Friday, August 14, 2009

Twombly/Iqbal Requires Identifying Allegedly Violated Statute

Although even the academic critics of Twombly/Iqbal have agreed with us that vague "you violated the FDCA" pleadings should not survive a motion to dismiss, apparently there are still lawyers on the other side who think they should be able to get away with violation claims that do not identify what statute/rule/regulation was supposedly violated.

Thus, in Chappey v. Ineos USA LLC, 2009 WL 790194 (N.D. Ind. March 23, 2009), the court granted a motion do dismiss where the complaint failed to allege the supposed violation that was the basis for a "negligence per se" claim in an environmental contamination case. Here's what the court had to say:

[Plaintiff] alleges that Defendants “violated various statutes, ordinances or regulations without justification or excuse.” Defendants believe the negligence per se claim should be dismissed because no statute or regulation was identified, thus the count adds nothing to the already pled negligence count, and does not give Defendants fair notice of the basis of Plaintiff's claim. In her reply, [plaintiff] argues that she has complied by filing a short plain statement, and that Bell Atlantic [v. Twombly] does not require that a negligence per se claim reference a specific statute. . . .

Notice pleading requirements suggest that Plaintiff must plead the specific statute on which she bases her claim for negligence per se. See Bell Atlantic, 127 S.Ct. at 1964-65 (holding the complaint must describe a claim in sufficient detail to give defendant fair notice of what the claim is and the grounds upon which it rests). Here, where [plaintiff] is bringing a claim based upon specific statutes, regulations, or ordinances, it logically follows that she must plead the statute(s) upon which the claim is based. [A] . . . generic complaint that defendant violated unspecified local, state and federal statutes, guidelines and regulations does not provide fair notice of [plaintiff's] claim. Similarly, because [plaintiff] has failed to identify a specific statute, regulation, or ordinance to support her claim of negligence per se, Defendants do not have fair notice of the claim, and it should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).

2009 WL 790194, at *2-3 (various citations and quotation marks omitted).

Defense counsel: Chappey means you've got something to cite besides plain common sense to argue the violation claims must specifically plead what it is that the defendant allegedly violated.

Critics of Twombly/Iqbal: Chappey is an excellent example of just how much plaintiff's counsel thought they could get away with before Twombly. Don't tell us anymore that a tightening up of pleading standards wasn't long overdue.

1 comment:

Andrew Oh-Willeke said...

This decision sounds incorrect to me. The question in a motion to dismiss is whether the FACTS in a pleading state a cause of action. Neither Twombly nor Iqbal says anything about pleading legal theories themselves.

I've always understood that citations to law in pleadings were like headings, surplussage for easy reading. Indeed, as in opening arguments, legal citations are disfavored in pleadings.

Now, one should still be able to identify a legal theory that the facts support in a response to a motion to dismiss, but the absence of a legal theory or citation in the pleading itself should be irrelevant.

For example, in a negligence per se case where the allegation is that you drove on the wrong side of the road, the allegation that you drove on the wrong side of the road should be sufficicent, even if the citation to the relevant traffic law is absent. A trial court ruling dismissing a case on the grounds that factual allegations that you were not driving on the right side of the road are insufficient would be error. Ultimately, judges, not parties, supply the law. This is why questions are law are reviewed de novo.

There are a host of cases out there that hold that fact that state a cause of action state a claim, even if the legal theory is wrong or not stated in the pleading itself. I hadn't read Iqbal or Twombly to supercede those cases. A complaint is not a motion for summary judgment.