Cranking out the 12(b) objection memoranda.

One more post on the project. I feel the quality of my blogging goes down whenever I have to give a response to the U.S. District Court. This is no problem, of course, because I want to give that response, but, when I show up here on the blog, I realize that some of you regular readers are getting stiffed. It might leave you pissed.

As you know, I went to Temple Law School years ago, but I don’t litigate. I think our court system is fundamentally broken, and best avoided if possible.

However, as it is really the only alternative to resolving problems when your calls and e-mails go unanswered (and the government’s administrative offices get given the two-year runaround), I find myself in federal court.

When I was in law school, we learned about Rule 12(b), which lists a number of the kinds of preliminary objections that an American lawyer can make in the federal court system. There are seven, as follows:

(1) lack of subject-matter jurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process;

(5) insufficient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

In the early 1990’s, what you learned was that of all these seven, number 6 was the least merit-worthy, “failure to state a claim upon which relief can be granted”, because the federal system had adopted notice pleading. So long as the plaintiff could make out any possible case (even 1 in 100,000 shot) that they had a cause of action, it was highly unlikely that the federal judge would dismiss on a 12(b)(6). This has been misconstrued as an invitation for people to clog up the court system with their 1 in 100,000 longshots. But what it really did was assure that plaintiffs were not going to be shut out ahead of the chance to offer their arguments on the merits. By mid 20th century standards, that is what was considered “fair”, and I think today, still is.

I have mentioned these two U.S. Supreme Court cases, though, before, which have thrown a monkey wrench into what is now called “Conley notice pleading”. These two are Bell Atlantic v. Twombly and Ashcroft v. Iqbal. When people who write about both of them want to be cute, they say “Twiqbal”. But you should not be cute.

What Twombly and Iqbal seem to have done is layer a “plausibility” requirement on top of notice pleading. Depending on the court and the judge, this has changed the 12(b)(6) analysis to where the plaintiff not only has to state a cause of action, but additionally, provide “more” to show that it is a cause of action with some weight.

I am fairly confident that, in courts of the Second Circuit, where mine is now located, are taking Twombley and Iqbal to mean that notice pleading continues, with the proviso that a case that presents a fact pattern that isn’t “plausible” won’t move forward. In fact, I got that quote in a case that I cited:

“Therefore, notice pleading supported by facially plausible factual allegations is all that is required — nothing more, nothing less.”

In re Morgan Stanley Info. Fund Secs. Litig., 592 F.3d 347, 358 (2d Cir. 2010).

You might think this is all neither here nor there, but I always have in the back of my mind how Pennsylvania judges operated in the days of the shenanigans at St. Clement’s Episcopal Church in Philadelphia. Philadelphia judges can’t help but leave an impression on you, and the odds are, it won’t be a good one. In Pennsylvania, the equivalent to 12(b)(6) is (was?) something called the demurrer. Although I’ve been told that demurrer objections have been “reformed” over the past 20 years, I doubt anything gets reformed in Pennsylvania. This is, in some ways, the northernmost banana republic of the Western Hemisphere.

How demurrer has been used in Pennsylvania is that if a judge didn’t want to hear a case, he or she (mostly he-s) would sustain the opposing counsel’s demurrer. That was that.

You can see how a Southerner like Chief Justice Roberts would want to convert the 12(b)(6) into a demurrer. (The South, as a region, is the second northern-most banana republic. I know I am forgetting about Rhode Island, but I’ve never been there. This is all an aside . . . )

With a demurrer, the judge is at liberty to pick the cases that he or she feels are worth the time, or that don’t present issues that are ones the judge does not want to deal with.

So changing 12(b)(6) into a Pennsylvania-style demurrer would be a disaster for the U.S. court system.

As I am doing the second memorandum, I am thinking how facts pleaded, taken as true under 12(b)(6), should be enough. But I can’t help to shake the cloud of demurrer that is cast overhead. Is it simply the pleaded facts, or does the whole case have to have a nice, shiny appeal to it? Who knows? At least, who knows at this stage? I have to be confident that federal practice has not radically changed in a way that has transformed us all into denizens of the Deep South.