Burn up the chaff with unquenchable fire: What two doctrinal intersections can teach us about judicial power over pleadings

Boston University Law Review

Volumn 88, Issue 5, 2008, Pages 1217-1270

  Hoffman, Lonny S ^a,b  

^a VANDERBILT UNIVERSITY   (United States)

^b UNIVERSITY OF HOUSTON   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 58149229419     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (385)

1. Matthew 3:11-12 (New Revised Standard) ("I baptize you with water for repentance, but one who is more powerful than I is coming after me .... His winnowing fork is in his hand, and he will clear his threshing floor and will gather his wheat into the granary; but the chaff he will burn with unquenchable fire.").
2. See Jones v. Bock, 127 S. Ct. 910, 914 (2007) (observing that most prison litigation cases, which as of 2005 accounted for almost ten percent of all civil cases filed in federal court, "have no merit" and "many are frivolous," and that "[t]he challenge lies in ensuring that the flood of nonmeritorious claims does not submerge and effectively preclude consideration of the allegations with merit").
3. 28 U.S.C. § 2072 (2000);
4. Compare, Fed. R. Civ. P. 26(b)(1) (stating the current default position that parties may obtain discovery of "any matter, not privileged, that is relevant to the claim or defense of any party" and providing that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action"), with Fed. R. Civ. P. 26(b)(1) (1993) (stating the pre-2000 formulation which makes discoverable any information "relevant to the subject matter involved in the action").
5. Compare Fed. R. Civ. P. 11 (1993) (detailing and expanding the procedure for and nature of sanctions), with Fed. R. Civ. P. (1983) (providing a more general and less severe approach to sanctions). There is a substantial body of academic literature discussing the two versions of Rule 11. See, e.g., Georgene Vairo, Rule 11 and the Profession, 67 FORDHAM L. REV. 589, 591-628 (1998). See generally Symposium: Happy (?) Birthday Rule 11,37 LOY. L.A. L. REV. 516 (2004) (discussing the 1983 and 1993 versions of Rule 11 and the impact the rule has had on enhancing legal professionalism and curbing nonmeritorious litigation).
6. See, e.g., 42 U.S.C. § 1997e(a) (2004) ("No action shall be brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.");
7. Fla. Stat. Ann. § 766.104 (West 2004) (providing that counsel in a medical malpractice action must conduct a reasonable investigation to determine that a good faith basis for a suit exists, and that for purposes of this statutory section, "good faith may be shown to exist if the claimant or his or her counsel has received a written opinion... of an expert");
8. TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (Vernon 2005) (mandating service of plaintiff's expert reports against each defendant health care provider within 120 days after filing suit);
9. FED. R. CIV. P. 68. See generally Robert G. Bone, "To Encourage Settlement": Rule 68, Offers of Judgment, and the History of the Federal Rules of Civil Procedure, 102 Nw. U. L. REV. (forthcoming 2008) (examining the history of the conventional understanding of Rule 68 as a tool for settlement promotion);
10. See generally Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 Geo. L.J. 887 (1999) (examining the history and challenges of "court rulemaking" and advocating for a model of rulemaking in which Congress defers to the court rulemaking process and limits intervention to those situations where there is a compelling need to alter the court-made rules);
11. Stephen B. Burbank, Procedure, Politics and Power: The Role of Congress, 79 Notre Dame L. Rev. 1677 (2004) (providing a historical account of procedural law in the federal courts, with an emphasis on congressional involvement);
12. Charles Gardner Geyh, Paradise Lost, Paradigm Found: Redefining the Judiciary's Imperiled Role in Congress, 71 N.Y.U. L. Rev. 1165 (1996) (discussing the intersection of procedural and statutory reform undertaken by both the Supreme Court and Congress);
13. Richard L. Marcus, Reform Through Rulemaking?, 80 Wash. U. L.Q. 901 (2002) (discussing different views on the history of judicial rulemaking and the impact the rulemaking has had on litigation and the judiciary at large).
14. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward Bethlehem or Gomorrah?, 1 J. EMPIRICAL LEGAL STUD. 591, 624 (2004).
15. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986) (holding that the moving party in a motion for summary judgment may discharge its burden by pointing out an absence of evidence to support the non-moving party's case and characterizing Rule 56 as a rule intended to dispose of nonmeritorious claims);
16. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986) (stating that when deciding motions for summary judgment, "[t]he inquiry performed is the threshold inquiry of determining whether there is the need for a trial");
17. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (explaining that summary judgment is appropriate "[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party").
18. Arthur R. Miller, The Pretrial Rush to Judgment: Are the "Litigation Explosion," "Liability Crisis," and Efficiency Clichés Eroding Our Day in Court and Jury Trial Commitments?, 78 N.Y.U. L. Rev. 982, 1056 (2003).
19. See, e.g., Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1334-35 (2005) (citing, as evidence of the trilogy's impact, data that show a decrease in the number of federal trials and an increase in summary judgment motions since 1986).
20. See Joe S. Cecil et al., A Quarter-Century of Summary Judgment Practice in Six Federal District Courts, 4 J. Empirical Legal Stud. 861, 882 (2007) (collecting empirical evidence and concluding, inter alia, that incidence of summary judgment motion practice began increasing before 1986).
21. BOB DYLAN, THE TIMES THEY ARE A-CHANGIN' (Columbia Records 1964).
22. See, e.g., Stoneridge Inv. Partners, LLC v. Scientific-Atlanta, Inc., 128 S. Ct. 761, 770-72 (2008) (refusing to extend the court-established implied cause of action for section 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5 to customer and supply companies, finding that "there would be a risk that the federal power would be used to invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees. Our precedents counsel against this extension . ...").
23. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2504 (2007) ("Private securities fraud actions,... if not adequately contained, can be employed abusively to impose substantial costs on companies and individuals whose conduct conforms to the law.").
24. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Dabit, 547 U.S. 71, 81 (2006) (identifying judicial and legislative policy considerations which have led the Court and Congress to take steps to curb "perceived abuses of the class-action vehicle in litigation").
25. Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 346-47 (2005) (dismissing plaintiffs claims as insufficient under Fed. R. Civ. P. 8 assuming "that neither the Rules nor the securities statutes impose any special further requirement in respect to the pleading of proximate causation or economic loss," while simultaneously emphasizing the necessity for
26. some "indication of the economic loss and proximate cause"); id. at 347-48 (observing that a low pleading threshold as to the "loss causation" element of a plaintiff's claim in a securities fraud class action "would tend to transform a private securities action into a partial downside insurance policy").
