Friday, February 22, 2008

federal courts - pleading - Rules 8(a)(2) and 12(b)(6)

Phillips v. County of Allegheny - Third Circuit - February 5, 2008

This case discusses the change in long-established pleading standards, resulting from the Supreme Court's decision in Bell Atlantic Corp. v. Twombly, ___ U.S. ___, 127 S.Ct. 1955 (2007). Prior to Twombly, the courts had applied the "no set of facts" language and held that a "complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6 (1957).

The Third Circuit found "two new concepts in Twombly" involving a discussion of the language of Rule 8 that a complaint has to contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court said that this required a 'showing' rather than a blanket assertion of entitled to relief" and required the pleading of factual allegations that were "enough to raise a right to relief above the speculative level." A "formulaic recitation of the elements of a cause of action will not do."

Second, the Twombly Court "disavowed certain language that it had used many times before --the "no set of facts" language from Conley...It is clear that the 'no set of facts' language may no longer be used as part of the Rule 12(b)(6) [] standard...'This phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be support by showing any set of facts consistent with the allegations in the complaint.'" The Third Circuit found that "these two aspects of the decision are intended to apply to the Rule 12(b)(6) standard in general."

The Third Circuit also noted that

- while the requirment of a "showing" is new, the Supreme Court also expressly reaffirmed that Rule 8 requires only a short and plain statement of the claim and its grounds. "Whether and to what extent that 'showing' requires allegations of act will depend on the particulars of the claim." Context will be all-important.

- the Twombly court was "careful to base its analysis on pre-existing principles...The Court emphasized throughout its opinion that it was neither demanding a heightened pleading of specifics nor imposing a probability requirement....Thus, under our reading, the notice pleading standard of Rule 8(a)(2) remains intact, and courts may generally state and apply the Rule 12(b)(6) standard, attentive to context and a showing that 'the pleader is entitled to relief, in order to give the defendant fair notice of what the...claim is and the grounds upon which it rests.'"

- like other courts, the Third Circuit found the Twombly decision "confusing" and said that it would "likely be a source of controversy for years to come."

- Twombly may involve a new "plausibility requirement" and require rejection of claims in the there a "mere metaphysical possibility" of a plaintiff proving some facts to support the claim

The court summarized by saying that "all of the foregoing discussion can be reduced to this proposition: Rule 8(a)(2) has it right....This rule requires not merely a short and plain statement, but instead mandates a statement 'showing that the pleader is entitled to relief.' That is to say, there must be some showing sufficient to justify moving the case 'beyond the pleadings to the next stage of litigation."

state appellate procedure - Rule 1925(b) - statement of errors complained of - waiver - quantity of issues

Eiser v. Brown & Williamson Tobacco Corp. - Pa. Supreme Court - December 28, 2007

plurality (3)
concurring (2)
dissent -Castille
dissent - Eakin

Pa. R.A. P. 1925(b) requires an appellant to file and serve on the trial judge a "concise statement of the errors complained of on appeal," where the judge "desires clarification of the errors complained of" and enters an order directing the appellant to prepare such a statement.

As the plurality noted, this rule has been discussed in a "myriad [of] recent decisions...which reach varying conclusions.....[T]here is much consternation in the courts of this Commonwealth related to where lies the outer limit of the number of issues" an appellant may raise under this rule." The process under Rule 1925(b) "has turned into a maelstrom in recent years....."

This case does little to "clarify and quell the consternation," especially given the questionable precedential value of plurality opinions. Bilt-Rite Contractors, Inc. v. The Architectural Studio, 581 Pa. 454; 866 A.2d 270, 275 n. 2 (Pa. 2005).

In this case, the appellants filed a 15-page statement containing 24 separately-numbered issues, some of which contained sub-issues. The trial court wrote an 85-page opinion in the case, which had a "complicated and voluminous record" and in which four judges had issued rulings. The trial and Superior Courts held that appellants had waived their right to appellate review as to 6 of 8 issues they had raised and not voluntarily abandoned on appeal.

Plurality opinion - no per se rule - presumption of good faith
The plurality "instruct[ed] lower courts to address, on the merits, all issues raised in good faith....This standard provides, where necessary, a familiar tool to assess the basis for the issues raised." The plurality also stated that "the number of issues raised in the Rule 1925(b) statement cannot by itself provide a basis for finding waiver....In sum, the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice....There is a presumption that an attorney licensed to practice law in this Commonwealth, who acts as an officer of the court system, has acted in good faith upon signing a document filed with the court." The court "encourage[d] lower courts to recognize that on rare occasions a party may, in good faith, believe that a large number of issues are worthy of pursuing on appeal." (emphasis added)

Saylor, J., concurring - The justice noted his disagreement with a "strict waiver approach" and opposition to any expansion of that doctrine. He thought that the trial and intermediate appellate courts "had reasonable alternatives short of the drastic sanction of outright dismissal to address the apparent lack of conciseness in the statement."

Castille, J., dissenting - The dissenting justice noted that the trial and Superior Court orders were issue-specific and had held that 2 of the 8 matters complained of were "susceptible of meaningful review.....In short, appellants were afforded appellate review, but that review was restricted." The justice criticized the Court's finding of appellants' good faith, noting that it was "not a court of record with fact-finding capacity or function." He said that the lower court decisions were the "natural result of appellants' own Rule 1925(b) conduct," that "appellants took no action to protect their interests," and that the plurality overlooked appellants' lapses. He thought that the result of the plurality opinion would be "the filing of prolix statements as of right, without leave or explanation" and was a solution that would "reward...litigants who primarily have themselves to blame for their dilemmas."

Eakin, J., dissenting - The justice felt that the 1925(b) statement impeded rather than aided the trial judge in writing an opinion. "There comes a point when too much is simply too much."