It's Getting Tougher To Get Past A Rule 12(b)(6) Motion In The Fourth Circuit

The standard for getting past a 12(b)(6) Motion in federal court in North Carolina inched higher yesterday with the Fourth Circuit's decision in Francis v. Giacomelli.  

The opinion from Judge Niemeyer, relying on the United States Supreme Court's June 2009 decision in Ashcroft v. Iqbal, affirmed the grant of a Motion to Dismiss in a political firing case. 

Although Francis isn't a business case, you should definitely look at it if you are dealing with a Motion to Dismiss in federal court. It takes a stern view of pleading requirements after Iqbal, including a discussion of the need to deter "strike suits" and to avoid the "high costs of frivolous litigation."

The Court actually went so far as to suggest that the Federal Rules never really allowed notice pleading:

Overlooking the broad range of criteria stated in the Federal Rules for a proper complaint, some have suggested that the Federal Rules, when adopted in 1938, simply created a “notice pleading” scheme, pointing for support to Rule 8(a)2), which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” and Rule 8(d)(1), which provides that “[n]o technical form [for stating allegations] is required.” But the “notice pleading” characterization may itself be too simplistic, failing to recognize the many other provisions imposing requirements that permit courts to evaluate a complaint for sufficiency early in the process. Rule 8 itself requires a showing of entitlement to relief. Rule 9 requires that allegations of fraud, mistake, time, place, and special damages be specific. Rule 11 requires that the pleading be signed and provides that the signature “certifies” (1) that the claims in the complaint are not asserted for collateral purposes; (2) that the claims asserted are “warranted”; and (3) that the factual contentions “have evidentiary support.” And Rule 12(b)(6) authorizes a court to dismiss any complaint that does not state a claim “upon which relief can be granted.” The aggregation of these specific requirements reveals the countervailing policy that plaintiffs may proceed into the litigation process only when their complaints are justified by both law and fact.

Senator Arlen Specter has introduced legislation to repeal Iqbal.  It is called the Notice Pleading Restoration Act of 2009.  The legislation would reinstate the liberal pleading standard of Conley v. Gibson, 355 U.S. 41 (1957) discarded by the Supreme Court in Iqbal and an earlier decision, Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).

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