27. See, e.g., Pennsylvania ex rel. Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 182 (3d Cir. 1988) ("[L]itigation today is too expensive a process to waste time on fanciful claims....").
28. Jacobs v. Tempur-Pedic Int'l, Inc., No. 4:07-CV-02-RLV, 2007 WL 4373980, at 2 (N.D. Ga. Dec. 11,2007) (recognizing that while courts should be cautious in granting motions to dismiss prior to discovery, courts must not "forget that proceeding to antitrust discovery can be expensive").
29. Asahi Glass Co. v. Pentech Pharm., Inc., 289 F. Supp. 2d 986,995 (N.D. III. 2003) ("[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase."), cited with approval in Bell AtL. Corp. v. Twombly, 127 S. Ct. 1955,1966(2007).
30. See, e.g., Richard A. Epstein, How Motions to Dismiss Become (Disguised) Summary Judgments, 25 Wash. U. J.L. & Pol'y 61, 65-66 (2007) [hereinafter Epstein, How Motions to Dismiss] ("The nub of the difficulty is that the notice pleading regime of 1938 performs erratically in the context of modern complex litigation... [T]he 1938 Federal Rules of Civil Procedure are not well suited to the complexities of modern litigation, especially in antitrust law, and arguably in other areas as well.").
31. Fed. R. Civ. P. 12(b)(6).
32. See Suja A. Thomas, Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. 1851,1875-76 (2008) (commenting that "[t]he common law demurrer to the pleadings has much similarity to the motion to dismiss" as it is defined in Conley v. Gibson, 355 U.S. 41, 47 (1957), but arguing that post-Twombly the motion to dismiss standard is no longer comparable as it now requires "that the plaintiff... plead a plausible claim").
33. 544 U.S. 336, 346 (2005) (requiring a plaintiff to plead loss causation and stating that failure to require such a pleading would allow parties to file nonmeritorious, abusive claims).
34. 127 S. Ct. 1955, 1964-65 (2007) (requiring a complaint to contain factual matter supporting its claim for relief).
35. 127 S. Ct. 2499, 2508 (2007) (articulating heightened pleading requirements in a "private securities complaint").
36. Cf. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (reversing the court of appeals' dismissal of petitioner's claim under Rule 12(b)(6) and characterizing the pleading requirements after Twombly as akin to the traditional notice pleading standard of Conley). One notable recent attempt at an early empirical study of Twombly's impact found that courts have applied the decision in substantive areas far beyond antitrust, the subject matter of the Twombly litigation. Kendall W. Hannon, Note, Much Ado About Twombly? A Study of the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1814-15 (2008). Its preliminary findings also suggest courts are not granting dismissals at a higher rate after Twombly except in one notable area: civil rights cases. Id. at 1836 n.161 (categorizing civil rights cases as any claims brought under 42 U.S.C. § § 1981,1983, 1985, Bivens claims, and Due Process and Equal Protection claims).
37. The citing references were determined by conducting a query for "Twombly" in the Westlaw ALLCASES database with date restrictions from May 21, 2007, the date of the decision, through February 21, 2008. Dura has also been cited quite frequently since it was announced (approximately 650 times through February 2008 according to an ALLCASES query for "Dura Pharms., Inc. v. Broudo" between January 1, 2005 and February 1, 2008), while Tellabs, a Private Securities Litigation Reform Act (PSLRA) pleading case, understandably has been cited far less often (approximately 250 times through February 2008 according to an ALLCASES query for "Tellabs" between June 21, 2007 and February 1,2008).
38. 477 U.S. 317,323-24(1986).
39. Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy, 63 WASH. & LEE L. REV. 81, 142-44 tbl.l (2006).
40. The citing references were determined by conducting a query for "Celotex Corp. v. Catrett" in the Westlaw ALLCASES database with date restrictions from June 25, 1986, the date of the decision, through March 25, 1986.
41. For studies including prior efforts at gathering statistical evidence on Rule 12(b)(6) practice, see generally PAUL R. J. CONNOLLY & PATRICIA A. LOMBARD, FED. JUDICIAL CTR., JUDICIAL CONTROLS AND THE CIVIL LITIGATIVE PROCESS: MOTIONS (1980);
42. THOMAS E. WILLGING, FED. JUDICIAL CTR., USE OF RULE 12(b)(6) IN TWO FEDERAL DISTRICT COURTS (1989).
43. See also CHARLES ALAN WRIGHT & MARY KAY KANE, LAW OF FEDERAL COURTS 465 (6th ed. 2002) (discussing the results of a 1962 study sampling motions, undertaken at the behest of the Advisory Committee on Civil Rules);
44. Hannon, supra note 23 (offering a preliminary study of reported decisions citing Twombfy);
45. Patricia M. Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1915 n.lll (1998) (including referenced data on Rule 12(b)(6), but indicating that such data was not specifically tracked in the study).
46. See Wendy N. Davis, Just the Facts, But More of Them, A.B.A. J., Oct. 2007, at 16,18 (predicting increased filings of motions to dismiss by defense counsel);
47. infra text accompanying notes 100-110 (discussing how the Twombly standard has seemingly armed defendants with incentives to challenge the sufficiency of plaintiffs' allegations).
48. See JUDICIAL CONFERENCE COMM. ON RULES OF PRACTICE AND PROCEDURE, MINUTES OF THE MEETING OF JANUARY 14-15, at 37-44 (2008) [hereinafter JUDICIAL CONFERENCE COMM. MINUTES], available at http://www.uscourts.gov/rules/Minutes/ ST01-2008-min.pdf.
49. Id. at 44; see FED. R. CIV. P. 9.
50. JUDICIAL CONFERENCE COMM. MINUTES, supra note 30, at 44;
51. see Fed. R. Civ. P. 12(e);
52. Memorandum from Edward Cooper to the Advisory Comm. on Civil Rules, Notice Pleading: The Agenda After Twombly, (Nov. 5, 2007) [hereinafter Cooper Memorandum], available at http://www.uscourts.gov/rules/ Agenda%20Books/CV2007-ll.pdf. For the latest empirical work on Rule 12(e) by the Federal Judicial Center at the behest of the Advisory Committee on Civil Rules, see Memorandum from Joe Cecil & George Cort to the Honorable Michael Baylson, FRCivP 12(e) Motions for a More Definite Statement (Mar. 28, 2007) (on file with author) (concluding, inter alia, that Rule 12(e) motions "are rarely filed, when filed are rarely decided, and when decided are rarely granted").
