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Wednesday, December 14, 2016

The Real World of Iqbal and Twombly: How defense lawyers use bogus Motions to Dismiss to close the courthouse doors before they've even opened


Iqbal and Twombly have greatly increased the chances
that legitimate claims will be dismissed in
federal court before they even get started.
(From orrick.com)
A pair of abominable U.S. Supreme Court decisions -- known collectively as "Iqbal" and "Twombly" -- have denied access to federal courts for hundreds of thousands (maybe millions) of everyday Americans. If that weren't bad enough, the cases have helped clog the courts over the past 10 years or so with dubious Motions to Dismiss, many of which resort to gross misstatements of fact and law in an effort to get defendants off the hook before a lawsuit even starts.

My wife, Carol, and I have seen evidence of this firsthand, as Motions to Dismiss flow in from our federal lawsuit about the wrongful foreclosure on our Birmingham home of 25 years. ("The House Case," as distinguished from "The Jail Case," which also is pending and involves my unlawful five-month incarceration in Shelby County.) In addition to federal and constitutional issues, "The House Case" involves a number of state-tort claims, including defamation, tortious interference, and invasion of privacy.

This is the first in a series of posts where we will reveal the con games some defense lawyers play in an effort to keep their clients, many of then elite individuals or organizations, from being held accountable for wrongdoing. We will call this "The Real World of Iqbal and Twombly," two cases that hardly anyone can decipher and which should have been overridden by Congressional action some time ago.

To put it bluntly, there is no way in hell "The House Case" can be dismissed, in whole and probably not in part. But that hasn't kept members of the defense bar from filing outlandish motions toward that very end -- and in the process, they have caused months of delay in a case that already should be deep into discovery, which defendants likely want to avoid at all costs.

For the first trick in our series, we will show that numerous defense lawyers in the case don't even know the fundamental law of "Iqbal" and "Twombly," as it relates in the Eleventh Circuit (covering Alabama, Georgia, and Florida). To illustrate this, we will borrow from a Motion to Dismiss (MTD) filed by Hearst Corporation, publisher of the women's fashion magazine Marie Claire, which published a defamatory article about me in October 2015.

In addition to a couple of its in-house lawyers, Hearst is represented by the Birmingham firm of Lightfoot Franklin and White. From the Hearst MTD:

Plaintiffs’ defamation claim against the Hearst Defendants is deficient as a matter of law and should be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). In order to survive a Rule 12(b)(6) motion, a complaint must include sufficient “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Dismissal is appropriate when the plaintiff has failed to allege “enough facts to state a claim to relief that is plausible on its face,” including when the complaint does no more than provide “labels and conclusions” or a “formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).

What is happening here? Hearst and its lawyers are trying to hold us to the ill-defined "heightened pleading standards" of Iqbal and Twombly. But Hearst and all of the other defendants who made similar arguments have a slight problem -- there is no heightened pleading standard in the Eleventh Circuit.

We know that from a case styled Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010), which holds:

We conclude that the district court erred in applying a heightened pleading standard to Randall's complaint. After Iqbal it is clear that there is no "heightened pleading standard" as it relates to cases governed by Rule 8(a)(2), including civil rights complaints.

Rule 8 of the Federal Rules of Civil Procedure (FRCP) has determined the bar that plaintiffs must clear to survive a Motion to Dismiss -- and it has applied since the federal rules were adopted in 1938. Rule 8 holds that a plaintiff must provide:

"a short and plain statement of the claim showing that the pleader is entitled to relief."

That's the standard in the Eleventh Circuit, and our complaint easily meets it. (The Complaint is embedded at the end of this post, along with the Hearst Motion to Dismiss.) I would argue that we also easily meet the Iqbal and Twombly "plausibility standard," but that is a moot point because Rule 8 holds sway for almost all cases in the Eleventh Circuit.

I'm not the only one who knows what the actual pleading standard is in the Eleventh Circuit. U.S. District Judge R. David Proctor, who is handling both of our pending cases, has indicated he knows it, too. That comes from Proctor's memorandum opinion in a case styled Bey v. Abrams, ND Alabama (2015). Here are Proctor's words from Bey: (Note: Proctor's language is a confusing mishmash of findings from Iqbal and Twombly, and Randall. But he acknowledges the Randall finding and seems to indicate it is binding law.)

