September 2009
Another Blow To Notice Pleadings?
By Ken Moran and Jana Roemmich
Some time ago, we discussed the U.S. Supreme Court’s opinion in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) on the Moran Reeves & Conn PC website, and questioned whether it moved Rule 8(a)(2) of the Federal Rules of Civil Procedure away from traditional concepts of “notice” pleading. Recently, the Court decided Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), which not only affirmed Twombly, but extended its reach well beyond antitrust matters. Thus, the standard under Rules 8 and 12(b)(6) currently is: “to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id, 129 S. Ct. at 1949 (citations omitted). Writing for the majority in Iqbal, Justice Kennedy reversed the Second Circuit Court of Appeals denial of a motion to dismiss, and suggested that Twombly had “retired” the then prevailing standard that a complaint is sufficient so long as there is any statement of facts on which to predicate liability. Conley v. Gibson, 355 U.S. 41 (1957).
In his dissent in Twombly, Justice Stevens queried:
Whether the Court’s actions will benefit only the defendants in antitrust treble-damages cases, or whether test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer.
In a string of recent decisions, the district courts in Virginia have quickly embraced Twombly and Iqbal and extended them to federal cases in general.
Perhaps the best example of these recent decisions is Branham v. Dolgencorp, Inc., 2009 U.S. Dist. LEXIS 74816 (Civil No. 6:09-CV-00037, U.S.D.C. W. D. Va., 2009). In Branham, the plaintiff fell at a Dollar General Store in Amherst, Virginia after slipping in a pool of liquid on the floor. Plaintiff then filed a personal injury action in state court which subsequently was removed to the federal court in Lynchburg. That court granted defendant’s Rule 12(b)(6) motion to dismiss under Twombly and Iqbal. It noted that:
(T)he Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid or how the Plaintiff’s accident occurred.
Id. at *6. Thus, the court found that the complaint alleged no “more than a sheer possibility that a defendant has acted unlawfully” and failed to “nudge(s) [its] claims across the line from conceivable to plausible.” Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 570.
At first blush, Branham may be read as the opinion of a district court anxious to reduce its case load. However, the court did not simply dismiss the case, but granted plaintiff 15 days to amend her complaint. Therefore, the district courts in Virginia appear to require more than just a notice pleading in any complaint filed in or removed to federal court.1
Please feel free to contact Ken Moran or Jana Roemmich about this article or the cases cited.
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1Fenley v. Total Reality Management, Case No. 1:08CV1212 (GBL)(U.S.D.C. E.D. Va. 2009) reached the same result – dismissal of plaintiff’s amended complaint in an interstate land’s sale transaction. However, the amended complaint in Feeley contained a number of fraud and misrepresentation which was analyzed under the heightened pleading standard of Fed. R. Civ. P. 9.