Following the leader: Twombly, pleading standards, and procedural uniformity

Columbia Law Review

Volumn 108, Issue 6, 2008, Pages 1431-1470

  Chen, Z W Julius ^a  

^a NONE

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EID: 56849127326     PISSN: 00101958     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (442)

1. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1968 (2007) (emphasis added)
2. (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
3. Id. at 1974. This Note refers to the Twombly standard as "raised" pleading. This term is distinct from "heightened" pleading.
4. See infra note 75 and accompanying text.
5. See, e.g., Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("We are not alone in finding the opinion confusing. ");
6. Iqbal v. Hasty, 490 F.3d 143,155-57 (2d Cir. 2007) (noting uncertainty in interpretation because of "conflicting signals");
7. Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 Va. L. Rev. In Brief 135, 141-42 (2007), at http:// virginialawreview.org/inbrief/2007/07/09/dodson.pdf (on file with the Columbia Law Review) (listing lingering questions);
8. Ettie Ward, The After-Shocks of Twombly: Will We "Notice" Pleading Changes?, 82 St. John's L. Rev. 893, 918-19 (2008) (same).
9. See, e.g., The Supreme Court, 2006 Term-Leading Cases, 121 Harv. L. Rev. 305, 309-15 (2007) [hereinafter Leading Cases],
10. Twombly, 127 S. Ct. at 1978 (Stevens, J., dissenting).
11. See generally John B. Oakley 8c Arthur F. Coon, The Federal Rules in State Courts: A Survey of State Court Systems of Civil Procedure, 61 Wash. L. Rev. 1367 (1986) (examining extent of adoption of Federal Rules among states);
12. John B. Oakley, A Fresh Look at the Federal Rules in State Courts, 3 Nev. L.J. 354 (2002) (updating survey of state adoption in light of recent Federal Rules amendments).
13. See Richard A. Halloran, A Return to Fact Pleading?: Viable Complaints After Twombly, Ariz. Att'y, Sept. 2007, at 20, 24 (praising Twombly's ability to confront the "strain that rising caseloads and tight fiscal constraints have imposed on [Arizona] courts").
14. See, e.g., Brian J. Pollock, Sensible Pleading Requirements: Arizona Courts Should Adopt Twombly, Ariz. Att'y, Sept. 2007, at 26, 26 ("'[P]rocedural uniformity is a desirable and important objective.'"
15. (quoting USW. Commc'ns, Inc. v. Ariz. Dep't of Revenue, 14 P.3d292, 295 (Ariz. 2000))).
16. See infra Part II.B. 1-2.
17. By "federal interstate uniformity" this Note refers both to uniform procedures across federal district courts and consequently across states as well. Professor Subrin separates these types of uniformity into "interdistrict court uniformity" and "interstate uniformity," respectively. Stephen N. Subrin, The New Era in American Civil Procedure, 67 A.B.A. J. 1648, 1650 (1981) [hereinafter Subrin, New Era].
18. By "federal-state intrastate uniformity" this Note refers to the use of uniform procedural rules within a particular state's trial courts, whether state or federal.
19. See Judiciary Act of 1789, ch. 20, 1 Stat. 73.
20. Act of Sept. 29, 1789, ch. 21, §2, 1 Stat. 93, 93. Commentators regularly refer to the statute as the "Conformity Act" or "Process Act."
21. See, e.g., 4 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §1002, at 11 (3d ed. 2002).
22. Ellen E. Sward, A History of the Civil Trial in the United States, 51 U. Kan. L. Rev. 347, 381 (2003)
23. (quoting Act of Sept. 29,1789 §2).
24. See generally Stephen N. Subrin, How Equity Conquered Common Law; The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 914-21 (1987) (providing overview of law and equity systems).
25. For excellent histories of these Acts, see generally 4 Wright 8c Miller, supra note 13, §1002;
26. Charles Warren, Federal Process and State Legislation (pts. 1 & 2), 16 Va. L. Rev. 421,546 (1930).
27. Warren, supra note 15, at 426-27 (raising likelihood of "'endless jealousy and inconvenience'"
28. (quoting Brown v. Van Braam, 3 U.S. 344, 352 (1797))).
29. Id. at 427-28 (expressing that federalism values informed statute's drafting).
30. Van Braam, 3 U.S. at 352,
31. Uniformity was a central consideration in drafting the Conformity Act of 1792. See 2 Annals of Cong. 1845 (1834) (pledging that Congress would "consider . , , how far the uniformity which in other cases is found convenient in the administration of the General Government through all the Stales, may be introduced" into federal judiciary).
32. Act of May 8, 1792, ch. 36, §2, 1 Stat. 275, 276.
33. Stephen B. Burbank, The Bitter with the Sweet: Tradition, History, and Limitations on Federal Judicial Power-A Case Study, 75 Notre Dame L. Rev. 1291, 1325 (2000). The Supreme Court likewise shared this interpretation of the Acts.
34. See Wayman v. Southard, 23 U.S. 1, 49-50 (1825) (arguing that state laws passed subsequent to Conformity Acts could not bind federal courts).
35. §2, 1 Stat, at 276.
36. Van Braam, 3 U.S. at 352;
37. see also Sward, supra note 14, at 382 (describing state of federal procedure as "confusing mishmash").
38. See Daniel S. Tomson, Note, Rule 58's Dirty Little Secret: The Problematic Lack of Uniform Enforcement of Federal Rule of Civil Procedure 58 Within the Federal Court System, 36 VaI. U. L. Rev. 767, 772 (2002) ("[A] majority of the states began to abandon the Act in favor of their own codes.").
39. Field Code, ch. 379, 1848 N.Y. Laws 497. While the Code was not an explicit attempt to create uniformity, it is noteworthy because of its prevalence among states and weighty influence on civil procedure.
40. See Sward, supra note 14, at 382-83 (noting Code "was enormously influential" and served as bridge between common law procedure and Federal Rules).
41. The 1872 Act directed federal courts to "conform, as near as may be, to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such circuit or district courts are held." Act of June 1, 1872, ch. 255, §5, 17 Stat. 196, 197 (emphasis added).
42. See Charles E. Clark & James Wm. Moore, A New Federal Civil Procedure, 44 Yale L.J. 387, 401-07 (1935) (detailing purpose of 1872 Conformity Act and its inevitable failure in face of state procedural reform);
43. Edson R. Sunderland, The Grant of Rule-Making Power to the Supreme Court of the United States, 32 Mich. L. Rev. 1116, 1122 (1934) (acknowledging that Conformity Act "contained the seeds of its own destruction as a remedial device").
44. See Nudd v. Burrows, 91 U.S. 426, 441 (1875) ("The purpose of the provision ... was to bring about uniformity in the law of procedure .... The evil [of studying two systems] was a serious one. It was the aim of the provision in question to remove it... . The remedy was complete.").
45. In a Senate Judiciary Committee report arguing for the simplification of procedure, then-Senator Sutherland described the existing procedural system as "unscientific and obstructive." S. Rep. No. 64-892, pt. 1, at 2 (1917).
46. Report of the Committee on Judicial Administration and Remedial Procedure [hereinafter ABA Report], reprinted in Report of the Thirty-Fifth Annual Meeting of the American Bar Association 434, 434-35 (1912).
47. Pub. L. No. 73-415, 48 Stat. 1064 (1934) (current version at 28 U.S.C. §2072 (2000));
48. see Tomson, supra note 24, at 773 n.23 (recounting ABA's role).
49. See Thomas O. Main, Procedural Uniformity and the Exaggerated Role of Rules: A Survey of Intra-State Uniformity in Three States That Have Not Adopted the Federal Rules of Civil Procedure, 46 Vill. L. Rev. 311, 311-18 (2001) ("Indeed, both of the major reform movements in American procedural history were bred primarily of efforts to establish procedural uniformity.").
50. Sunderland, supra note 27, at 1117.
51. See Subrin, New Era, supra note 10, at 1650 ("[T]he price of this interfederal court uniformity was the loss of intrastate uniformity, for there would be different state and federal procedures."). That is, if states rejected the proposed system of federal rules, state and federal procedure would have no explicit tie.
52. Jay S. Goodman, On the Fiftieth Anniversary of the Federal Rules of Civil Procedure: What Did the Drafters Intend?, 21 Suffolk U. L. Rev. 351, 355 (1987) [hereinafter Goodman, Drafters' Intent],
53. Senator Walsh's skepticism was not ungrounded. Even after the REA was passed, it was not clear whether the Supreme Court would abolish the federal division between law and equity. Unlike the Field Code's explicit rejection of this distinction, see supra text accompanying note 25, the REA left this decision to the Supreme Court, see §2, 48 Stat, at 1064 ("The court may at any time unite the general rules prescribed by it for cases in equity with those in actions at law as to secure one form of civil action and procedure for both." (emphasis added)), Because a majority of states were using the Field Code's simplified "civil action," they were unlikely to return to a law-and-equity paradigm.
54. See Sunderland, supra note 27, at 1125 (noting unlikelihood that states would "perpetuate the outworn distinctions between legal and equitable methods of conducting litigation"). Furthermore, other considerations counseled against state adoption of a system of federal rules.