53. Cooper Memorandum, supra note 32, at 5; see Fed. R. Civ. P. 8.
54. 355 U.S. 41, 47 (1957) (holding that the Federal Rules of Civil Procedure only require "notice pleading" in a complaint, meaning "notice of what the plaintiff's claim is and the grounds upon which it rests").
55. Christopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551, 551 (2002) [hereinafter Fairman, Heightened Pleading];
56. Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 989 (2003);
57. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 435-36 (1986);
58. Richard L. Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1756 (1998) [hereinafter Marcus, The Puzzling Persistence of Pleading Practice].
59. See Phillips v. County of Allegheny, 515 F.3d 224, 230 (3d Cir. 2008) ("Few issues in civil procedure jurisprudence are more significant than pleading standards, which are the key that opens access to courts.");
60. id. at 234 ("The issues raised by Twombly are not easily resolved, and likely will be a source of controversy for years to come.").
61. See Scott Dodson, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135, 135 (2007), available at http://www.virginialawreview.org/ inbrief/2007/07/09/dodson.pdf;
62. Brian Thomas Fitzsimmons, The Injustice of Notice & Heightened Pleading Standards for Antitrust Conspiracy Claims: It Is Time to Balance the Scale for Plaintiffs, Defendants, and Society, 39 Rutgers LJ. 199, 206 (2008);
63. Randy Picker, Twombly, Leegin, and the Reshaping of Antitrust, 2007 Sup. CT. Rev. 161, 177;
64. Robert E. Shapiro, Requiescat in Pace, Litigation, Fall 2007, at 67, 67;
65. A. Benjamin Spencer,Plausibility Pleading, 93 B.C. L. R.ev. 431, 431-32 (2008);
66. The Supreme Court, 2006 Term-Leading Cases, 121 Harv. L. Rev. 185, 305 (2007);
67. Thomas, supra note 19, at 1871; Gregory P. Joseph, Supreme Court Rewrites Pleading Requirements (2008), http://www.josephnyc.com/articles/ viewarticle.php?47;
68. Posting of Michael Dorf to Dorf on Law, http://www.michaeldorf.org/2007/ 07/federal-rale-of-civil-procedure-l-and.html (July 18, 2007, 08:06);
69. Posting of Michael Dorf to Dorf on Law, http://www.michaeldorf.org/2007/ 05/end-of-notice-pleading.html (May 24, 2007, 07:35);
70. Posting of Randy Picker to The University of Chicago Law School Faculty Blog, http://www.uchicagolaw.typepad.com/faculty/2007/05/closing-the-doo.html (May 21, 2007, 16:45).
71. RICHARD EPSTEIN, AEI-BROOKS JOINT CTR. FOR REGULATORY STUDIES, MOTIONS TO DISMISS ANTITRUST CASES: SEPARATING FACT fROM FANTASY 4-5 (2006), cited with approval in Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007); Epstein, How Motions to Dismiss, supra note 17, at 64;
72. see also Max Huffman, The Necessity of Pleading Elements in Private Antitrust Conspiracy Claims, 10 U. PA. J. BUS. & EMP. L. 627, 644 (2008).
73. See infra Part III.A-B.
74. See infra Part III.A-B.
75. See infra note 170.
76. See infra text accompanying notes 277-279.
77. Conley v. Gibson, 355 U.S. 41,47 (1957).
78. Id.
79. FLEMING JAMES, JR. ET AL., CIVIL PROCEDURE § 3.6 (4th ed. 1992).
80. See, e.g., Boyles v. Kerr, 855 S.W.2d 593, 597 (Tex. 1993).
81. Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 514 (2002) ("If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding."); JAMES, supra note 45, § 3.6.
82. Swierkiewicz, 534 U.S. at 512 ("Federal Rule of Civil Procedure 8(a)(2)... provides that a complaint must include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Such a statement must simply 'give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" (quoting Conley, 355 U.S. at 47)).
83. JAMES, supra note 45, § 3.6.
84. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1962 (2007).
85. Id. at 1974.
86. Id.
87. Id. at 1966.
88. Id. at 1964.
89. Keith Bradley, Pleading Standards Should Not Change After Bell Atlantic v. Twombly, 102 NW. U. L. REV. 117, 122 (2007).
90. For a careful discussion of "plus" factors under antitrust law and their relevance to Twombly, see id. at 119.
91. Twombly, 127 S. Ct. at 1964.
92. Id. at 1964-65;
93. see also id. at 1965 n.3.
94. Spencer, supra note 37, at 441.
95. Twombly, 127 S. Ct. at 1965.
96. Id. at 1971 n.10.
97. Id.
98. Id. at 1973 n.14 (quoting Fed. R. Civ. P. 9(b)-(c)) (citation omitted).
99. See id. at 1966.
100. Id. at 1971 n.ll.
101. Id. at 1964.
102. Id. at 1973 n.14.
103. Id. at 1964.
104. Fed. R. CIV. P. 8(a)(2).
105. Twombly, 127 S. Ct. at 1965 n.3 ("[T]he Federal Rules eliminated the cumbersome requirement that a claimant 'set out in detail the facts upon which he bases his claim.'" (quoting Conley v. Gibson, 355 U.S. 41,47 (1957))).
106. Id. Ben Spencer has observed that, as far as the Court is concerned, the most important word in Rule 8(a)(2) is "grounds." Spencer, supra note 37, at 441 (quoting Twombfly, 127 S. Ct. at 1964-65). I agree with Professor Spencer. As I have discussed, the Court highlights the pleader's obligation to allege the "grounds" of his "entitlement to relief."
107. See, e.g., Twombly, 127 S. Ct. at 1965 n.3. Indeed, the relevance of Twombly's repeated references to the words "grounds" and "entitlement to relief will bear relevance to our discussion below of the doctrinal intersection between pleading and removal. See infra Part II.B.l. But if these references are part of the Court's interpretive judgment in Twombly, it is relevant that the former term is not a part of Rule 8 ("grounds" is from Conley, 355 U.S. at 47), while the "entitlement to relief language in Rule 8(a)(2) is necessarily linked to and dependent on the present participle immediately preceding it. Fed. R. Civ. P. 8(a)(2) (stating that the pleading must contain "a short and plain statement... showing that the pleader is entitled to relief (emphasis added)).
