Civil Procedure

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.

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.

Many new practice questions

For this year's civpro class: Here are many essay and multiple choice questions and answers that are on material that we have covered up to this point. Note: recent SCt cases, such as Daimler may not be taken  into account in the model answer. Many of these overlap with the ones I posted on 11/9, but this is a more comprehensive set.

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New Paper on SSRN

Just posted a new paper on SSRN. I argue for the following limit on states' power to regulate the procedure of federal courts: Their power cannot be vertical. They cannot direct their law solely to federal courts within their borders. This may not seem that significant, but it is surprising how often law professors and federal judges have assumed that vertical power exists. They're wrong.