55. See id. at 1126 (pointing to preservation of judicial integrity and independence).
56. See ABA Report, supra note 30, at 434 (proposing system of civil procedure for use in federal courts and "as a model");
57. Clark & Moore, supra note 27, at 387 (recognizing "unusual opportunity" for "developing a procedure which may properly be a model to all the states");
58. Subrin, New Era, supra note 10, at 1650 ("Proponents retorted that the uniform federal rules would be a model adopted by the states.").
59. See S. Rep. No. 64-892, pt. 1, at 21 (1917) (stating that both convenience and merit would lead to state adoption);
60. Thomas Wall Shelton, A New Era injudicial Relations, 23 Case & Comment 388, 393 (1916) (predicting that states which did not follow would "suffer" if not "perish") ;
61. Stephen N. Subrin, Federal Rules, Local Rules, and State Rules: Uniformity, Divergence, and Emerging Procedural Patterns, 137 U. Pa. L. Rev. 1999, 2006, 2026 (1999) [hereinafter Subrin, Procedural Patterns] ("The federal rules were to be an enlightened magnet").
62. For a brief overview of the passage of the REA and the Federal Rules, see Goodman, Drafters' Intent, supra note 35, at 355-64.
63. See supra note 35.
64. See Act of May 8, 1792, ch. 36, §2, 1 Stat. 275, 276 (instructing federal courts to mirror existing state practice and procedure);
65. see also supra text accompanying notes 20-21.
66. See generally Lyle Roger Allen, The New Rules in Arizona, 16 F.R.D. 183, 183-87 (1955) (recounting Arizona's adoption of the Federal Rules).
67. See Charles E, Clark, Handbook of the Law of Code Pleading §10, at 50-54 (2d ed. 1947) (cataloguing contemporaneous state procedural reforms).
68. Id. §9, at 31.
69. Professor Clark would confirm his prognosis in 1958 when he wrote that "the trend of state adoption [was] proceeding apace." Charles E. Clark, The Federal Rules of Civil Procedure, 1938-1958: Two Decades of the Federal Civil Rules, 58 Colum. L. Rev. 435, 435 (1958).
70. William W. Barron Sc Alexander Holtzoff, Federal Practice and Procedure with Forms §§9-9.53 (Charles Alan Wright ed., 1960) (giving brief accounts of then-current state procedural reforms).
71. Despite being credited as an editor, Professor Wright thoroughly revised, rewrote, and expanded Barron and HoltzofFs earlier treatise such that the 1960 edition was "a thoroughly new work." John P. Frank, Federal Practice and Procedure, 76 Harv. L. Rev. 1704, 1704 (1963) (book review), This Note thus appropriately attributes this work to Professor Wright.
72. See id.
73. Barron & Holtzoff, supra note 44, §9, at 44-45.
74. Main, supra note 32, at 321 Sc n.45.
75. For an account of Arizona's adoption of the Federal Rules and explicit debate regarding the values of federal-state intrastate uniformity, see Subrin, Procedural Patterns, supra note 37, at 2026-28.
76. Oakley & Coon, supra note 6, at 1372 (citation omitted). Oakley and Coon distinguished their scholarship by classifying states based on (1) whether a state employed notice pleading and (2) whether the state codified its procedure. Eight categories were devised, on a sliding scale beginning with true federal replicas and ending with states that required fact pleading within a code-based procedural system.
77. See id. at 1372-76 (describing methodology).
78. The degree to which the states needed to be categorized, a process which the authors themselves described as "unexpectedly complicated," id. at 1369, is itself a testament to balkanization in state adoption.
79. See id. at 1377-79, 1424-27 (summarizing results). Furthermore, when the population of replica states was considered, states with the largest populations tended to shun the Federal Rules.
80. Id. at 1426. It should be noted, however, that the vast majority of states had abandoned fact pleading for notice pleading, which is arguably the hallmark of the Federal Rules.
81. Id. at 1425-26.
82. See id. at 1369, 1427 (noting "pervasive influence of the Federal Rules").
83. Id. at 1427 (citation omitted). In fact, this era was determined to have ended a decade earlier in 1975.
84. See id. at 1426 (stating that collected data indicated trend stalled ten years earlier).
85. Oakley, supra note 6.
86. While this Note focuses on federal-state intrastate uniformity, much of the existing scholarship focuses on the decline of federal interstate uniformity through district courts' use of local rules. See, e.g., Subrin, Procedural Patterns, supra note 37, at 2037-38 (describing Arizona's use of local rules in both federal and state courts);
87. Carl Tobias, Civil Justice Reform and the Balkanization of Federal Civil Procedure, 24 Ariz. St. L.J. 1393, 1398 (1992) [hereinafter Tobias, Balkanization] (finding 5,000 local rules across ninety-four federal districts).
88. Oakley, supra note 6, at 383.
89. Id. at 359;
90. see also Main, supra note 32, at 322-25 (recounting decline of intrastate uniformity).
91. See, e.g., Carl Tobias, A Civil Discovery Dilemma for the Arizona Supreme Court, 34 Ariz. St. L.J. 615, 627 (2002) [hereinafter Tobias, Discovery Dilemma],
92. See, e.g., Oakley, supra note 6, at 384.
93. See infra Part I.B.1.
94. E.g., Adams v. Robertson, 676 So. 2d 1265,1268 (Ala. 1995);
95. Brehm v. Eisner, 746 A.2d 244, 267 (Del. 2000) (Hartnett, J., concurring);
96. Faggins v. Fischer, 853 A.2d 132, 142 (D.C. 2004) (Schwelb, J., dissenting);
97. Matsuura v. E.I. du Pont de Nemours & Co., 73 P.3d 687, 703 (Haw. 2003);
98. Thomas v. Thomas, 357 P.2d 935, 937 (Idaho 1960);
99. Cent. Realty, Inc. v. Hillman's Equip., Inc., 246 N.E.2d 383, 387 (Ind. 1969);
100. Tuttle v. Dep't of State Highways, 243 N.W.2d 244, 245 (Mich. 1976);
101. Brown v. Credit Ctr., Inc., 444 So. 2d 358, 364 n.1 (Miss. 1983);
102. Dennis v. Berens, 54 N.W.2d 259, 261 (Neb. 1952);
103. United Nuclear Corp. v. Gen. Atomic Co., 629 P.2d 231, 278 (N.M. 1980);
104. Worthington v. Bynum, 290 S.E.2d 599, 606 (N.C. 1982) (Britt, J., dissenting);
105. Byron v. Gerring Indus., 328 N,W.2d 819, 821 n.3 (N.D. 1982);
106. Taylor v. Baker, 566 P.2d 884, 886 n.2 (Or. 1977);
107. State v. Walker, 743 P.2d 191, 193 (Utah 1987).
108. But see Harvey v. Eastman Kodak Co., 610 S.W.2d 582, 584 (Ark. 1981) (agreeing to a "significant departure" from the Federal Rules despite identical rule language).
109. Edwards v. Young, 486 P.2d 181, 182 (Ariz. 1971).
110. See McDonough Constr. Co. v. McLendon Elec. Co., 250 S.E.2d 424, 428 (Ga. 1978) (holding that despite identity of state and federal rule, federal interpretation would contravene intent of state law).
111. U S W. Commc'ns, Inc. v. Ariz. Dep't of Revenue, 14 P.3d 292, 295 (Ariz. 2000).
112. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ("[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 . . . which would entitle him to relief.").
113. This harmony may be explained by the steadfastness of Rule 8(a)'s requirement of a "short and plain statement." Unlike a host of other rules that have been habitually amended, the language of Rule 8 has remained unchanged. Even in the restyling of the Federal Rules that occurred on December 1, 2007, the Advisory Committee transposed the sixty-nine-year-old language of Rule 8(a) verbatim, thereby implicitly indicating that the Rule needed no clarification. Comm. on Rules of Practice & Procedure of the Judicial Conference of the United States, Excerpt of the Report of the Civil Rules Advisory Committee 30-32 (2006), at http:// - www.uscourts.gov/rules/supct1106/ Excerpt-CV-Style.pdf (on file with the Columbia Law Review);
114. see also Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 Suffolk U. L. Rev. 851, 855 (2008) (noting that December 1, 2007 sample form complaints appended to the Rules were verbatim copies of those supplied in 1963 Rules revision).
115. Moreover, while other Rules have seen marked shifts injudicial interpretation-for example, Rule 56(c) and the standard for granting summary judgment-the Conley interpretation of Rule 8(a) had stood for fifty years. Finally, perhaps the widespread adoption of Conley in state courts stems from a faithfulness to the concept of notice pleading, which is arguably the hallmark of the Federal Rules. Subrin, Procedural Patterns, supra note 37, at 2030;
116. see also Oakley & Coon, supra note 6, at 1375 ("[T]he Federal Rules are a model of 'notice pleading.'").
