Waiving Twiqbal

This issue came up in the review session (I'm afraid I'm not quite sure who brought it up): When is a Twombly-Iqbal (Twiqbal) defense waived by failing to mention it in a timely fashion?  Consider the following two scenarios.

Scenario One: P sues D in federal court.  D brings a motion to dismiss for lack of personal jurisdiction, which the court denies.  D then brings a motion for more definite statement, on the grounds that the pleading standards in Twombly and Iqbal (Twiqbal) have not been satisfied.  Is the defense waived by failing to bring it up in the first motion?

Scenario Two: P sues D in federal court.  D answers the complaint, without introducing the objection that the standards in Twiqbal have not been satisfied.  Later D brings up the Twiqbal defense, perhaps in conjunction with a motion for more definite statement.  Is the defense waived?

If one considers the Twiqbal defense to be, or to be analogous to, a motion to dismiss for failure to state a claim, then it should not be waived in either scenario.  The defense of failure to state a claim can be brought up at any time.  The only exception is that the defense is generally considered waived if it is brought up for the first time on appeal. (In addition, if one fails to bring up failure to state a claim in one's first preanswer motion, and the defense was available at the time of that motion, one cannot bring it up in a second preanswer motion.  But that is no great loss, because one can bring it up in one's answer or later in a motion for a judgment on the pleadings.)

In Twombly the Twiqbal defense was indeed characterized as failure to state a claim.  But in Iqbal the court made clear that the standards in Twiqbal come from the pleading requirements in FRCP 8(a), not from the demands of stating a claim.  One might state a claim and nonetheless be insufficiently specific to satisfy Twiqbal and FRCP 8(a).

So understood, the Twiqbal defense would be waived in Scenario Two, although not Scenario One.  Answering the complaint waives any argument that the pleading standards in FRCP 8(a) were not satisfied  I cannot find a court saying as much, but that is what courts have concluded with respect to the defense that the pleading standards in FRCP 9(b) having not been satisfied. U.S. ex rel. Lam v. Tenet Healthcare Corp., 481 F.Supp.2d 689 (W.D. Tex. 2007); Todaro v. Orbit Intern. Travel, Ltd., 755 F.Supp. 1229 (S.D.N.Y. 1991).

There’s even an argument that the Twiqbal defense is waived in Scenario One. Under FRCP 12(g), “a party that makes a motion under [Rule 12] must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.” The only exceptions identified are those in 12(h)(2) (which concerns failure to state a claim and failure to join a necessary party) and 12(h)(3) (which concerns lack of subject-matter jurisdiction).  On this argument, Twiqbal should be treated like the other waivable defenses in FRCP 12(b)(2)-(5) (personal jurisdiction, venue, service, process).  The Twiqbal defense was available when D made his first motion for lack of personal jurisdiction and is therefore waived.


My Mother

My mother died on Thursday. This is the obituary that the kids put together for the Santa Rosa Press Democrat:

