Erieblogging: Day Three
Erieblogging: Day Four

Essay Question 5 from the 2012 CivPro Exam

Essay Question 5 (20 points)

Discuss the following statement. "Twombly and Iqbal are in conflict, not merely with the purpose of 8(a), but with the purpose and text of other Federal Rules of Civil Procedure."


First, I was looking for a discussion of why Twiqbal is in conflict with the purpose of 8(a) (which is - or was - notice, as is evident, for example, in the conclusory nature of the allegation of negligence in Form 11). Next I wanted a discussion of how Twiqbal is in conflict with the purpose and text of other FRCPs. Vague criticisms of Twiqbal was not what I was after. I wanted you to discuss particular FRCPs. The more specific and textually-focused your discussion, the better. This was your chance to show how much you knew about the Federal Rules. Here is a brief description of a few examples. (I am not suggesting that these are knock-down arguments, by the way, but I did not demand this. Indeed, you were free to argue the other side and say that Twiqbal is NOT in conflict with other FRCPs, but here too a discussion of particular FRCPs was what I wanted.)

R 11(b)(3) demands the following of the factual allegations in a pleading: “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Notice that it envisions the possibility that the allegations might lack evidentiary support and says that that’s OK at the pleading stage, provided that it’s reasonable to believe that evidentiary support will be found in discovery. But in Twombly, the fact that the plaintiffs lacked sufficient evidentiary support for their allegations of an agreement among the defendants was considered fatal. Twombly appears to demand evidentiary support at the pleading stage, in conflict with R 11.

R 9(b) is the heightened pleading rule for allegations of fraud and mistake. But even it says that “[m]alice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.” Here it appears to be saying that it is enough to allege the state of mind in a conclusory fashion. And yet Twiqbal says, concerning R 8(a) (the NON-heightened pleading rule), that a state of mind must be pleaded in a non-conclusory fashion. In Twombly, the plaintiffs were not allowed to simply allege that the defendants had an “agreement.”

The two above were nice because they were focused on the text of particular FRCPs. But arguments that focused on the purpose of particular FRCPs (such as R 11 or R 56) were fine too.  


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