117. Bell Atl. Corp. v. Twombly, 127 S. Ct. .1955, 1978 (2007) (Stevens, J., dissenting).
118. See supra Part I.A.3.
119. Twombly, 127 S. Ct. at 1978 n.5 (Stevens, J., dissenting) (cataloguing Conley jurisdictions).
120. Florida, Louisiana, and Nebraska are listed in the footnote, id., but are generally considered code-pleading jurisdictions, see Oakley & Coon, supra note 6, at 1378. Interestingly, one scholar has highlighted the courts of three code-pleading states-whose procedural systems are recognized as being most unlike the Federal Rules-that nevertheless tracked the jurisprudence of the state's federal courts with respect to pleading standards and summary judgment.
121. See generally Main, supra note 32 (examining intrastate uniformity in practice in Illinois, Nebraska, and Pennsylvania).
122. For a more detailed explication of the Twombly decision, see Leading Cases, supra note 4, at 305-09.
123. The divestiture of the American Telephone Sc Telegraph Company in 1984 led to the creation of regional monopolies known as "Baby Bells," Twombly, 127 S. Ct. at 1961. In exchange for regional control, the Baby Bells were excluded from competing in the longdistance service market. Federal legislation in 1996, however, allowed each ILEC to offer long-distance service in exchange for offering to share its network with CLECs.
124. Id.
125. 15 U.S.C. §1 (2000),
126. Twombly, 127 S. Ct. at 1962 (citation omitted).
127. Id.
128. Id. at 1963.
129. Id. at 1969, 1974 (emphasis added).
130. Id. at 1967.
131. See id. ("[I]t is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery . . . .").
132. See id. at 1973 n.14 ("[W]e do not apply any 'heightened' pleading standard . . . .").
133. See, e.g., Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 8c n.3 (D.C. Cir. 2008) (noting that "[m]any courts have disagreed about the import of Twombly" and cataloguing decisions);
134. Iqbal v. Hasty, 490 F.3d 143, 155-59 (2d Cir. 2007) ("The nature and extent of that alteration is not clear because the Court's explanation contains several, not entirely consistent, signals....").
135. To date, the Court has not granted certiorari in any case that would provide further guidance, save for Erickson v. Pardus, 127 S. Ct. 2197 (2007) (per curiam), but that case arguably provides little clarification.
136. See infra notes 79-80. The Court also has yet to grant, vacate, and remand any such case.
137. See, e.g., Nat'l Collegiate Athletic Ass'n v. Cohane, 128 S. Ct. 641 (2007) (denying certiorari outright).
138. Aktieselskabet, 525 F.3d at 15.
139. ACA Fin. Guar, Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008);
140. see also A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. Rev. 431, 448-50 (2008) (describing three "zones" of pleading after Twombly).
141. See, e.g., J. Douglas Richards, Three Limitations of Twombly: Antitrust Conspiracy Inferences in a Context of Historical Monopoly, 82 St. John's L. Rev. 849, 851-53 (2008).
142. This constricted interpretation certainly has some grounding. The Court framed the question presented narrowly, and its discussion spoke specifically about the antitrust context. See supra text accompanying note 71. Furthermore, one must consider the Court's decision in Erickson, which cites Twombly for the proposition that the pleadings "need only 'give the defendant fair notice of what the . . . claim is and the grounds upon
143. which it rests.'" 127 S. Ct. at 2200
144. (quoting Twombly, 127 S. Ct. at 1964);
145. see also McMahon, supra note 61, at 860-61 (discussing Court's "schizophrenic[]" decision that approvingly cited Conley and its liberal pleading standard). Another possibility is that Twombly simply reiterates the existing rule that plaintiffs may plead themselves out of court but requires plaintiffs in antitrust cases to rely on more than a theory of parallelism.
146. See Michael Dorf, The End of Notice Pleading?, Dorf on Law, May 24, 2007, at http://michaeldorf.org/2007/05/end-of-notice-pleading.html (on file with the Columbia Law Review) (discussing possibility that Court rightly affirmed dismissal if Twombly complaint relied solely on allegation of parallelism).
147. See, e.g., Phillips v. County of Allegheny, 515 F.Sd 224, 230-35 (3d Cir. 2008) ("[W]e decline at this point to read Twombly so narrowly as to limit its holding on plausibility to the antitrust context.");
148. labal, 490 F.Sd at 157 n.7 ("[I]t would be cavalier to believe that the Court's rejection of the 'no set of facts' language from Conley, which has been cited by federal courts at least 10,000 times in a wide variety of contexts . . . applies only to section 1 antitrust claims.");
149. Anticancer Inc. v. Xenogen Corp., 248 F.R.D. 278, 281-82 (S.D. Cal. 2007) (cataloguing decisions that dismissed non-antitrust claims under plausibility standard);
150. Dodson, supra note 3, at 138 ("[T]he Court's opinion presages more expansive application."). Commentators, meanwhile, have distinguished Erickson because of the specific Eighth Amendment circumstances and the plaintiff's pro se status, a class to which courts have accorded a certain liberalism.
151. See Spencer, supra note 78, at 455-57.
152. McMahon, supra note 61, at 859 (citations omitted).
153. Twombly, 127 S. Ct. at 1975 (Stevens, J., dissenting).
154. But see Steve Lash, Reach of Antitrust Ruling Debated, Chi. Daily L. Bull., Nov. 15, 2007, at 3 (discussing view of practicing attorney that "'Twombly is not any kind of seismic shift at all'").
155. See Dodson, supra note 3, at 138 ("Clearly, Conley's 'no set of facts' language is dead, at least as to the meaning that was customarily ascribed to it,");
156. McMahon, supra note 61, at 858 ("The commentators did not believe for a minute that Twombly wrought no change in Conley, no matter what the Supreme Court said.").
157. Shortly before this Note's publication, Massachusetts became the first state to face the question directly. After quoting multiple passages from Twombly, the state's Supreme Judicial Court noted, without elaborating further, that it would follow the Supreme Court's persuasive interment of Conley's "no set of facts" language in favor of Twombly's clarification. See Iannacchino v. Ford Motor Co., 888 N.E.2d 879, 890 (Mass. 2008).
158. See, e.g., Andrée Sophia Blumstein, A Higher Standard, Tenn. B.J., Aug. 2007, at 12, 14-15 (predicting "Twombly's influence will likely come to be felt in state civil litigation") ;
159. The Fact of the Matter: Twombly and a Battle over Pleading, Ariz. Att'y, Sept. 2007, at 18, 18 (introducing debate).
160. Pollock, supra note 8, at 26 ("Without such uniformity, litigants would be encouraged to shop for the more procedurally friendly forum.");
161. see also Brown v. Credit Ctr., Inc., 444 So. 2d 358, 364 n.1 (Miss. 1983) ("A disparity in interpretation [of identical rules] would inevitably lead to forum shopping, which has been a perceived evil for at least half a century." (citation omitted)).
162. See Mark Samson, Arizona Should Avoid Twombly's Pernicious Effects, Ariz. Att'y, Sept. 2007, at 27, 28 (underscoring Arizona's commitment to notice pleading in relation to state discovery reforms).
163. See Erie R.R. Co, v. Tompkins, 304 U.S. 64, 74-77 (1938) (exploring discrimination that had developed in diversity claims),
164. This subpart focuses on forum shopping in the state adjudication of federal claims. An important question with forum-shopping implications, however, arises when a federal court sitting in diversity adjudicates a state claim. Under Hanna v. Plumer, if state procedure and a Federal Rule of Civil Procedure conflict, the federal rule prevails, provided that it satisfies the Constitution and federal statutes. See 380 U.S. 460, 463-65 (1965). Thus, would Twombly apply in a federal diversity action if Conley would normally govern in state court? And if so, would this application of Rule 8 potentially violate the Rules Enabling Act (REA)?
165. See 28 U.S.C. §2072(b) (2000) ("Such rules shall not abridge, enlarge or modify any substantive right"). These unsettled questions are themselves noteworthy and deserving of extensive treatment. Short of providing a full analysis, I briefly outline the arguments pertinent to forum shopping here.
166. At bottom, the debate is about the meaning of the word "substantive" in the REA. Compare John Hart Ely, The Irrepressible Myth of Erie, 87 Harv. L. Rev. 693, 718-38 (1974) (viewing "substantive" expansively through federalism lens),
167. with Stephen B. Burbank, The Rules Enabling Act of 1934, 130 U. Pa. L. Rev. 1015, 1025-26, 1122-25 (1982) (viewing "substantive" narrowly through separation-of-powers lens),
168. The Court initially narrowed the substantive rights proviso to a significant degree. See Sibbach v. Wilson 8c Co., 312 U.S. 1, 13-14 (1941). But recent decisions have questioned the presumptive validity of the Rules, clearly recognizing, but ultimately not holding, that certain interpretations of individual rules might violate the REA.
169. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 503-04 (2001) (unanimous decision) (refusing to interpret Rule 41(b) in way that might "abridge" right under REA);
170. Ortiz v. Fibreboard Corp., 527 U.S. 815, 842 (1999) (construing Rule 23(b)(1)(B) to "minimizef] potential conflict with the Rules Enabling Act, and [to] avoid[] constitutional concerns");
171. see also Note, The Rules Enabling Act and the Limits of Rule 23, 111 Harv. L. Rev. 2294, 2294 n.5 (1998) (listing dissents that argue Court's interpretation of some rules violates REA). Thus far the Court has managed to interpret the questioned rules in ways that avoid the REA's substantive rights proviso. A conflict between Conley and Twombly, however, arguably presents a binary choice with little interpretive wiggle room.
172. Applying Twombly to a federal diversity case in lieu of a state's Conley standard may raise a direct challenge to the REA. A judgment finding a violation of the statute would not lead to a forum-shopping situation because Conley would govern in either fora. A finding of no violation, however, would mean application of different pleading standards in state and federal courts, allowing a litigant to forum shop. This outcome would give some force to the pro-Twombly camp's forum-shopping concern. And yet, its central fear that disuniformity will result in a state court becoming a haven for speculative lawsuits, see Pollock, supra note 8, at 26, is inapt because federal court will remain the preferred forum for defendants who wish to invoke a raised pleading standard. A dual îederal-Twombly and state-Cowfey construct leaves a state no more open to an influx of cases than uniform application of plausibility pleading.
173. Others have used the descriptions "converse-Erie," e.g., Alfred R. Light, Lifting Printi Off Dual Sovereignty: Back to a Functional Test for the Etiquette of Federalism, 13 BYU J. Pub. L. 49, 67 (1998),
174. or "inverse-Erie," e.g., Gregory Gelfand & Howard B. Abrams, Putting Erie on the Right. Track, 49 U. Pitt. L. Rev. 937, 941 n.10 (1988).
175. Some commentators, however, dispute this framing of the question. See, e.g., Susan N. Herman, Beyond Parity: Section 1983 and the State Courts, 54 Brook. L. Rev. 1057, 1109-10 (1989) (finding fault in idea that state court's choice-of-law decision in adjudicating federal claims is "mirror image" of federal court's decision in diversity cases). It is useful to clarify and focus the scope of inquiry here. State claims can be filed in state court or, if they meet the requirements for diversity, be removed to or filed in federal court. In the former scenario, there is no alternative to the application of state procedural rules. The latter, meanwhile, presents the classic Erie scenario.
176. See supra note 89 (discussing Twombly under Erie analysis). In contrast, federal claims may be filed in federal court under federal question jurisdiction or in state courts under general jurisdiction.
177. Federal claims filed in state court are generally removable to federal court, save for certain exceptions. See 28 U.S.C. § 1441. There are three general categories of nonremovable claims. First, federal law explicitly designates as nonremovable claims brought under three federal statutes and state workmen's compensation laws.
178. See id. § 1445. Second, state courts are deemed to have exclusive jurisdiction over certain federal claims.
179. See, e.g., Int'l Sci. & Tech. Inst, Inc. v. Inacom Commc'ns, Inc., 106 F.Sd 1146, 1150 (4th Cir. 1997) (granting exclusive state court jurisdiction to claims brought under Telephone Consumer Protection Act of 1991).
180. Finally, defendants that assert a federal defense to a state law claim will be trapped in state court under the well-pleaded complaint rule. See Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152-53 (1908) (finding no jurisdiction over plaintiff's state law claim even though federal defense was asserted). The forum-shopping concern is limited to those federal law claims that may be brought initially in either federal or state court, but for which removal to federal fora is prohibited, a small subset of civil actions.
181. 45 U.S.C. §§51-60 (2000);
182. see also Richard H. Fallon, Jr., Daniel J. Meltzer & David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 458 (5th ed. 2003) [hereinafter Fallon, Meltzer & Shapiro, Federal Courts] (noting frequency of reverse-fine FELA cases).
183. 42 U.S.C. §1983 (2000).
184. Johnson v. Fankell, 520 U.S. 911 (1997);
185. Felder v. Casey, 487 U.S. 131 (1988);
186. Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359 (1952);
187. Brown v. W. Ry. of Ala., 338 U.S. 294 (1949).
188. Kevin M. Clermont, Federal Courts, Practice & Procedure: Reverse-fine, 82 Notre Dame L. Rev. 1, 23 (2006) (listing cases).
189. See generally Paul J. Katz, Comment, Standing in Good Stead: State Courts, Federal Standing Doctrine, and Reverse-fine Analysis, 99 Nw. U. L. Rev. 1315, 1333-40 (2005) (reviewing FELA and §1983 case law).
190. 338 U.S. 294.
191. Id.
192. Id. (emphasis added). Federal practice, in contrast, construes the facts in favor of the pleader.
193. See Summit Health, Ltd. v. Pinhas, 500 U.S. 322, 325 (1991) ("[W]e must assume the truth of the material facts as alleged in the complaint").
194. Brown, 338 U.S. at 294-95.
195. Id. at 295 (emphasis added).
196. Id. at 296.
197. Id.
198. See id. at 298 ("Certainly these allegations are sufficient to permit introduction of evidence from which a jury might infer that petitioner's injuries were due to the railroad's negligence . . . .").
199. If Brown did consciously forum shop, strangely he did so to his disadvantage. See Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 509 n.63 (1954) ("The irony of the cases cited [including Brown] ... is that the plaintiffs, to whose benefit the rulings redounded, had deliberately chosen state court, and the statute under which they sued was one of the few in which Congress had expressly prohibited removal.").
200. U.S. Const, art. VI, cl. 2.
201. Brown, 338 U.S. at 298-99.
202. Id.
203. Id.
204. 520 U.S. 911 (1997).
205. Id. at 913.
206. See id. at 914 ("[Petitioners] pointed out that some state courts, unlike the Idaho Supreme Court, allow interlocutory appeals of orders denying qualified immunity on the theory that such review is necessary to protect a substantial federal right").
207. Id. at 913-14. To be clear, the decision characterized the motion to dismiss as one for summary judgment.
208. See id. at 914 n.1.
209. See supra note 104,
210. Johnson, 520 U.S. at 919-20, 922-23. Professor Herman advocates for balancing interests in the §1983 context.
211. See Herman, supra note 91, at 1113 ("In sum, there is simply no substitute for a careful balancing of the state and federal interests involved on a case-by-case basis.");
212. see also infra note 117 (discussing alternative approaches).
213. But see Martin H. Redish & Steven G. Sklaver, Federal Power to Commandeer State Courts: Implications for the Theory of Judicial Federalism, 32 Ind. L. Rev. 71, 104-05 (1998) (finding judicial ad hoc balancing unpredictable and ill-suited for reverse-fine questions).
214. In fact, it was not until the mid-1950s that the first major scholarly work linked this circumstance specifically to the emerging Erie doctrine. Alfred Hill, Substance and Procedure in State FELA Actions-The Converse of the Erie Problem?, 17 Ohio St. L.J. 384, 384-85 (1956) ("Two recent cases in the Supreme Court have induced speculation as to whether a development corresponding to Erie is taking place on the state court level in FEIA actions and perhaps in all actions involving the assertion of federally-created rights.").
215. Clermont, supra note 95, at 2.
216. While this Note draws heavily from Professor Clermont's work, it also recognizes the longstanding disagreement about reverse-fin« in the legal academy. See generally Scott T. Schutte, Note, How Far Is Too Far: Analyzing the Collateral Law Applicable in State Court Section 1983 Litigation, 72 Chi.-Kent L. Rev. 875, 888-910 (1997) (offering approaches to reverse-fine problem in §1983 context). Professor Hart argues that "federal law takes the state courts as it finds them," provided that the state rule does not "nullify the asserted rights."
217. Hart, supra note 104, at 508. This outlook may also help to explain the lack of interest in creating a reverse-fine methodology.
218. See supra notes 115-116 and accompanying text, One of the current authors of Professor Hart's own federal courts textbook, however, has criticized this view because it "reflectis] either a complete denial of federal constitutional power to reach state procedures, or a presumption of working federalism that should rarely if ever be disturbed."
219. Daniel J. Meltzer, State Court Forfeitures of Federal Rights, 99 Harv. L. Rev. 1128, 1176 (1986).
220. Furthermore, the fifth edition of Hart and Wechsler's textbook strongly suggests that any analogy to Erie is "more misleading than helpful, since the respective obligations of state and federal courts are not, in view of the Supremacy Clause, symmetrical."
221. Fallon, Meltzer & Shapiro, Federal Courts, supra note 92, at 461;
222. see also Herman, supra note 91, at 1109-13 (seeing analogy between Erie/diversity and reverse-firie/section 1983 cases as inapt). Resolving whether this area of jurisprudence should be viewed solely in terms of preemption alone or preemption mixed widi choice-of-law principles under the reverse-fine banner is well beyond the scope of this Note. Professor Clermont's work, which takes the latter tack, however, informs the Twombly discussion by drawing explicit connections between the familiar Erie scenario and the reverse-fin« problem,
223. see supra notes 88-91 and accompanying text, and highlighting the key differences between them. Analyzing Twombly and the choice facing Conley states through this lens most directly addresses the fear of forum shopping that some commentators believe will occur if states reject Twombly.