108. Twombly, 127 S. Ct. at 1965 n.3 (quoting Conley, 355 U.S. at 47).
109. Conley, 355 U.S. at 45-46;
110. see also Phillips v. County of Allegheny, 515 F.3d 224. 232 (3d Cir. 2008) ("[T]he Supreme Court's emphasis [in Twombly] on Rule 8's requirement of a 'showing' is new.").
111. Twombly, 127 S. Ct. at 1968.
112. Id.
113. Id. at 1969 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)) (emphasis added).
114. Id.
115. Id. at 1969 n.8.
116. FED. R. CIV. P. 8(a)(2).
117. Twombly, 127 S. Ct. at 1965.
118. See Editorial, The Devil in the Details, 91 Judicature 52, 54 (2007) ("Twombly is an exercise in strategic ambiguity that empowers the lower federal courts to tighten pleading requirements in cases or categories of cases that augur similar discovery burdens (or are otherwise disfavored), while preserving deniability in the Court through the use of its discretionary docket to correct perceived excesses ....").
119. Twombly, 127 S. Ct. at 1966-67.
120. Id. at 1967 (quoting Associated Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 528 n.17 (1983)).
121. Id. at 1965-66 (quoting 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1216 (3d ed. 2004)).
122. Id. at 1967.
123. Spencer, supra note 37, at 451-53. Indeed, Spencer suggests a third concern the Court raised which is separate from discovery: heavy judicial caseloads. Id. at 453 (parsing the Twombly opinion and highlighting the Court's reference to "this troika of policy concerns - litigation expense, discovery abuse, and overburdened caseloads").
124. Frank Easterbrook, Comment, Discovery as Abuse, 69 B.U. L. Rev. 635 (1989).
125. Twombly, 127 S. Ct. at 1967 n.6 (citing Frank Easterbrook, supra note 87, at 638-39).
126. Id. at 1967 ("It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through 'careful case management,' given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side." (citations omitted)).
127. Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005), cited in Twombly, 127 S. Ct. at 1966.
128. Twombly, 127 S. Ct. at 1966 (quoting Dura, 544 U.S. at 347).
129. Id. at 1967.
130. Id. at 1967 n.6.
131. Id. at 1967 (quoting Dura, 544 U.S. at 347);
132. see id. 1967 n.6 (citing Easterbrook, supra note 87, at 638-39).
133. See supra notes 34-39.
134. Twombly, 127 S. Ct. at 1964 (citing Epstein, supra note 38, at 3-4).
135. See infra text accompanying notes 250-253.
136. Bradley, supra note 55, at 120;
137. see also Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 F.R.D. 604, 625-32 (2007);
138. Darren Bush & Shubha Ghosh, Predatory Conduct and Predatory Legislation: Exclusionary Tactics in Airline Markets, 45 HOUS. L. REV. 343, 369-74 (2008); infra text accompanying notes 116-121.
139. See Iqbal v. Hasty, 490 F.3d 143, 157 n.7 (2d Cir. 2007) ("[I]t would be cavalier to believe that the Court's rejection of the 'no set of facts' language from Conley . . . applies only to section 1 antitrust claims.").
140. See Davis, supra note 29, at 18. To be sure, Rule 12(b)(6) applies to all allegations - by both plaintiffs and defendants - but for a collection of reasons plaintiffs, not defendants, are the ones who usually face sufficiency challenges. The Supreme Court in Twombly certainly thought that is where the focus of Rule 12(b)(6) predominantly lies. See supra text accompanying notes 70-74.
141. See Hannon, supra note 23, at 1814-15 (showing, through initial empirical work on Twombly, that the case has been applied by courts across many different substantive areas, with antitrust cases representing less than five percent of all reported cases).
142. Thomas, supra note 19, at 1888-89.
143. Suja Thomas, Why Summary Judgment is Unconstitutional, 93 VA. L. REV. 139, 179-80 (2007).
144. Thomas, supra note 19, at 1853-55.
145. See John Bronsteen, Against Summary Judgment, 75 GEO. WASH. L. REV. 522, 526 (2007) ("Because summary judgment is such an integral part of the everyday workings of the U.S. civil justice system, and because everyone assumes that the system would be crushed under the weight of innumerable trials if summary judgment disappeared, courts will turn a blind eye to the interpretive problems raised by [Suja] Thomas and by the litigants who will cite her work."). But see Suja A. Thomas, The Unconstitutionality of Summary Judgment: A Status Report, 93 IOWA. L. REV. 1613, 1621-23 (2008) (citing efforts by lawyers to raise constitutionality concerns as to summary judgment in current litigation).
146. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2512 n.8 (2007) ("In numerous contexts, gatekeeping judicial determinations prevent submission of claims to a jury's judgment without violating the Seventh Amendment.").
147. Spencer, supra note 37, at 431.
148. Shapiro, supra note 37, at 67.
149. Dodson, supra note 37, at 140-41.
150. Picker, supra note 37, at 51.
151. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1981, 1983 (2007) (Stevens, J., dissenting) ("[E]ven if the majority's speculation is correct, its "plausibility" standard is irreconcilable with Rule 8 and with our governing precedents.... We have consistently reaffirmed that basic understanding of the Federal Rules in the half century since Conley.");
152. Shapiro, supra note 37, at 68 ("[W]hether you rely on first impressions or careful analysis, Twombly seems to change the rules .... Given the facts of Twombly, it did not just overrule Conley, it seems to overrule notice pleading itself.");
153. Spencer, supra note 37, at 445-46 ("The problem with [the Twombly majority's] view of Rule 8(a)... is that it significantly raises the pleading bar beyond where Conley had placed it long ago.").
154. Spencer, supra note 37, at 479 (stressing that, in a departure from the "liberal ethos" underlying the rules' original goal of providing litigants access to resolving disputes, the Twombly Court "appears to have exalted goals of sound judicial administration and efficiency above the original core concern of the rules").
155. Epstein, How Motions to Dismiss, supra note 17, at 63 (stating that the Supreme Court "has taken a position that is consistent with the view of notice pleading that animated the drafting of the Federal Rules": to facilitate access to litigants with valid judicial claims).
156. Geoffrey C. Hazard, From Whom No Secrets Are Hid, 76 TEX. L. REV. 1665, 1685 (1998) ("Literal compliance with Conley v. Gibson could consist simply of giving the names of the plaintiff and the defendant, and asking for judgment."), cited with approval in Twombly, 127 S. Ct. at 1969.
157. Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curium) (emphasizing Rule 8's notice-pleading standard by refusing to require the pleading of specific facts).
