Most important legal story of past 10 years -- summed up by the words "Iqbal" and "Twombly" -- involves denying court access for millions of Americans

Iqbal and Twombly lead to dismissal of valid cases.
(From orrick.com)

The most important legal story of the past 10 years probably has flown beneath the radar of almost every American who is not working in the legal industry. If I were to poll 10,000 random Americans and ask them what "Iqbal" and "Twombly" mean, they probably would look at me as if I were crazed.

But those words apply to two U.S. Supreme Court (SCOTUS) cases that have denied access to courts for hundreds of thousands (maybe millions) of everyday Americans -- black, white, brown, yellow, middle class, lower class. The cases attack the rights of plaintiffs only, while providing an escape hatch for elites connected to corporations, institutions, the moneyed, and the powerful.

"Iqbal" and "Twombly" come to mind because my wife, Carol, and I are dealing with their implications right now -- in a federal lawsuit connected to the wrongful foreclosure on our home of  25 years in Birmingham. We call it "The House Case," to distinguish it from "The Jail Case," a second federal lawsuit we've filed regarding my unlawful five-month incarceration in Shelby County.

But we are focusing only on "The House Case" for now because that is where "Iqbal" and "Twombly" are raising their ugly heads. If you ever are wronged in a federal matter -- employment discrimination, civil rights, police misconduct, diversity litigation (involving entities in multiple states), and so on -- you probably will hear those two words early and often. You should know, right up front, that corporate elites and right-wing judges foisted them upon us in order to greatly decrease your chances of achieving justice.

How does it work? We start with a little background and a brief history lesson. A Motion to Dismiss, filed by defendants, attempts to end a lawsuit before it starts. Such a motion essentially says, "The complaint is so deficient on its face that it must be tossed out immediately, so that we defendants will not be forced to endure discovery, summary judgment, and certainly not a trial on the merits." The two words highlighted in yellow are the key to a Motion to Dismiss. Defendants, especially those who actually are liable for wrongdoing, want to avoid discovery (interrogatories, depositions, production of documents, etc.) at all costs.

For roughly 70 years, Rule 8 of the Federal Rules of Civil Procedure (FRCP) made that a long shot for defendants. The rule required only that a plaintiff produce "a short and plain statement of the claim showing that the pleader is entitled to relief." That's a pretty low bar that, if cleared, allows a plaintiff to prove his case via discovery, with an eye toward clearing a second hurdle, summary judgment. If that is cleared, you are looking at hurdle No. 3 -- a trial on the merits.

The bar for plaintiffs remained relatively low when the U.S. Supreme Court issued a case styled Conley v. Gibson in 1957. It held that "a court cannot dismiss a complaint unless it is apparent that the plaintiff could prove 'no set of facts' that would entitle him to relief."

Was this fair? Absolutely. To launch a federal case never has been easy or inexpensive. These days, a plaintiff must pay a filing fee of around $500. To hire an attorney often requires an up-front fee, or retainer, of $5,000 or more. Those are factors that already discourage plaintiffs from filing frivolous lawsuits. Aside from that, the system long has included built-in rules that discourage the filing of baseless claims. If the complaint is short on specifics, defendants can file a Motion for a More Definitive Statement. If the plaintiff fails to deliver, his case can be dismissed. Rule 11 FRCP holds that a plaintiff's lawyer (and his client) can be hit with sanctions for failing to investigate a claim before filing a lawsuit that proves to be baseless.

Despite all of these safeguards, someone got the notion in the mid 2000s that federal courts were being flooded with frivolous lawsuits. I've been in federal courthouses dozens of times and seen no signs that they are being flooded with anything. About 90 percent of U.S. lawsuits are filed in state courts, and they can be crowded, loud, dingy places. By comparison, federal courthouses are like well-scrubbed monasteries.

The bogus concerns about bogus lawsuits led SCOTUS in 2007 to issue Bell Atlantic v. Twombly. It overturned Conley v. Gibson and ushered in an era of "heightened pleading standards." Unfortunately, Twombly presents a slight problem: No one seems to have a clue what it means. Here is the gist of the holding:

We do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed.

So now, a plaintiff did not have to plead a heightened level of specifics, but he did have to plead enough facts to make his claim "plausible," as opposed to "conceivable." Anyone have a clue what that means? What's the difference between "conceivable" and "plausible"?

In 2010, SCOTUS issued Ashcroft v. Iqbal, which added two components to Twombly: (1) The heightened pleading standards of Twombly apply to all federal lawsuits, not jut antitrust cases such as Twombly; (2) A court must accept factual allegations in a complaint as true, but that does not apply to legal conclusions.

No wonder the ABA Journal published a 2011 piece titled "For Federal Plaintiffs, Twombly and Iqbal Still Present a Catch-22." From the article:

Twombly and Iqbal are widely cited by defense lawyers as a means of getting frivolous complaints dismissed before the costly factual discovery stage. But plaintiffs say judges are using the standard as a docket-management tool, precluding legitimate claims from being heard. . . .

For plaintiffs, Twombly and Iqbal create an unfair burden. If they are expected to present detailed facts from the outset, rather than acquiring them through pretrial discovery, they may have to foot the bill to investigate on their own. That, they say, creates at best an unfair burden just to have a case heard on the merits, and at worst a complete barrier to the courthouse.

Where intent or discriminatory purpose is at issue, the cases present the circular logic of catch-22. In civil rights claims or motive-based torts—or in claims where the defendant’s conduct is by nature concealed, like fraud or antitrust—evidence is in the hands of the defense. Discovery remains the only opportunity to gather this kind of evidence. Yet if a meritorious claim can never get past the pleading stage, discovery—many claimants’ primary chance to uncover facts—is not even an option.

Prior to 2007, many defense lawyers would not file a Motion to Dismiss (MTD) because they knew it was unlikely to succeed. Now, almost any federal lawsuit will draw an MTD (multiple ones if more than one defendant is involved) because Iqbal and Twombly have made it a worthwhile proposition -- made it possible to deny plaintiffs even the hope of having a case heard.

How is all of this hitting home for Carol and me? "The House Case" includes 29 defendants, and if my counting is correct, each one has filed an MTD. Under the law, there is no way in hell any of these motions can be granted. (More on that in an upcoming post.) But we still have to face the possibility that some, even all, of our claims could be dismissed by U.S. District Judge R. David Proctor, who already has shown a tendency to cheat us.

This much we've seen for sure: When you have that many MTDs filed in one case, you are likely to see outrageous misstatements of fact and law. We have answered every nutty claim that has come our way, and in a series of upcoming posts, we will show what it's like to fight back against defendants who have been emboldened by Iqbal and Twombly.


(To be continued)