Will the Notice Pleading Restoration Act be Enough?
The U.S. Supreme Court decisions in Ashcroft v. Iqbal and Bell Atlantic v. Twombly has made it much easier for Defendants to have Plaintiff’s cases dismissed before there is even an opportunity to begin discovery. Both cases interpreted Rule 8 of the Federal Rules of Civil Procedure and together require that sufficient factual allegations are made in the complaint. So basically, Plaintiff attorneys need to do discovery in order to get the information need to prepare a complaint that will not be dismissed under Twombly and Iqbal in order to be able to be given the opportunity to then begin discovery. Sequentially, something is inherently wrong with what the Supreme Court is now requiring at the pleading stage.
Senator Arlen Spector has proposed legislation, known as the Notice Pleading Restoration Act of 2009, that will change this seemingly illogical decision…..or will it. The proposed Bill does not really provide a standard for dismissal of claims in federal court, but rather simply says that the standard used should be the one that the Supreme Court used in Conley v. Gibson. This is problematic because unlike stating an explicit standard, reference merely to the standard in Conley leaves open the possibility for different interpretations of what that standard exactly is. I mean, Twombly and Iqbal could be considered explanations of what the standard is in Conley. It leaves the door open to further debate as to what the Bill really does and what the Conley standard really means. Although Spector’s intent may be to go back to more liberal pleading requirements, it’s the actual words in the Bill that that are going to be interpreted, and as it stands, those words alone to not make Spector’s intent definitively clear.