158. 534 U.S. 506, 508 (2002) (reversing the dismissal of a plaintiff's claim in which the lower court required the pleading of "special facts," and holding that a claim must only demonstrate entitlement to relief).
159. Ides, supra note 98, at 625-32.
160. Id. at 629 ("[T]he Court's opinion holds that as a matter of Substantive Sufficiency, a complaint asserting a § 1 Sherman Act claim must include 'factual matter' plausibly suggestive of an agreement in restraint of trade.").
161. See, e.g., Fairman, Heightened Pleading, supra note 35, at 574-96;
162. Marcus, The Puzzling Persistence of Pleading Practice, supra note 35, at 1764-66;
163. see also supra notes 34-35 and accompanying text.
164. See Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit Investigatory Discovery, 40 U. MICH. J.L. REFORM 217, 262-67 (2006) [hereinafter Hoffman, Access to Information] (addressing the problem of ex ante influences on litigant decisionmaking based on perceptions of formal barriers to entry); infra text accompanying PartIII.D.1.
165. Ides, supra note 98, at 606.
166. See, e.g., Dodson, supra note 37, at 138;
167. The Supreme Court, 2006 Term, supra note 37, 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").
168. Dodson, supra note 37, at 139 (observing that in cases with asymmetric access to information, "the Court's standard is likely to bar many antitrust cases (and mass tort, discrimination, and a host of other cases) with merit").
169. Indeed, the financial giants named as defendants in Twombly would seem to have been precisely the sort capable of absorbing the discovery burdens awaiting them.
170. See supra text accompanying notes 92-94 (discussing discovery costs used as leverage to broker settlements for nonmeritorious lawsuits).
171. In 1997, Tom Willging led a study for the Federal Judicial Center which was subsequently published after a conference held at Boston College Law School. Thomas E. Willging et al., An Empirical Study of Discovery and Disclosure Practice Under the 1993 Federal Rule Amendments, 39 B.C. L. REV. 525 (1998). One of the major conclusions of the study was that over half of lawyers interviewed reported that they had no problems with obtaining document production, initial disclosure, expert disclosure, or depositions in their case.
172. Id. at 553-54 tb1.10. Willging's study cogently summed up what the empirical data regarding discovery practices has shown:
173. Empirical research about discovery in civil litigation has yielded results that differ from the conventional wisdom, which claims that discovery is abusive, time-consuming, unproductive, and too costly. In contrast to this picture of discovery, empirical research over the last three decades has shown consistently that voluminous discovery tends to be related to case characteristics such as complexity and case type, that the typical case has relatively little discovery, conducted at costs that are proportionate to the stakes of the litigation, and that discovery generally - but with notable exceptions - yields information that aids in the just disposition of cases. The results of the [present] FJC study reported in this Article are, for the most part, consistent with those findings. ... Our research suggests ... that for most cases, discovery costs are modest and perceived by attorneys as proportional to parties' needs and the stakes in the case. Id. at 527, 531. In short, few cases seem to have the kind of significant discovery expenses and controversies the Twombly court found so troubling.
174. Nor do we know what accounts for the heightened discovery costs that exist even within a small segment of the litigation population. In this regard, Elizabeth Thornburg has powerfully argued that concern over discovery abuse primarily seems to focus only on one side of the street: that is, on abusive requests (and, even more one-sidedly, on abusive requests by plaintiffs).
175. See Elizabeth G. Thornburg, Giving the "Haves" a Little More: Considering the 1998 Discovery Proposals, 52 SMU L. Rev. 229, 229-31 (1999). That defendants can equally be perpetrators of abusive discovery is rarely considered. Critics who focus on abusive requests rarely consider "abusive resistance to discovery, even though empirical research has consistently identified resistance as a bigger problem than overbroad requests." Id. at 240. Thus, the burden on those who would peg a heightened pleading standard to an assumption of high discovery costs and attendant abuses must be able to demonstrate that the source of those problems largely lies on the plaintiffs side of the ledger. More rigorous scrutiny of the plaintiff's allegations cannot be supported on an account of rampant discovery costs and abuses if defendants are equally or more responsible for these costs and abuses.
176. Phillips v. County of Allegheny, 515 F.3d 224, 230 (2007) ("What makes Twombly's impact on the Rule 12(b)(6) standard initially so confusing is that it introduces a new 'plausibility' paradigm for evaluating the sufficiency of complaints. At the same time, however, the Supreme Court never said that it intended a drastic change in the law ....")
177. see Cooper Memorandum, supra note 32, at 6 ("The
178. FED. R. CIV. P. 56.
179. 28 U.S.C. §§ 1441, 1446, 1447 (2000).
180. FED. R. CIV. P. 8(a)(2).
181. FED. R. CIV. P. 56(c).
182. See supra Part I.B (discussing the relevance placed by the Twombly majority on Rule 8(a)(2)'s "showing" requirement);
183. infra text accompanying notes 140-144 (discussing Celotex's interpretation of the "show" requirement in Rule 56).
184. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007).
185. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 585-88 (1986) (requiring plaintiffs in antitrust cases to meet a heightened showing for an inference of conspiracy to survive a summary judgment motion).
186. Epstein, How Motions to Dismiss, supra note 17, at 77;
187. Spencer, supra note 37, at 487;
188. Thomas, supra note 19, at 1866 n.89.
189. Twombly, 127 S. Ct. at 1966-67;
190. Epstein, How Motions to Dismiss, supra note 17, at 66-67.
191. Twombly, 127 S. Ct. at 1965.
192. Fed. R. Civ. P. 56(c).
193. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986);
194. see also Martin H. Redish, Summary Judgment and the Vanishing Trial: Implications of the Litigation Matrix, 57 STAN. L. REV. 1329, 1348 (2005) ("Celotex most clearly altered well-established summary judgment practice, and in any event, Celotex, far more than the others [in the trilogy], decisively opened the eyes of the federal courts to the propriety of summary judgment in certain cases .").
195. See Redish, supra note 140, at 1345 ("Since Celotex, the majority of lower federal courts have wisely read that decision to impose virtually no burden at all on the movant where she would have no burden of proof at trial.").
196. But see Celotex, 477 U.S. at 328 (White, J., concurring) ("[T]he movant must discharge the burden the Rules place upon him: It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.");
197. cf. Adam N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After the Trilogy, 63 WASH. & LEE L. REV. 81, 122-25 (2006) (discussing a defendant's burden in summary judgment motions after Celotex as requiring the defendant point to deficiencies in "Rule 56(c) documents that would be expected to reveal any evidence supporting the plaintiffs claim" when such documents are available).
