complaint need only allege that the Defendant's product failed due to a "defect" (usually in "design, manufacture, testing and/or instructions") resulting in plaintiff's injury. The product, failure mode and even the nature of the defect need not be identified. See, e.g., MDM Associates v. Johns Brothers Energy Technologies, 59 Va. Cir. 295 (Norfolk Cir. Ct., 2002) (in ruling on a demurrer in a case seeking punitive damages for the installation of a defective boiler, the court noted that "the plaintiff need not descend into statements giving details of proof in order to withstand demurrer." Citations omitted.)
As a consequence, a federal Rule 12(b)(6) motion to dismiss or a Virginia state court demurrer will only be granted when "no set of facts" can be shown or imagined to support the claim. Conley v. Gibson, 355 U.S. 41 (1959). The courts rely on liberal discovery and other pre-trial procedures to weed out meritless claims.
This may change in the future in light of the recent U.S. Supreme Court opinion in Bell Atlantic Corp. v. Twombley, ___ U.S. ____, 127 S. Ct. 1955, 2007 U.S. Lexis 5901 (May 2007). Twombley involved an antitrust action alleging "parallel behavior" among the "Baby Bells" to inhibit market entry to the detriment of consumers. The District Court dismissed the Complaint before an Answer had been filed since the pleading did not allege any specific acts that tended to establish a conspiracy or illegal conduct. The Court of Appeals for the Second Circuit affirmed. The Supreme Court could have decided the issue of the Complaint's sufficiency on parallel behavior or antitrust grounds, but instead chose to question the continued validity of Conley v. Gibson. supra. Writing for the majority, Justice Souter noted that the "no set of facts" standard "has earned its retirement," and that the test "is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at *35.
The difference in the opinions and reasoning between Justices Souter and Stevens (for the dissent) can largely be understood by their respective views of the trial court's ability to control costly discovery and to summarily dismiss unwarranted claims. According to Justice Souter, "given the system that we have, the hope of effective judicial supervision is slim." Id. at *30. He noted that the inability of the trial court to know the details and theories in a given case, the use of attorney-controlled discovery, the inability to measure the costs of discovery, and so forth, made effective judicial control ephemeral . Justice Stevens, on the other hand, announced that "if I had been the trial judge in this case, I would not have permitted the plaintiffs to engage in massive discovery based solely on the allegations in this complaint." Id. at *84.
Perhaps Justice Stevens also formed the question for the future concerning the continued validity of notice pleading in federal courts:
"Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer.
Id. at *88.
For further information, contact the author, Kenneth J. Moran.