224. See supra note 86 and accompanying text.
225. See infra text accompanying note 128.
226. But see Richard H. Fallon, Jr., Daniel J. Meltzer Sc David L. Shapiro, Hart & Wechsler's The Federal Courts and the Federal System 74 (Supp. 2007) (arguing that question is really one of preemption).
227. The Seventh Amendment is one such example. See Clermont, supra note 95, at 10.
228. See id.
229. See id.
230. Id. at 11.
231. See id. at 13-17.
232. Under Professor Clermont's view of the Erie doctrine's evolution, the Court appeared to favor a balancing of state and federal interests to create general federal rules until the decision in Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415 (1996) thrust the doctrine toward "specific interest balancing."
233. Id. at 17.
234. U.S. Const, art. VI, cl. 2. Because federal substantive law is die predicate for reverse-fine analysis, the Supremacy Clause plays a pivotal role in the analysis.
235. See Katz, supra note 95, at 1327 ("[A] reverse-fine analysis must always focus on the import of the Supremacy Clause.").
236. The preexisting Federal Rules govern the vast majority of substantive federal laws. Express preemption-which occurs, for example, under the Private Securities Litigation Reform Act of 1995 (PSLRA), see 15 U.S.C. §78u-4(b)(1)-(2) (2006) (requiring plaintiffs to state with particularity facts regarding violation and scienter)-is likely to be an anomaly.
237. See generally Christopher M. Fairman, Heightened Pleading, 81 Tex. L. Rev. 551, 596-612 (2002) (explaining genesis of statutory heightened pleading under PSLRA).
238. See supra notes 96-108 and accompanying text.
239. That is not to say the determination of whether implied preemption has in fact occurred is an easy question. See generally Erwin Chemerinsky, Constitutional Law: Principles and Policies § 5.2 (3d ed. 2006) (exploring problems of identifying preemption).
240. For example, scholars are divided on the type of preemption used in Dice v. Akron, Canton & Youngstown R.R. Co., 342 U.S. 359 (1952).
241. Compare Clermont, supra note 95, at 40 (asserting that Dice used conflict preemption),
242. with Redish & Sklaver, supra note 114, at 102-05 (asserting that Dice used choice-of-law balancing).
243. Clermont, supra note 95, at 20.
244. Id.
245. See supra notes 109-114 and accompanying text.
246. Clermont, supra note 95, at 30-32.
247. See supra note 89.
248. Clermont, supra note 95, at 21.
249. Id. at 36. Professor Clermont explains that because parties typically can access federal court equally, the larger danger is horizontal interstate forum shopping.
250. Id. Thus, intrastate forum shopping, the chief concern of current pro-Twombly state reformers, is the less likely possibility.
251. But see supra note 104 (describing peculiar choice of plaintiff in Brown).
252. See supra note 91.
253. Brown v. W. Ry. of Ala., 338 U.S. 294, 298-99 (1949);
254. see supra notes 96-108 and accompanying text (tracing Court's rejection of local raised pleading standard in Brown).
255. One may argue that the scenario in Brown (aiding plaintiffs by applying lower federal pleading standard) does not inform the present situation regarding Twombly (aiding defendants by applying raised pleading standard). This distinction, however, ultimately proves untenable. See infra notes 148-151 and accompanying text.
256. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (declining to find exception to "Rule 8(a)'s simplified pleading standard");
257. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1992) ("Rule [8(a)] meant what it said . . . .").
258. Although § 1983 cases have provided scholars with a large set of cases for analyzing the reverse-fine doctrine, Leatherman does not directly inform the forum-shopping concern here because these claims are removable to federal court. See 28 U.S.C. § 1443 (2000) (providing for removal of civil rights cases);
259. supra note 91 (focusing on class of cases that potentially allow forum shopping).
260. See supra text accompanying note 131.
261. Sorema, 534 U.S. at 513 (noting that Rule 8(a) applied to "all civil actions, with limited exceptions" such as Rule 9(b)).
262. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1973 n.14 (2007).
263. For example, it is unlikely that all parties will file all FELA claims in perpetuity in a given jurisdiction in state court (rendering them nonremovable), thus preventing federal courts from opining on the applicable pleading standard.
264. See Lockhart v. Fretwell, 506 U.S. 364, 376 (1993) (Thomas, J., concurring) (explaining that while Arkansas trial court is bound by U.S. Supreme Court and Arkansas appellate courts, its decision to follow Eighth Circuit was voluntary);
265. Charles Alan Wright & Mary Kay Kane, Law of Federal Courts § 45, at 294 n.25 (6th ed. 2002) (providing citations to sources that discuss "interesting question of the weight state courts should give to decision of lower federal courts when the state court is applying federal law").
266. See supra text accompanying note 131.
267. See supra notes 106-107 and accompanying text; cf. Michigan v. Long, 463 U.S. 1032, 1042 n.8 (1983) ("[Because state courts] necessarily create a considerable body of 'federal law' . . . this Court has become more interested in the application and development of federal law by state courts . . . .").
268. See supra text accompanying notes 96-108.
269. Cf. Fallon, Meltzer & Shapiro, Federal Courts, supra note 92, at 464 (discussing FELA cases where state procedural rules were disallowed because of their generosity),
270. 239 U.S. 199 (1915).
271. Id. at 201 (emphasis added) (citations omitted).
272. The Supreme Court of North Carolina waived the statute of limitations because under state law the defendant failed to affirmatively raise this defense in its answer. See Burnett v. Atl. Coast Line R.R. Co., 79 S.E. 414, 415-17 (N.C. 1913), rev'd, 239 U.S. 199 (1915). A state could, though, provide increased protection for matters of state law if there is an independent state ground.
273. See Long, 463 U.S. at 1037-45 (holding that U.S. Supreme Court will not review state court decision if based on state and not federal precedents).
274. See Burnette, 239 U.S. at 201 (recognizing that Congress may limit these obligations for "special reasons").
275. See supra text accompanying notes 149-151.
276. See Frank H. Easterbrook, Substance and Due Process, 1982 Sup. Ct. Rev. 85, 112-13 ("Substance and process are intimately related. The procedures one uses determine how much substance is achieved, and by whom. Procedural rules usually are just a measure of how much the substantive entitlements are worth, of what we are willing to sacrifice to see a given goal attained.").
277. Watson Clay, May the Federal Civil Rules Be Successfully Adopted to Improve State Procedure?, 24 F.R.D. 437, 439 (1960) (describing Rules as "interlocking scheme of procedure" with "any change in one rule . . . adversely affect[ing] the application or interpretation of other rules");
278. Thomas E. Skinner, Alabama's Approach to a Modern System of Pleading and Practice, 20 F.R.D. 119, 121 (1958) ("No change would be recommended by the Commission without knowing the effect such changes would have upon the present practice . . . .");
279. cf. Jeremy Waldron, Torture and Positive Law: Jurisprudence for the White House, 105 Colum. L. Rev. 1681, 1721-23 (2005) (noting "the way in which the separate provisions of a single statute work together, united by their contribution to a common statutory purpose").
280. Conley v. Gibson, 355 U.S. 41, 47-48 (1957);
281. see also Hickman v. Taylor, 329 U.S. 495, 501 (1947) ("The new rules . . . restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role . . . .").
282. The Conley Court names several examples of "other pretrial procedures": Rule 12(e) (motion for a more definite statement); Rule 12(f) (motion to strike portions of the pleading); Rule 12(c) (motion for judgment on the pleadings); Rule 16 (pre-trial procedure and formulation of issues); Rules 26-37 (depositions and discovery); Rule 56 (motion for summary judgment); Rule 15 (right to amend). 355 U.S. at 48 n.9.
283. See Bell Atl. Corp. v. Twombly, 127 S. Ct 1955, 1966-67 (2007) ("[It is] quite another [thing] to forget that proceeding to antitrust discovery can be expensive.");
284. Iqbal v, Hasty, 490 F.3d 143, 156-57 (2d Cir. 2007) ("[T]he Court placed heavy emphasis on the 'sprawling, costly, and hugely time-consuming' discovery . . . ."
285. (quoting Twombly, 127 S. Ct. at 1967 n.6));
286. Leading Cases, supra note 4, at 309 ("[W]hat drove the majority's opinion was not a lack of faith in trial judges' abilities to manage discovery; rather, it was a lack of confidence in the Federal Rules' system of discovery itself.").
287. See Samson, supra note 87, at 28 (viewing Twombly as "[giving] in to a result-oriented approach").
288. See Tobias, Discovery Dilemma, supra note 54, at 623-27 (noting leadership of Arizona Chief Justice Zlaket in reforming state discovery rules).
289. Samson, supra note 87, at 28.
290. Twombly, 127 S. Ct. at 1967.
291. Many commentators have analogized electronic means of storage to more familiar terms. For example, a single gigabyte can hold 500,000 typewritten pages, with typical hard drives containing 100 gigabytes of memory. See Salvatore Joseph Bauccio, E-Discovery: Why and How E-mail Is Changing the Way Trials Are Won and Lost, 45 Duq. L. Rev. 269, 271-72 (2007). Assuming a reviewer's average rate of fifty emails per hour, it would take a hundred people over half a century to review one billion emails without electronic assistance and over half a year with electronic assistance. This work would translate to a cost of $20 million just for a first-level review.
