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)

Garrison Strange Complaint2 by Roger Shuler on Scribd

Garrison-strange, Hearst MTD by Roger Shuler on Scribd