To survive a motion to dismiss, a complaint must "state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal,556 U.S. 662, 678 (2009). Although "[t]he plausibility standard is not akin to a `probability requirement,'" the complaint must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." Id. A plausible claim for relief requires "enough fact[s] to raise a reasonable expectation that discovery will reveal evidence" to support the claim. Twombly, 550 U.S. at 556. After Iqbal, which applied the Twombly pleading standard in a civil rights/qualified immunity context, "there is no longer a `heightened pleading' standard in `cases governed by Rule 8(a)(2), including civil rights [cases]' under § 1983." Saunders v. Duke, 766 F.3d 1262, 1266 (11th Cir. 2014) (quoting Randall v. Scott, 610 F.3d 701, 710 (11th Cir. 2010))

While Proctor's opinion hardly is a model of clarity, the bottom line is this: There is no heightened pleading standard in the Eleventh Circuit, and our case is governed by the "short and plain statement" standard of Rule 8.

This is one of many instances where defense lawyers have tried to muddy the waters in "The House Case." We will look at other examples shortly.


(To be continued)








12 comments:

Anonymous said...

I don't understand how a plaintiff is supposed to create a fact-heavy complaint when there hasn't been fact-finding in the case.

legalschnauzer said...

You raise a great point, @10:02, one the ABA Journal has made about Iqbal and Twombly.

Anonymous said...

Looks like you're headed for a loss on the Marie Claire article. Sloppy work on your part will lead to a dismissal. Maybe get a lawyer next time.

Clifton Walker said...

Don't you wish somebody had predicted that you would face these motions and that one of the motions to dismiss would be successful?

Anonymous said...

How is a plaintiff supposed to prove his case before it's even started? I don't understand that one.

legalschnauzer said...

@10:14 --

I see no indication that you have any idea what is going to happen in the House Case, which involves much more than just the Marie Claire article. Why don't you point out an example of sloppy work on my part, where my arguments or citations to law are improper?

legalschnauzer said...

Clifton --

I admire your consistency; your comments always are ignorant, and you can count on it like a rooster crowing. Two points:

(1) I knew the Motions to Dismiss were coming. It's standard procedure, especially in the age of Iqbal and Twombly. I didn't need anyone, especially you, to tell me that.

(2) You seem to be back in the prediction business, claiming one of the Motions to Dismiss might succeed. Well, that would leave about 28 others to fail, meaning our case marches forward. I appreciate the confidence you've express in our case. Thanks.

Anonymous said...

Are lawyers taught to pick and choose the law they want to follow? It seems they cite portions of the law they like -- even if they don't apply to a particular case -- while ignoring the law they don't like.

The Randall v. Scott case seems pretty cut and dried to me. But lawyers from Lightfoot firm ignore it because it doesn't support their Motion to Dismiss.

Seems fundamentally dishonest to me.

legalschnauzer said...

That's exactly what happens, @11:52. We don't have a "justice system," we have an "underhanded competition system." Lawyers are taught to win at all costs, whether it has anything to do with justice or not.

It is, as you state, "fundamentally dishonest," and that's probably why the profession attracts so many people, including my brother, who are fundamentally dishonest.

Anonymous said...

I am lawyer, represent both plaintiffs and defendants. I use these cases in motions to dismiss when I represent defendants. And I am stuck with them when I have plaintiff's. Based on that experience I agree with you: these cases are wrong - they put to much burden on the plaintiff. They also put the judge in the role of evaluating allegations on plausibility. That is more of a role for the jury. These precedents are bad. But I don't think they will be reversed any time soon.

That's why I always try to go to state court when I have a plaintiff. Federal courts are too defense oriented in my opinion.

legalschnauzer said...

Thanks for your comment, @11:59. It's refreshing to receive a comment that has everything we hope to have in a comment -- it's thoughtful, insightful, educational, and well stated. Plus, it comes from someone who has been on the front line and knows what he's talking about.

Wish I could hire you as a co-blogger. Unfortunately, I'm not in a position to pay much (anything, actually) at the moment. But perhaps you could start lawyer blog of your own. I think you have the potential to do a good one.

Also, you raise a point that I have failed to make. My understanding is that Iqbal and Twombly do not apply in state courts. Is that correct?

Thanks, again.

Anonymous said...

Appreciate your kind words, but I'm afraid blogging is not in the cards for me. For now, I will content myself with being a reader. I don't always agree with you, but I enjoy your blog. I think folks like you are a critical part of a free society.

You are correct about Twombly/Iqbal: they are binding in the federal courts only. These are procedural cases interpreting rules of procedure. The state courts are free to adopt their own rules of procedure so Twombly and Iqbal are irrelevant unless the state courts choose to follow them voluntarily. In contrast, the federal courts must follow them - they have no choice. Some states model their rules of procedure on the federal rules and may take these precedents more seriously than others. But even so, that is not always the case. For example, in my state we have adopted the federal rules including Rule 12(b)(6). But our state courts do not follow Iqbal/Twombly.