    Loving and loyal mother, wife, sister, and friend, Karen Green Zimmerman died on Thursday, September 29 in Santa Rosa, due to complications from Lewy Body dementia.
    Karen was born in Berkeley on January 4, 1934 to Tauno and Irja Ahonen, both Finnish immigrants. She grew up beautiful and brilliant — the belle of Berkeley High School and a bathing beauty at Twain Harte Lake, where the Ahonens spent their summers. Karen received her Associate of Arts degree from UC Berkeley in 1953 and was elected to Phi Beta Kappa in her junior year, but she left college before getting a bachelor’s degree to marry Bliss Green. The two had five children, the first four in rapid succession — at one point she was caring for four children under the age of six. They settled in Santa Rosa in 1965.
    Once her youngest was in school, Karen began working as a receptionist at what is now the law firm of Geary, Shea, O’Donnell, Grattan & Mitchell. But her natural intelligence and industry could not escape the eagle eyes of Bill Geary, and she soon rose up the ranks, eventually becoming the firm’s office manager and probate paralegal.
    Not long after her divorce from Bliss, Karen was shopping in the Rincon Valley Safeway when she bumped into her sweet sixteen summer love — the dreamy lifeguard from Twain Harte Lake, Gerard Zimmerman. Gerard had recently moved from Modesto and, without knowing Karen lived in Santa Rosa, chose an apartment only a few blocks away from her house. It was kismet, and they were married in 1988.
    When Karen retired from the Geary firm in 1996, she and Gerard moved to their beloved Twain Harte, where they were big golfers, hikers and skiers, and an essential part of the Twain Harte social scene. When Gerard died in 2009, a part of her died too. In 2013, she moved back to Santa Rosa. She spent the final 18 months of her life in the loving care of the Wild Rose Care Home, where she was something of a staff favorite.
    Karen is survived by a brother, Ronald Ahonen of Los Angeles; five children — Janet Leisen (Corrie) of Santa Rosa, Dayna Green Burgeson (Adrian) of Newcastle, California, Susan Green of Santa Rosa, Michael Green (Kiersten) of Williamsburg, Virginia, and Linda Green Burns (Mark) of Chicago; a stepdaughter, Nancy Hoyt (David) of Twain Harte, California; six grandchildren; and two great-grandchildren.
     Any gifts in her memory should be to:
     The Lewy Body Dementia Association – lbda.org.


How to dismiss for failure to satisfy Twiqbal?

Jackson Key pressed me on the following problem: Twiqbal pleading standards, the Court has now made clear, come from Fed. R. Civ. P. 8(a)(2) (in particular, the requirement of "showing that the pleader is entitled to relief"). But 8(a)(2) says nothing about dismissal for failure to satisfy these standards. Initially, the proper response is a motion for a more definite statement under 12(e). But what if, after the attempt at a more definite statement, the plaintiff still fails to satisfy Twiqbal? In Twombly, the Court spoke of dismissal for failure to state a claim under Fed. R. Civ. P 12(b)(6), but we now know that's wrong. Stating a claim and satisfying 8(a)(2) are different things.

Fed. R. Civ. P. 12(e) says the following: 

A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

In Sierocinski v. E. I. Du Pont de Nemours & Co., 103 F.2d 843 (3rd Cir. 1939), the trial court relied upon the ability to strike the allegation of negligence that (it thought) failed to satisfy 8(a)(2). After striking the allegation, the complaint failed to state a claim and could be dismissed under 12(b)(6). But courts don't rely on that two-step process anymore. So what is their method of dismissal? I could not find a court saying explicitly, but the same problem  has arisen for a long time with respect to Fed. R. Civ. P. 9(b)'s requirement for heightened pleading concerning allegations of fraud. Here courts simply appeal to 12(e) as the ground for dismissal. E.g. Ianieri v. Monmouth Investments, Inc., 1989 WL 150013 (D.N.J.  December 08, 1989). My guess is that they consider the dismissal to be an "appropriate order." The same should be true of Twiqbal.

 


Mullane and Translation

Amber Leasure-Earnhardt asked in the review session why Mullane's requirement of notice reasonably calculated to apprise the defendant of the pendency of the action would not require translation of the summons (and complaint?) into the defendant's language when one knows the defendant does not speak English. (After all, the known mental incompetence of the defendant cannot be ignored in determining what is adequate notice under Mullane.) But courts have found otherwise.


Alfred Hill

I just found out that Alfred Hill, a professor of law at Columbia, died a few months ago. My initial exposure to Hill’s work on Erie was curious. In looking at current articles on the topic, I kept seeing citations to articles Hill wrote in the 1950s: State Procedural Law in Federal Nondiversity Litigation and The Erie Doctrine in Bankruptcy, both published in the Harvard Law Review, and a two-part article in the Northwestern University Law Review called The Erie Doctrine and the Constitution.  Citation to half-century-old articles is very unusual in legal scholarship. When I took a look at them, I found out why they were so popular. They were masterful — written with a clarity and insight that made them still useful today. Indeed, I still often find that a Hill article is the only one that discusses a problem I am interested in. I then discovered that Hill, who I had assumed died decades before, was still alive. A number of times I considered emailing him to let him know how much I thought of his work. I never did and now, I’m sorry to hear, it is too late.