198. Twombly, 127 S. Ct. at 1965.
199. Celotex, 411 U.S. at 324.
200. Id. at 325.
201. See infra text accompanying notes 226-228 (arguing that the nature and timing of summary judgment justify a lower burden on moving parties).
202. Writs of mandamus are a prime example. See, e.g., Ex parte Fahey, 332 U.S. 258, 259-60 (1947) ("Mandamus, prohibition and injunction against judges are drastic and extraordinary remedies. As extraordinary remedies, they are reserved for really extraordinary causes.").
203. See, e.g., TEX. R. CIV. P. 166a.
204. But see TEX. R. CIV. P. 166a(i) (providing the 1999 revisions to supplement the state's "traditional" motion for summary judgment historically available under Rule 166a with a "no-evidence" summary judgment motion which closely tracks the federal standard under Rule 56).
205. See generally D. Theodore Rave, Note, Questioning the Efficiency of Summary Judgment, 81 N.Y.U.L. REV. 875, 891-94 (2006) (arguing that a plaintiffs position may be stronger if it survives a motion for summary judgment than it would be if summary judgment was never sought, and thus the defendant has an incentive to put on a stronger showing when moving for summary judgment).
206. Anderson v. Liberty Lobby, 477 U.S. 242,267 (1986) (Brennan, J., dissenting).
207. Relatedly, the nonmovant who survives summary judgment may have less incentive to settle. See Rave, supra note 148, at 891-92 & n. 100.
208. Cf. Paul D. Carrington & Andrew Wasson, A Reflection on Rulemaking: The Rule 11 Experience, 37 LOY. L.A. L. REV. 563, 564 (2004) ("A measurable increase in filings of contract disputes seemingly reflected an apparent tendency of businesses to take their disputes to court more frequently than they had in the past. This might be plausibly explained by the entrenchment in the third quarter of the twentieth century of the practice of business litigators to bill for their services by the hour, for this created a strong incentive to leave no stone unturned and no motion unmade.").
209. 28 U.S.C. § 1446 (2000) (describing the procedures for removal).
210. Id. § 1441 (describing the conditions under which a defendant may choose to remove a civil action from a state court to a federal court of competent jurisdiction).
211. Id. § 1446.
212. Kevin M. Clermont & Theodore Eisenberg, CAFA Judicata: A Tale of Waste and Politics, 156 U. PA. L. REV. 1553, 1575 (2008) (observing that the plaintiff is the master of her complaint and "gets his or her way if there is a possibility that his or her position is correct").
213. Shamrock Oil & Gas Corp. v. Sheets, 313 U.S. 100, 108 (1941);
214. see also Syngenta Crop Prot., Inc. v. Henson, 537 U.S. 28, 32 (2002) (quoting Shamrock, 313 U.S. at 108, for the proposition that the "policy underlying removal statutes 'is one calling for the strict construction of such legislation'").
215. 28 U.S.C. § 1446(a).
216. Id.
217. 28 U.S.C. § 1446 (1982) (current version at 28 U.S.C. §1446 (2000)).
218. Id.
219. H.R. REP. No. 100-889, at 71-72 (1988), as reprinted in 1988 U.S.C.C.A.N. 5982, 6032.
220. Id.
221. See supra note 160 and accompanying text.
222. H.R. Rep. No. 100-889, at 71-72;
223. cf. Mich. Mfrs. Serv., Inc. v. Robertshaw Controls Co., 134 F.R.D. 154, 156 (E.D. Mich. 1991) (quoting the same House Committee Report, apparently in error, as making an explicit reference to Rule 8(a)(1)).
224. FED. R. CIV. P. 8(a)(1).
225. FED. R. CIV. P. 8(a)(2).
226. FED. R. CIV. P. 8(a)(3).
227. 28 U.S.C. § 1446(a) (2000).
228. See, e.g., Lowery v. Alabama Power Co., 483 F.3d 1184, 1216-17 (11th Cir. 2007).
229. 4 (N.D.N.Y. 2007) (citing Bell Atl. v. Twombly, 127 S. Ct. 1955, 1965-74 (2007)) (stating that "the amount in controversy plausibly suggested by the factual allegations of Plaintiff' met the statutory requirement).
230. 28 U.S.C. § 1332(a).
231. Twombly, 127 S. Ct. at 435.
232. Twombly, 127 S. Ct. at 1964.
233. Id. at 1964 (emphasis added).
234. 28 U.S.C. § 1446(a) (emphasis added). See also infra text accompanying notes 184-186 (discussing how the burden of proof in removal is at least as high (if not higher) than the standard under Rule 8).
235. 28 U.S.C. § 1447(c) (2000) (providing that "[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal").
236. Judiciary Act of 1789, ch. 20, § 12, 1 Stat. 73, 79-80 (1789). See generally Lonny Sheinkopf Hoffman, Removal Jurisdiction and the All Writs Act, 148 U. Pa. l. Rev. 401, 437-39 (1999) (discussing the original removal provision in the Judiciary Act of 1789).
237. See Kevin M. Clermont, Jurisdictional Fact, 91 CORNELL L. REV. 973, 1008-11 (2006) (discussing the difficulty in analyzing the merits of claims on the basis of jurisdiction); Kevin M. Clermont, Procedure's Magical Number Three: Psychological Bases for Standards of Decision, 72 CORNELL L. REV. 1115, 1118-26 (1987) (examining various judicial standards and the cognitive reasons for creating them even when they fail to clearly establish clear judicial guidelines).
238. Clermont & Eisenberg, supra note 155, at 1570-71 (citations omitted).
239. Class Action Fairness Act of 2005, Pub. L. No. 109-2, 119 Stat. 4 (2005) (codified at 28 U.S.C. §§ 1332(d), 1453, 1711-15 (2006)).
240. E.g., Brill v. Countrywide Home Loans, Inc., 427 F.3d 446, 448-49 (7th Cir. 2005);
241. see also Clermont & Eisenberg, supra note 155, at 1574 ("The Brill court seems to have required merely as a burden of production that the defendant show by a preponderance that the claim exceeded the jurisdictional amount. At the same time, the court said that this showing would sustain federal jurisdiction unless the plaintiff could come back to show to a legal certainty that the claim did not meet the jurisdictional amount.").