292. See George L. Paul & Jason R. Baron, Information Inflation: Can the Legal System Adapt?, 13 Rich. J.L. & Tech. 10, ¶ 20 (2007), at http://law.richmond.edu/jolt/v13i3/article10.pdf (on file with the Columbia Law Review) (discussing discovery costs and time requirements of email review).
293. See infra note 179 (discussing similarities and differences between state and federal civil litigation dockets).
294. See Seymour Moskowitz, Rediscovering Discovery: State Procedural Rules and the Level Playing Field, 54 Rutgers L. Rev. 595, 604-05 (2002) (noting that while all states use basic discovery devices codified in Federal Rules, substantial variation exists and is increasing).
295. As mentioned above, notice pleading - embodied by congressional approval in Rule 8(a) and then jurisprudentially in Conley - was a hallmark of the Federal Rules. See supra note 48. Although the costs of litigation have challenged procedural reformers since the promulgation of the Rules, solutions had always come in the form of changes to the scope and requirements of discovery, and not to notice pleading until Twombly.
296. See Christine L. Childers, Note, Keep On Pleading: The Co-existence of Notice Pleading and the New Scope of Discovery Standard of Federal Rule of Civil Procedure 26(b) (1), 36 Val. U. L. Rev. 677, 687-93 (2002) (providing history of discovery from common law to 2000 reforms).
297. See supra notes 139-141 and accompanying text.
298. See supra note 75.
299. See supra notes 79-81 and accompanying text (discussing scope of Twombly).
300. Although discovery rules make up a significant portion of the Federal Rules, this Note focuses on a smaller number of significant provisions: Rule 16 (governing pre-trial conferences and discovery schedules), Rule 26 (providing general provisions governing discovery and disclosure), Rule 30 (limiting depositions to ten), and Rule 33 (limiting interrogatories to twenty-five).
301. See Hickman v. Taylor, 329 U.S. 495, 500-01 (1947) (expounding on new discovery rules as "significant innovations" that changed civil litigation such that "trials . . . no longer need[ed] to be carried on in the dark").
302. See generally Stephen N. Subrin, Fishing Expeditions Allowed: The Historical Background of the 1938 Federal Discovery Rules, 39 B.C. L. Rev. 691 (1998) (tracing roots and drafting of liberal federal discovery rules).
303. These trends are indeed general and this Note does not suggest a hermetic seal between the two categories of broad and constricted discovery. For example, Colorado has retained many of the traditional rules, but in certain types of cases its courts use a "simplified procedure." See infra notes 174-175 and accompanying text.
304. This subset of states truly exemplifies Professor Oakley's statement that "[i]t is the Federal Rules that have appeared to have moved away from the states, rather than vice versa." Oakley, supra note 6, at 359.
305. In fact, his 2002 study found that a shockingly low number of replica states adopted the Federal Rules amendments beginning with the 1993 discovery reforms. See id. at 383-84. They ranged from South Dakota, which adopted none of the tracked amendments, to Utah, which, although being nearest to federal replica status, was unquestionably "the last one standing," Id. Most states currently fall in the middle of the spectrum.
306. See id. app.
307. While some seem to be stuck in the past, as evidenced by Alabama's patterning of its discovery provisions (except for Rule 16) on the 1970 Federal Rules, id. at 362, others have been more faithful to the Federal Rules amendments but still retain broader discovery than even the Federal Rules currently allow. Perhaps the most common practice is for states to adopt Rules 30 and 33 and raise, if not eliminate, the cap on the number of depositions and/or interrogatories. Among the federal replicas identified in 1986, Alabama, Arizona, Colorado, the District of Columbia (interrogatories only), Hawaii, Idaho, Indiana, Kentucky, Montana, North Dakota, Ohio, Rhode Island, South Dakota, Tennessee, Vermont, Washington, West Virginia, and Wyoming (interrogatories only) have chosen this route.
308. See id. at 361-75.
309. Only Maine, which allows only five depositions, is more stringent than the Federal Rules. See Me. R. Civ. P. 30(a). On the whole, these examples demonstrate that numerous states have retained even broader discovery than the Federal Rules, which have retained their characteristic liberalism.
310. See Childers, supra note 165, at 696 ("Under the new [2000] Rule 26(b)(1), the scope of discovery remains as broad as it was prior to the amendment").
311. Examples include Alaska's expedited and limited pretrial system for claims under $100,000, see Alaska R. Civ. P. 26(g), Arizona's use of alternative procedures in medical malpractice cases,
312. see Ariz. R. Civ. P. 26.2, and Colorado's "Simplified Procedure,"
313. see Colo. R. Civ. P. 16.1. That is not to say these states have returned to what Justice Murphy in Hickman might have described as the dark ages.
314. See supra note 170. Through a system of comprehensive initial disclosure, litigants in theory will receive the same amount of pertinent information while also gaining brevity and lessening discovery costs.
315. Colo. R. Civ. P. 16.1(b)(1).
316. Id. 16.1(a)(2).
317. For a general overview of other states' constrictive reforms and select state case studies, see Moskowitz, supra note 164, at 613-37. One exception to moderation is Michigan, a state listed injustice Stevens's long Twombly footnote as a Conley state but not identified by Professors Oakley and Coon as a federal replica. Under the Michigan rule generally governing discovery, the de facto position is to deny any discovery in district courts; it reads, "In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties. A motion for discovery may not be filed unless the discovery sought has previously been requested and refused." Mich. Ct. R. 2.302(A)(2). Notably, this system does not seem to provide for alternative means of information gathering such as comprehensive initial disclosure.
318. See supra note 173.
319. See generally Kenneth J. Withers, Electronically Stored Information: The December 2006 Amendments to the Federal Rules of Civil Procedure, 4 Nw. J. Tech. & Intell. Prop. 171 (2006) (providing overview of ways amendments may reduce discovery costs).
320. See Order Amending Rules 16(b), 16(c), 16.3, 26(b), 26.1, 26.2, 33(c), 34, 37(g), and 45, Ariz. Rules of Civil Procedure, No. R-06-0034 (Ariz. Sept. 5, 2007), available at http://www.supreme.state.az.us/rules/ramd-pdf/r-06-0034.pdf (on file with the Columbia Law Review);
321. Order Amending Rules of Trial Procedure, No. 94S00 (Ind. Sept. 10, 2007), available at http://www.in.gov/judiciary/orders/rule-amendments/2007/trial- 091007.pdf (on file with the Columbia Law Review);
322. In re Proposed Revisions to the Mont. Rules of Civil Procedure with Respect to Discovery of Elec. Info., No. AF 07-0157 (Mont. Feb. 28, 2007), available at http://www.montanacourts.org/orders/AF07-0157.pdf (on file with the Columbia Law Review);
323. Proposed Amendments to the Ohio Rules of Appellate Procedure, Ohio Rules of Criminal Procedure and Ohio Rules of Civil Procedure, available at http://www.sconet.state.oh.us/Rules/amendments/practiceProcedureOct07.pdf (last visited Aug. 7, 2008) (on file with the Columbia Law Review);
324. In re Proposed Amendments to Rules 16, 23A, 26, 33, 34, 35, 37, 45, 101, 106 and Form 40 of the Utah Rules of Civil Procedure, No. 20070591-SC (Utah July 29, 2007), available at http://www.utcourts.gov/resources/rules/approved/ 20071101/ (on file with the Columbia Law Review).
325. For instance, litigation under New York's Donnelly Act, N.Y. Gen. Bus. Law §§ 340-347 (McKinney 2004), an analogue to the Sherman Act at issue in Twombly, may face the same discovery pressures Justice Souter identified. But that is not to say there are no differences. As one Vermont attorney noted, "[S]ome of the benefits of the Federal Rules are not required because the dockets in [my] state are not crowded." Note,
326. The Bar Favors Uniform State and Federal Rules of Civil Procedure, 18 Temp. L.Q. 145, 155 (1943) [hereinafter Bar Favors Uniform Procedure];
327. see also Stephen N. Subrin, Uniformity in Procedural Rules and the Attributes of a Sound Procedural System: The Case for Presumptive Limits, 49 Ala. L. Rev. 79, 83 (1997) (noting difference in caseload and personnel);
328. cf. Thomas D. Rowe, Jr., A Comment on the Federalism of the Federal Rules, 1979 Duke L.J. 843, 843-45 (urging states to consider federal-specific nuances in the Rules when adopting).
329. Fed. R. Civ. P. 1.
330. Halloran, supra note 7, at 24.
331. Cf. Leading Cases, supra note 4, at 309 ("The Court relied on an ad hoc cost-benefit analysis that failed to account for all of the effects that the new plausibility requirement might have on civil litigation.").
