Iqbal Keeps Spreading
posted by Jon Siegel
I previously discussed how the Supreme Court’s Iqbal decision is going to have a big impact on federal civil litigation. Jaya Ramji-Nogales suggested that maybe it won’t have such a big impact after all. It’s still too early to say definitively who’s right, but take a look at this – Iqbal applied to a slip-and-fall case!
For those just tuning in, the Supreme Court’s decision last term in Ashcroft v. Iqbal upended some long-standing rules of pleading in civil procedure. The previous understanding was that a civil complaint — the document that by which the plaintiff starts a civil case — just had to give the defendant a general notice of what the case was about. It didn’t have to go into specifics or detail. If the plaintiff says, “I worked for the defendant and the defendant fired me because of my race or religion,” that states a sufficient claim. The plaintiff doesn’t have to say how she knows what the defendant’s motives were. Sure, the defendant is eventually entitled to that information, but it doesn’t have to be in the complaint. That’s what discovery is for.
Iqbal throws the rules into confusion. Under Iqbal, the trial court gets to disregard allegations it regards as conclusory (a term the Supreme Court didn’t clearly define) and make some judgment about whether the complaint is sufficiently plausible to require a response. Under this new regime, it’s far less clear that a one-sentence allegation about why the plaintiff got fired would be sufficient without some further allegations that show some evidentiary support. Courts have been dismissing all kinds of cases on the basis of insufficient allegations, such as this dismissal of a case in which plaintiff alleged that she took the defendant’s drug and suffered a terrible injury as a result, which got dismissed because, in the court’s opinion, the plaintiff didn’t sufficiently allege how she knew the drug caused her injury.
Now we have the ultimate in Iqbal dismissals — a dismissal in a slip and fall case! Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery?
This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.
As this case shows, Iqbal is going to send us back to the era of endless wrangling about exactly what has to be in the complaint. We’re going to waste a lot of time polishing the pleadings. And apart from everything else, it’s going to cause years of confusion. Before Iqbal I could at least give a confident judgment about whether a complaint was sufficient. Now I have no idea. If people can’t even get a slip-and-fall case into court, we’re in trouble.
Update: As Jaya points out in the comments, the post attributed to her above was actually a post by Adam Steinman, transmitted to Concurring Opinions by Jaya. Thanks for this correction and sorry for the error.
September 8, 2009 at 12:40 pm
Tags: pleading, torts
Posted in: Uncategorized
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Responses (8)
Jaya Ramji-Nogales - September 8, 2009 at 1:18 pm
Welcome to the blog, Jon, and thanks for the shout out — but just to clarify, I didn’t write the post on Iqbal to which you link above. The post was a guest blog by my law school classmate Adam Steinman (posted by me, which understandably may have confused the reader). I’m not yet sure how I come down on Iqbal’s impact!
Howard Wasserman - September 8, 2009 at 1:24 pm
The real Iqbal takeover of pleading will come when a court uses it to demand more facts in a traffic accident case–what did the other driver *do* that was negligent? Then Form 9/11 truly will be dead.
Jon Siegel - September 8, 2009 at 1:36 pm
I’m sure some judge will try that, but I don’t see how it could possibly be correct, given that Rule 84 provides that “The forms in the Appendix suffice under these rules.” That’s why I think the best fix for Iqbal is to add some new forms.
Bruce Boyden - September 8, 2009 at 2:43 pm
This opinion takes Twombly/Iqbal to an extreme. “Negligently failed to remove or warn” seems to me functionally identical to “negligently drove.”
Orin Kerr - September 8, 2009 at 10:01 pm
Jon writes:
“The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment.”
Those mechanisms exist, but they are costly. Might Iqbal lower some of the very high costs of civil litigation?
AF - September 9, 2009 at 6:57 am
“Might Iqbal lower some of the very high costs of civil litigation?”
Iqbal might well be good policy. It’s not the policy reflected in the Federal Rules of Civil Procedure.
disabled pro se in Fed Third Circuit Ct of Appeals - September 9, 2009 at 8:23 am
We are disabled folks, unfortunately pro se, appealing the dismissal of a
failure to accommodate
2007 claim at a high school where child lost out on vocational education and all this unique high school offered. The District Court’s decision was April so only Twombly was cited. He is now a unfortunately a (disabled) adult. The Defendants are opposed to appointment of counsel for the appeal.
I cannot find any other Iqbal tyep cases on failure to accommodate so far (to get a handle on how we did not allege properly). Might our case mean something for many people?
r.friedman - September 9, 2009 at 9:27 am
Orin —
Rule 2 calls for a just and inexpensive resolution of the case, if plaintiffs can’t get relief for actual injury, it’s not just although it may be inexpensive. What about putting the shoe on the other fit, requiring a defendant to answer the complaint instead of just filing a 12b motion and enforcing the rules for admitting or denying strongly?
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