242. Lonny Sheinkopf Hoffman, Burdens of Jurisdictional Proof, 59 ALA. L. REV. 409, 419-34 (2008) [hereinafter Hoffman, Burdens of Jurisdictional Proof] (discussing that the shift of the burden of demonstrating the case falls within one of the jurisdictional "exceptions" onto the plaintiff).
243. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94-95 (1998);
244. Hoffman, Burdens of Jurisdictional Proof, supra note 182, at 414.
245. But see Michael Collins, Jurisdictional Exceptionalism, 93 VA. L. REV. 1829, 1830-31 (2007). Collins argues: Federal courts exercise limited jurisdiction. They can hear only those cases and controversies provided for in Article III of the Constitution and implemented by Congress. Arising from the limited nature of their power is a long-standing "first principle of federal jurisdiction" that requires federal courts to dismiss a suit at any stage of the proceedings if subject matter jurisdiction is lacking. Closely related to this first principle are the presumption against the existence of jurisdiction and the imposition of the burden to establish it upon the party who invokes it.
246. Id. Collins's historical research suggests, however, that longstanding federal practice was different than the conventional understanding of limited jurisdiction.
247. Id. at 1836.
248. See Clermont & Eisenberg, supra note 155, at 1578 ("The standard of proof is determinative of jurisdiction, meaning that the parties know what they are doing when they wage battle over this seemingly arcane point. [T]he party whom the court sticks with the burden of proof on a spongy jurisdictional determination will suffer.");
249. Hoffman, Burdens of Jurisdictional Proof, supra note 182, at 411-12 ("[Allocation of the burden of proof is a key determinant in the forum contest's outcome.").
250. Clermont & Eisenberg, supra note 155, at 1571-72 (characterizing the predominant "preponderance of the evidence" standard as a "still tough approach against removal jurisdiction").
251. See supra text accompanying notes 155-156 (listing federalism and the presumption that plaintiff is master of her complaint as two such examples).
252. 14 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE & PROCEDURE: JURISDICTION § 3734, at 370 (3d ed. 1998) ("[I]n practice, the federal courts usually do not limit their inquiry to the face of the plaintiffs complaint, but rather consider the facts disclosed on the record of the case as a whole in determining the propriety of removal.");
253. accord Villarreal v. Brown Express, Inc., 529F.2d 1219,1221 (5th Cir. 1976) (citing WRIGHT ET AL., supra).
254. 28 U.S.C. § 1332 (2000) (granting federal district courts original jurisdiction in civil actions between citizens of different states).
255. WRIGHT ET AL., supra note 187, § 3734, at 368-69.
256. Id. at 370-72; 28 U.S.C. § 1332.
257. See 28 U.S.C § 1446(b).
258. See Smallwood v. III. Cent. R.R. Co., 385 F.3d 568, 573 (5th Cir. 2004) (stating that post-removal discovery may be permissible, but "should not be allowed except on a tight judicial tether, sharply tailored to the question at hand, and only after a showing of its necessity").
259. See Lowery v. Alabama Power Co., 483 F.3d 1184, 1215 (11th Cir. 2007) (refusing to allow post-removal discovery on a jurisdictional matter based on policy grounds and judicial economy).
260. WRIGHT ET AL., supra note 187, § 3734, at 368 ("[S]uch a limitation would encourage a plaintiff who wished to remain in state court to plead in a way that would obscure any basis for removal.").
261. Id. ("There are many situations in which the requisite jurisdictional facts will not appear on the face of the state court complaint and if the defendant cannot show that the existence of these missing facts by excluding them in the notice of removal, he might be deprived of the statutory right to remove.").
262. See infra Part HID.
263. See supra note 161 and accompanying text.
264. FED. R. CIV. P. 11.
265. 28 U.S.C. § 1447(c) (2000).
266. See, e.g., Sirotzky v. N.Y. Stock Exch., 347 F.3d 985, 987 (7th Cir. 2003) (acknowledging that § 1447(c) authorizes an award of fees for obtaining a remand order but that the entitlement is not automatic), abrogated by Martin v. Franklin Capital Corp., 546 U.S. 132 (2005);
267. Hofler v. Aetna US Healthcare, Inc., 296 F.3d 764, 770 (9th Cir. 2002) (awarding fees where defendant's removal argument was wrong as a matter of law even though the position was "fairly supportable"), abrogated by Martin v. Franklin Capital Corp., 546 U.S. 132(2005).
268. 546 U.S. 132(2005).
269. Id. at 141.
270. 127 S. Ct. 2301 (2007).
271. Id. at 2304.
272. Id.
273. 28 U.S.C. § 1442(a)(1) (2000).
274. Watson, 127 S. Ct. at 2309 ("Philip Morris is 'acting under' officers of the FTC when it conducts cigarette testing.").
275. Id. at 2304.
276. Id.
277. See, e.g., Arendall v. Dennis Joslin Jamaica, Inc., No. 07-0452-BH-B, 2007 WL 2480271, at *2 (S.D. Ala. Aug. 28, 2007) (observing that "defendants' request for post- removal discovery to support their fraudulent joinder/misjoinder arguments belies their contention that removal was proper in this case" but neither mentioning or imposing a fee award under § 1447(c)).
278. For an example of the movement of courts in opposite directions compare Rescuecom Corp. v. Chumley, 522 F. Supp. 2d 429, 435 (N.D.N.Y. 2007),
279. where Judge Scullin demonstrates lenience in removal allegations, with Riegel v. New York ex rel. N. Y. State Dep't ofTransp., No. 1:05-CV-1503, 2008 WL 150488, at *6 (N.D.N.Y. Jan. 18, 2008), where Judge Scullin exercises a more strict review of pleadings based on the heightened standard after the Twombly decision.
280. See supra text accompanying notes 174-175.
281. FED. R. CIV. P. 8(a)(2).
282. 28 U.S.C. § 1446(a) (2000).
283. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1964-65 (2007).
284. FED. R. CIV. P. 8(a)(2).
285. Twombly, 127 S. Ct. at 1964-65 (quoting Conley v. Gibson, 355 U.S. 41,47 (1957)).
286. Id. at 1965 n.3 (quoting Conley, 355 U.S. at 47).
287. FED. R. CIV. P. 8(a)(1).
288. FED. R. CIV. P. 8(a)(2).
289. FED. R. CRV. P. 11; Lowery v. Ala. Power Co., 483 F.3d 1184, 1217 (11th Cir. 2007) (indicating that a defendant who removes an action and thereby "represent[s] to the court that the case belongs before it" is in a similar position as a plaintiff filing a complaint with regards to being subject to Rule 11).