332. To be clear, this Note does not argue that states should reject Twombly because the decision is unwise or plainly wrong. In other words, it does not advocate for the points Justice Stevens raises in dissent regarding the majority's interpretation of Conley, the process of amending the Rules, or the seeming inconsistency with precedent. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1977-84 (2007) (Stevens, J., dissenting);
333. see also Leading Cases, supra note 4, at 309-15 (explicating Stevens's dissent). Instead, this Note seeks to elicit the factors that states should consider when making the inevitable choice between inviting in or sending away Twombly.
334. Similar caution was urged during the widespread state adoption of the Federal Rules. See Rowe, supra note 179, at 843-45 ("It seems best . . . for the state rulesmakers to make these decisions [regarding the Federal Rules] with full awareness of their implications rather than by default and in ignorance of the sometimes exclusively federalist considerations that influenced their federal counterparts.").
335. Paul V. Niemeyer, Here We Go Again: Are the Federal Discovery Rules Really in Need of Amendment?, 39 B.C. L. Rev. 517, 520 (1998).
336. Id.
337. Judge Louis Goodman of the Northern District of California felt that these mechanisms inspired the "new spirit in Federal Civil Procedure." Louis E. Goodman, The New Spirit in Federal Court Procedure, 7 F.R.D. 449, 449-50 (1948).
338. See Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944) (upholding nearly incomprehensible pro se complaint to avoid depriving non-English-speaking litigant his day in court);
339. Helen Hershkoff, Poverty Law and Civil Procedure: Rethinking the First-Year Course, 34 Fordham Urb. L.J. 1325, 1348-49 (2007) (noting equalizing effect of Federal Rules and notice pleading for under-resourced litigants);
340. William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 Cardozo L. Rev. 1865, 1879-82 (2002) (describing ability of notice pleading and broad discovery to have equality-enhancing effects);
341. cf. Tobias, Balkanization, supra note 51, at 1423-25 (explaining negative effect of disuniformity on resource-poor). That is not to say these values are no longer present in the federal procedural system under Twombly. This Note merely suggests that a plausibility standard qualifies Conley's strong commitment to giving litigants their "day in court" if there is any set of facts upon which their claims may warrant relief.
342. Cf. Easterbrook, supra note 153, at 112-13 ("Procedural rules are usually just a measure of how much the substantive elements are worth, of what we are willing to sacrifice to see a given goal attained.").
343. See, e.g., Allen, supra note 41, at 184, 188 (listing goal of Arizona reform committee as "liberalization" because at the time "artifice prevailed over truth");
344. Daniel L. Herrmann, The New Rules of Procedure in Delaware, 18 F.R.D. 327, 327, 341 (1956) (proclaiming proudly that "the Courts of Delaware shook off the 'shackles of mediaeval scholasticism' " in adopting the Rules) ;
345. Thomas Keely, How Colorado Conformed State to Federal Civil Procedure, 16 F.R.D. 291, 308 (1955) (noting that new Colorado procedure, modeled on Rules, contained elements that served as "guideposts and turning-points which divide and distinguish the modern procedural way from the abandoned State Code way").
346. See Tobias, Discovery Dilemma, supra note 54, at 623-27 (reviewing Arizona discovery reforms).
347. See Withers, supra note 177, at 191-209 (discussing amendments).
348. See supra text accompanying notes 174-175.
349. Documentation of the program's success is only anecdotal, see Glenn S. Koppel, Toward a New Federalism in State Civil Justice: Developing a Uniform Code of State Civil Procedure Through a Collaborative Rule-Making Process, 58 Vand. L. Rev. 1167, 1209-10 (2005) (noting dearth of empirical study),
350. but it has been well received, see Richard P. Holme, Back to the Future - New Rule 16.1: Simplified Procedure for Civil Cases Up to $100,000, Colo. Law., May 2004, at 11, 12, 14, available at http://www.courts.state.co.us/ userfiles/File/Supreme-Court-Committees/analysis16.1-holme-1.pdf (on file with the Columbia Law Review) (observing that several non-pilot-county judges requested and were granted permission to use simplified procedure);
351. Mary J. Mullarkey, Chief Justice, Colo. Supreme Court, Address on the State of the Judiciary 3 (Jan. 14, 2005) (transcript on file with the Columbia Law Review) (noting popularity and success).
352. Or, in the words of Justice Souter, it requires litigants to "nudge[] their claims across the line from conceivable to plausible." Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1974 (2007).
353. See, e.g., Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123, 171-72 (1950) (Frankfurter, J., concurring) ("No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and opportunity to meet it . . . . [It] generat[es] the feeling, so important to a popular government, that justice has been done.");
354. Charles E. Clark, The Handmaid of Justice, 23 Wash. U. L.Q. 297, 299 (1938) [hereinafter Clark, Handmaid of Justice] ("Regular procedure is necessary to secure equal treatment for all; it is necessary, too, for the quite as important factor of the appearance of equal treatment for all.");
355. Tom R. Tyler & E. Allan Lind, A Relational Model of Authority in Groups, 25 Advances Experimental Soc. Psychol. 115, 133-40 (1992),
356. reprinted in Stephen N. Subrin et al., Civil Procedure 37, 37-38 (3d ed. 2008) ("[W] hat is critical to good decision making is the appearance of fairness, and fairness is most obviously achieved when procedures that are accepted as just are used to generate the decision.").
357. See supra note 188 and accompanying text (noting states' rejection of code pleading and its negative consequences in preference of notice pleading and its benefits).
358. Professor Spencer argues that Twombly coupled with the "narrowing scope of discovery" places the entire system in danger: "[It] has dealt what may be a death blow to the liberal, open-access model of the federal courts espoused by the early twentieth century law reformers. A judicial administration model, or what one may term a 'restrictive' or 'efficiency-oriented' ethos, now seems firmly established in its place." Spencer, supra note 78, at 433.
359. See supra text accompanying note 178 (identifying five federal replicas that adopted e-discovery amendments).
360. See Stephen N. Subrin, Reflections on the Twin Dreams of Simplified Procedure and Useful Empiricism, 35 W. St. U. L. Rev. 173, 178-82 (2007) (discussing benefits of simplified procedure).
361. See Tobias, Discovery Dilemma, supra note 54, at 616-17 ("[T]he Arizona bench and bar may believe that their discovery system is superior to the existing federal scheme . . . .").
362. Id. at 627.
363. See supra Part I.A.
364. Sec Patrick M. McFadden, Fundamental Principles of American Law, 85 Cal. L. Rev. 1749, 1754 (1997) ("Without clarity and predictability, the law becomes corrosively unfair to us all.").
365. See Anthony D'Amato, Legal Uncertainty, 71 Cal. L. Rev. 1, 5-6 (1983) (recognizing that "uncertain law may deter activity that the state wants to encourage" and "leave persons unsure of their entitlements");
366. Maurice E. Stucke, Better Competition Advocacy, 82 St. John's L. Rev. 951, 1000 (2008) ("One cornerstone of the rule of law is that enforcement authorities apply the clear legal prohibitions to particular facts with sufficient transparency, uniformity, and predictability, so that private actors can reasonably anticipate what actions would be prosecuted and fashion their behavior accordingly.").
367. See Richard A. Epstein, The Political Economy of Product Liability Reform, 78 Am. Econ. Rev. 311, 313 (1988) (positing that litigation is not filed when clear law makes probable fate of claim known).
368. See Bar Favors Uniform Procedure, supra note 179, at 147 (arguing that if uniform system of procedure governed both forums, an attorney practicing in both forums "need learn only one procedure and the job is done").
369. Robert E. Keeton, The Function of Local Rules and the Tension with Uniformity, 50 U. Pitt. L. Rev. 853, 860 (1989).
370. See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 77 (1938)
371. (noting the "injustice and confusion" that Swift v. Tyson, 41 U.S. 1 (1842), had occasioned).
372. See Keeton, supra note 206, at 860 ("[N]ationally uniform rules protect (though of course not fully) against the tyranny of any unduly willful renegades among us trial judges.");
373. Felix S. Cohen, Law and the Modern Mind, 17 A.B.A. J. 111, 112 (1931) (reviewing Jerome Frank, Law and the Modern Mind (1930)) ("[U]niformity of decision is the only practical guarantee against the tyrannical exercise of prejudice . . . .").
374. See supra notes 36-37 and accompanying text.
375. See infra text accompanying notes 250-251.
376. See William J. Brennan, Jr., The Continuing Education of the Judiciary in Improved Procedures, Address Before the Judicial Conference of the Tenth Circuit, (July 5, 1960), in Proceedings of the Seminar on Practice and Procedure Under the Federal Rules of Civil Procedure, 28 F.R.D. 37, 48 (1960) (expressing hope that Federal Rules would adopt New Jersey, California, and Michigan pretrial requirements);
377. Marlyn E. Lugar, Federal Civil Rules Replace West Virginia Common Law Procedure, 26 F.R.D. 90, 108 (1961) (appreciating imperfections in new system and State's dedication to constant improvement).
378. In the context of interstate federal district court uniformity, this argument cautions against the parochialism of local court rules because they have not passed muster under presumably more rigorous national-level scrutiny, See Keeton, supra note 206, at 860 (" [A] uniform rule is ordinarily developed with the benefit of contributions from more sources and by a process more thoroughly deliberative than is characteristic of the fashioning of local rules.").
