Actually (and to no one’s surprise), I do not have federal pleading all figured out. But federal civil pleading is the topic of this draft article. The article considers various aspects of federal pleading under the Federal Rules of Civil Procedure and following the Supreme Court’s decisions in Twombly and Iqbal in terms of what appear to be the three major types of pleading defects: factual insufficiency, legal insufficiency, and insufficiency of proof. The article also considers the problems posed by frivolous complaints and the divergence of federal and state pleading standards. Along the way, the article reaches a number of provocative and somewhat unconventional conclusions. I look forward to receiving your comments.
The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, both of which deal with federal civil pleading standards, are important, but misunderstood. This Article hopes to ease some of the confusion and place these decisions in a proper perspective. Viewed in terms of the two primary ways in which an action may be dismissed for failure to state a claim upon which relief can be granted—factual insufficiency and legal insufficiency—coupled with an understanding of a plaintiff’s obligations under Federal Rule of Civil Procedure 11, these decisions arguably have resulted in little practical change in the overall federal pleading scheme. What these decisions have done, though, is brought renewed attention to the requirement that a plaintiff’s allegations be supported by evidence, and the problems caused thereby. But this Article argues that concerns regarding a plaintiff’s insufficiency of proof should be resolved not through Federal Rule of Civil Procedure 8 and the requirement that a plaintiff “show” that it is entitled to relief—as the Supreme Court appears to have done—but rather through Rule 11. This Article also argues that a federal court action dismissed for failure to state a claim because of insufficiency of proof should not be given claim preclusive effect in those state courts with less stringent pleading standards.