SCOTUS:Clarifies pleading standards; Will VT courts follow suit?

UPDATE (3/24/2008): See more recent post

Thursday, May 24, 2007
Is Twombly the Death-Knell for Notice Pleading?
Posted by Marty Lederman at 09:16 AM
In its decision Monday in the antirtust case of Bell Atlantic v. Twombly <http://supremecourtus.gov/opinions/06pdf/05-1126.pdf> , the Court expressly (and sua sponte) rejected the half-century-old nostrum from Conley v. Gibson that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id., at 45-46. The complaint in Twombly alleged a Sherman Act conspiracy (that the petitioners "agreed not to compete with one another"), but did not specifically allege any facts that would establish such an agreement -- and the Court therefore held that the complaint should be dismissed for failure to state a claim. (See Mark Botti's helpful summary here <http://www.scotusblog.com/movabletype/archives/2007/05/commentary_mond.html> .)
The Twombly opinion not surprisingly has caused quite a stir in civil procedure circles. Does it signal the rejection of notice pleading and, if so, how can it be reconciled with the Court's decisions in Swierkiewicz (2002) and Leatherman (1993)? Can its holding somehow be limited to certain sorts of Sherman Act allegations, or does it have much broader implications for pleading practice?
It looks as though these questions will be hotly debated in the academy <http://lawprofessors.typepad.com/civpro/> and lower courts in the near future. Michael Dorf has a very helpful initial take <http://michaeldorf.org/2007/05/end-of-notice-pleading.html> on the alternative readings of Twombly that are already framing that debate. See also Scott Dodson's reading here <http://lawprofessors.typepad.com/civpro/2007/05/prof_scott_dods.html> . By contrast, Einer Elhauge <http://volokh.com/archives/archive_2007_05_20-2007_05_26.shtml> calls the case "quite insignificant," not to mention unhelpful for resolving longstadning questions with respect to antitrust complaints.
In general, keep your eyes on the Civil Procedure Prof Blog <http://lawprofessors.typepad.com/civpro/> , where the issue is sure to continue to receive a lot of attention..

Comments
Twombly does not turn away from notice pleading, as Footnote 10 makes clear. Rather, the Court held that an allegation of a conspiracy does not provide adequate notice to the defendants, in the absence of such details as the "specific time, place, or person involved in the alleged conspiracy." The Court contrasted Twombly's allegation to that set forth in model Form 9: the defendant struck the plaintiff with his car while the plaintiff was crossing a particular highway at a specified date and time. The latter allegation is sufficient under Rule 8, because (unlike the Twombly complaint) it provides sufficient notice of the alleged misconduct.
But even though it does not abandon notice pleading, Twombly is nonetheless an important decision. Particularly when the defendant is a corporation, tort complaints very often are fuzzy regarding who committed the allegedly act and when they did it. Twombly will, and should, cause complaints raising a variety of claims to be dismissed under Rule 12(b)(6). In the employment discrimination area, complaints in cases like Swierkiewicz are unassailable because they focus on a specific employment decision (e.g., a discharge decision) and thus provide the notice that a defendant needs to prepare a defense. But in cases raising more generalized discrimination claims (e.g., that the plaintiff was subject to a work environment that was racially harrassing in nature, or that the corporation maintained a company-wide personnel "policy" that tolerated sex discrimination in individual employment decisions), the complaint will need to recite specific facts supporting those claims in order to survive a motion to dismiss.
Many complaints filed under the Alien Tort Statute may also be ripe for 12(b)(6) dismissal. ATS plaintiffs often point to human rights abuses by a foreign government, and then allege that a corporation doing business in that foreign country aided and abetted the abuses -- based solely on factual allegations that the corporation provided various types of material and logistical support to the foreign government. Twombly suggests that those types of complaints should be dismissed (for reasons quite apart from the separate issue of whether aiding and abetting claims are actionable under the ATS), in the absence of an allegation of specific decisions to aid the human rights violations.
Posted by: Richard Samp <http://rsamp@wlf.org> <http://profile.typekey.com/Richard%20Samp> at May 24, 2007 11:31 AM

VT Wrongful Death Statute of Limitations

Under Vermont law, the personal representative of a decedent's estate must generally commence a wrongful death action "within two years from the discovery of the death of the person." 14 V.S.A. § 1492(a). But "[i]f the death of the decedent occurred under circumstances such that probable cause is found to charge a person with homicide, the action shall be commenced within seven years after the discovery of the death of the decedent or not more than two years after the judgment in that criminal action has become final, whichever occurs later." Id.

It appears that the legislature amended 14 V.S.A. § 1492(a) after the Leo-Coneys case, Leo v. Hillman 164 Vt. 94 (1995), to allow the estate to benefit from the State's development of a case against the alleged killer. Since "probable cause" approximates the preponderance of the evidence standard, the legislature may have assumed that if the State can ultimately make that showing, the estate can too and should be given the benefit of more time to do so (the State has no statute of limitations). Evidence about the killing may not be sufficient 2 years after the death to warrant a wrongful death action. Rather than requiring estates to file timely but possibly meritless wrongful death suits, the estate is allowed to piggyback the State's efforts, whether or not the State obtains a conviction (if probable cause is found, the amended Wrongful Death 2-year period runs from when the criminal judgment becomes final, regardless of the result).