379. This idea of refinement draws implicitly on two seminal descriptions of the American federal system: Madison's Federalist 51, see The Federalist No. 51 (James Madison),
380. and Justice Brandeis's famous description of the states as laboratories for democracy, see New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).
381. Clark, Handmaid of Justice, supra note 194, at 307.
382. See supra text accompanying notes 16-18.
383. See supra text accompanying note 18 (foreseeing "endless perplexity").
384. Brown v. Van Braam, 3 U.S. 344, 352 (1797).
385. Tobias, Discovery Dilemma, supra note 54, at 628.
386. See Tobias, Balkanization, supra note 51, at 1423-25 (noting that balkanization particularly disadvantages public-interest litigants).
387. There are numerous counterarguments to the acclaim of such strict conformity. In a submission to the Temple Law Quarterly, Professor McCaskill referenced the difficulty of preserving uniformity in the face of amendments, the cost of sacrificing local tailoring, and the lack of flexibility in a uniform regime. See Bar Favors Uniform Procedure, supra note 179, at 148-49, But because this Note argues against adopting Twombly solely for the sake of uniformity, the thrust of the discussion centers on whether the benefits of uniformity would materialize were states to employ plausibility pleading.
388. See supra note 61.
389. Of course, Justice Souter took a markedly different view in arguing that "Conley's 'no set of facts' language has been questioned, criticized, and explained away long enough," Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1969 (2007).
390. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002) (rejecting imposition of heightened pleading standard);
391. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1992) (same);
392. supra notes 139-142 and accompanying text.
393. Leatherman, 507 U.S. at 168.
394. See supra notes 3, 76-82 and accompanying text.
395. See Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) ("The issues raised by Twombly are not easily resolved, and likely will be a source of controversy for years to come.");
396. Mary Swanton, Plausible Pleadings: High Court Offers Defendants Relief from Frivolous Claims, Inside Couns., Aug. 2007, at 16, 18 (estimating uncertainty for ten years due to inconsistent application).
397. See supra note 61.
398. Granted, the states will need to do some legwork when they adjudicate federal claims that require raised pleading. See supra Part II.A. But in rejecting Twombly with regard to state claims, the constant need to explore the bounds of its holding would be greatly diminished.
399. See supra note 57-60 and accompanying text (cataloguing state reliance on federal decisions).
400. Iqbal v. Hasty, 490 F.Sd 143, 157-58 (2d Cir. 2007);
401. see also McMahon, supra note 61, at 861-62 (noting that five other circuits have cited approvingly this explication of Twombly).
402. Twombly's holding strongly suggests that the federal judiciary will need to split its attention. In retiring the "no set of facts" language, the Court cast some doubt as to the requirements of notice pleading in general. Although Erickson has led some to argue that notice pleading as it once existed still applies, others are awaiting further guidance because of distinguishing factors. See supra notes 79-80 (citing examples).
403. See, e.g., Clay, supra note 154, at 438 (noting at time of Kentucky's adoption of Rules that "state procedure closely geared to federal procedure is of vast benefit to lawyers who practice in both courts").
404. See, e.g., Herrmann, supra note 188, at 336 ("Before 1948, Delaware adhered to the common law system of pleading as it had been developed and existed in England at the time of the separation of the American colonies.").
405. But see Alfred C. Clapp, Making the Federal Rules a Part of New Jersey's Practice, 16 F.R.D. 39, 43-44 (1955) (conveying sense that New Jersey's adoption did not bring about dramatic change in existing state practice).
406. Arguably the legal community already has experience with heightened pleading standards despite Leatherman and Sorema. See Fed. R. Civ. P. 9(b) (requiring specific facts in fraud complaints).
407. See generally Christopher M. Fairman, The Myth of Notice Pleading, 45 Ariz. L. Rev. 987 (2003) (arguing that Court has failed to fully shut door to heightened pleading standards which courts still use).
408. Cf. Epstein. supra note 204, at 313 (discussing how clarity of legal rules affects attorney behavior and legal costs in product liability context).
409. If a state adopts Twombly, federal-Conley claims adjudicated in state court must use the lower pleading standard under Brown. See supra note 137 and accompanying text. If a state retains its notice-pleading standard and a federal claim requiring amplification is adjudicated in state court, the Twombly standard will apply under Burnette.
410. See supra notes 148-151 and accompanying text.
411. See supra notes 186-188 and accompanying text.
412. See Dodson, supra note 3, at 141 ("[T] here may be much rethinking to be had in the state courts to the extent their state procedures are built upon a now-repudiated federal standard.").
413. See Samson, supra note 87, at 28 (characterizing Court as "turn[ing] its back on the Federal Rules").
414. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1983-84 (2007) (Stevens, J., dissenting)
415. (quoting Charles E. Clark, Special Pleading in the "Big Case"?, 21 F.R.D. 45, 46 (1957),
416. reprinted in Procedure-The Handmaid of Justice 147, 148 (Charles Alan Wright & Harry M. Reasoner eds., 1965)).
417. See Halloran, supra note 7, at 24 (welcoming effect of plausibility pleading on "strain that rising caseloads and tight fiscal constraints have imposed on [Arizona] courts" while recognizing tension with drafters of Rules' intent).
418. See, e.g., Dodson, supra note 3, at 135 (using the word "venerable").
419. Indeed, these proponents pursue their goal so ardently that at times it is difficult to distill their arguments against accepting any degree of disuniformity. See Connor Hall, Uniform Law Procedure in Federal Courts, 33 W. Va. L.Q. 131, 132 (1927) ("[They] speak of uniformity as if it were some excellence in itself, something transcendental and absolute; or at least as an undoubted blessing, as health, happiness or virtue. No reason is given why uniformity . . . would be of advantage to any litigant . . . .");
420. Main, supra note 32, at 311-12 ("So deeply is the idea of uniformity embedded in American legal thought that many proceduralists find it difficult or unnecessary to explain why uniformity is thought to be good.").
421. See supra Part I.A.3.
422. See supra notes 44-45 and accompanying text (discussing Professor Wright's conclusion that in a growing number of jurisdictions there was "but one procedure for state and federal courts").
423. Barron & Holtzoff, supra note 44, § 9, at 44.
424. Id.;
425. see also Joseph C. Hutcheson, Federal v. State Rules, 2 F.R.D. 101, 106 (1943) ("My concern is that we do it in the best and most acceptable way. I would not cast or urge a single vote for the Federal rules on the ground of uniformity alone.").
426. See supra text accompanying note 200.
427. Clapp, supra note 231, at 64-67 (explaining failure to adopt federal rules on waiver of jury, reservation of decision on motion for directed verdict, declaratory judgments, and expert witnesses).
428. See Clay, supra note 154, at 438 (reviewing Kentucky adoption);
429. Keely, supra note 188, at 297-98 (Colorado adoption).
430. Clay, supra note 154, at 438.
431. See George Robertson, New Mexico Rules of Civil Procedure for the District Courts, 16 F.R.D. 489, 496-98 (1955).
432. Id. at 498.
433. In addition to the passing of the era of federal-state intrastate uniformity, see supra Part I.A,
434. scholars have documented the balkanization of procedure across federal courts, see supra note 51. Thus, while state adoption of Twombly might bring about conformity in theory, local variations in both federal and state courts necessarily dictate that courts can only achieve a superficial uniformity. But despite this loss of uniformity at a granular level, this Note submits that notice pleading has continued to characterize American civil procedure, and that a shift from notice to plausibility pleading represents a larger, more significant loss of uniformity.
435. See supra Part II.B.
436. For example, California and Louisiana, two states that continue to use code pleading, see Roy L. Brooks, Critical Race Theory: A Proposed Structure and Application to Federal Pleading, 11 Harv. BlackLetter L.J. 85, 100 (1994);
437. Oakley & Coon, supra note 6, at 1378,
438. nevertheless co-opted discovery and joinder provisions from the Federal Rules, see Barron & Holtzoff, supra note 44, § 9, at 44.
439. In a little more than a decade after the Rules took effect, forty-one jurisdictions had adopted some version of Rule 16 regarding pretrial conferences. Id. § 9, at 44 n.12.1;
440. Charles E. Clark, Federal Procedural Reform and States' Rights; to a More Perfect Union, 40 Tex. L. Rev. 211, 214-15 (1961) [hereinafter Clark, States' Rights] ("[T] he famous pre-trial rule, Rule 16, is almost universally available.").
441. Writing in 1961, Professor Clark confidendy asserted, "It is not here necessary to go into the details of the accomplishments made by the rules; they are now known to the profession generally." Clark, States' Rights, supra note 254, at 214.
442. He was, however, compelled to elaborate as to their "total effect": "Not only did they revolutionize the procedure [in federal courts], . . . but additionally they have been widely copied in the several states . . . . It is an interesting fact, whenever there is agitation for improvement, the federal system is assumed to be the model which must be studied." Id. at 214-15.