290. Lowery, 483 F.3d at 1217;
291. see also FED. R. CIV. P. 11.
292. FED. R. CIV. P. 11(b)(3).
293. See supra text accompanying notes 155-156.
294. See supra text accompanying notes 111-115.
295. See supra Part II.A.2.
296. FED. R. CIV. P. 56(f). Rule 56(f) states: Should it appear from the affidavits of a party opposing the [summary judgment] motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
297. Id. See also Crawford-El v. Britton, 523 U.S. 574, 600 n.20 (1998) (recognizing that under Rule 56(f) the trial judge has "discretion to postpone ruling on a defendant's summary judgment motion if the plaintiff needs additional discovery to explore 'facts essential to justify the party's opposition'" (quoting FED. R. CIV. P. 56(f))).
298. But see supra Part II.A. 1 (discussing how the doctrinal intersection of pleading and summary judgment allows the consideration of dismissal at pleading to serve the same function as summary judgment, just earlier in the proceeding).
299. See Stephen J. Choi, Karen K. Nelson & A.C. Pritchard, The Screening Effect of the Private Securities Litigation Reform Act 19-26 (Univ. of Mich. Law Sch. John M. Olin Ctr. for Law & Econ., Working Paper No. 07-008, 2007), available at http://www.law.umich.edu/ centersandprograms/olin/abstracts/Pages/07-008.aspx (reporting the results of predictive models on the impact of the heightened pleading requirement in the PSLRA and finding that the PSLRA is screening out both claims with and without merit);
300. see infra text accompanying notes 262-269 (explaining that the PSLRA's heightened pleading requirement creates what Choi, Nelson, and Pritchard call a "screening effect," where fewer cases - both meritorious and nonmeritorious - are brought and a greater number of meritorious cases that are brought are dismissed).
301. See, e.g., Dodson, supra note 37, at 142 (explaining it is difficult to determine what "plausible" means);
302. Epstein, How Motions to Dismiss, supra note 17, at 76-77 (calling the distinction between conceivable and plausible "fuzzy");
303. Shapiro, supra note 37, at 69 ("What really is the new standard? Plausibility? What does that mean? And if we don't know, isn't that a huge problem?");
304. Spencer, supra note 37, at 450 (explaining there are three zones of pleading, but the requirements for each zone are unclear);
305. Thomas, supra note 19, at 43 (explaining that judges instead of juries now have to determine on a case-by-case basis what is plausible);
306. The Supreme Court, 2006 Term, supra note 37, at 311-12 (arguing the new standard creates problems of having confusing technicalities).
307. Joseph, supra note 37 ("[E]rring on the side of including more rather than fewer facts is the safer course.").
308. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1963 (2007);
309. cf. NicSand v. 3M Co., 507 F.3d 442,457 (6th Cir. 2007) ("The key failing in NicSand's complaint is not that it has too few details but that it has too many.");
310. EEOC v. Concentra Health Servs., Inc., 496 F.3d 773, 780 (7th Cir. 2007) (finding that removing information from a deficient complaint in order to obscure the nature of the claim "does not intuitively comport with the purposes of notice pleading").
311. See Melissa L. Nelken, Sanctions Under Amended Rule 11 - Some "Chilling" Problems in the Struggle Between Compensation and Punishment, 74 GEO. L.J. 1313, 1314 (1986) (suggesting that Rule 11 sanctions are a deterrent to filing cases, regardless of whether the sanctions are a punishment or a compensation);
312. Carl Tobias, Rule 11 Recalibrated in Civil Rights Cases, 36 VILL. L. REV. 105, 115 (1991) (acknowledging that some courts are reluctant to impose Rule 11 sanctions because they may "repress efforts to vindicate civil rights");
313. Georgene M. Vairo, Rule 11: A Critical Analysis, 118 F.R.D. 189, 220-21 (1988) (suggesting the fear of Rule 11 sanctions at the pleading stage will result in fewer meritorious claims being filed);
314. cf. Georgene M. Vairo, Commentary, Rule 11: Where Are We and Where Are We Going, 60 FORDHAM L. REV. 475, 483 (1991) (describing the deterrent effect of the 1983 version of Rule 11 on at least certain prospective claimants, including those who might have alleged civil rights, employment discrimination, securities fraud cases, and antitrust cases). The 1989 Report of the Third Circuit Task Force on Rule 11, led by Stephen Burbank, offered further empirical evidence of this dynamic.
315. STEPHEN B. BURBANK, RULE 11 IN TRANSITION: THE REPORT OF THE THIRD CIRCUIT TASK FORCE ON FEDERAL RULE OF CIVIL PROCEDURE 11, at 71-72 (1989) (finding that Rule 11 cost-shifting may lead to massive over-deterrence of the number of civil rights cases filed).
316. See The Supreme Court, 2006 Term, supra note 37, at 314 ("Nor did the [Twombly] Court consider the fact that heightened pleading standards increase the cost of litigation for all plaintiffs, not merely those filing meritless claims.").
317. Shapiro, supra note 37, at 69; Editorial, The Devil in the Details, supra note 81, at 52 ("[Twombly] may close the courthouse to people who previously were able to sue .").
318. See Harmon, supra note 23, at 1836 n.161 (discussing an empirical study of Twombly's impact on determining sufficiency of pleadings under Rule 8 and observing that courts may be more likely to apply heightened standards to civil rights claims).
319. Private Securities Litigation Reform Act, Pub. L. No. 104-67, 109 Stat. 737 (codified as amended in scattered sections of 15 U.S.C);
320. see infra Part III.D.l (examining studies which found high dismissal rates at the pleading stage for securities claims under the PSLRA).
321. Experience with Rule 11 suggests similar lessons. Burbank, supra note 9, at 622 (drawing a comparison between summary judgment and Rule 11 experiences and observing that, with empirical evidence as to the latter, the "myths of simple, uniform, and transsubstantive rules went up in smoke");
322. see Stephen B. Burbank, The Transformation of American Civil Procedure: The Example of Rule 11, 137 U. PA. L. REV. 1925, 1963-64 (1989) (finding that Rule 11 applied neither transsubstantively nor equally across the bar).
323. Cecil et al., supra note 13, at 863; Memorandum from Joe Cecil & Joe Cort to the Honorable Michael Baylson, The Federal Judicial Center, Estimates of Summary Judgment Activity in Fiscal Year 2006 (Apr. 12, 2007) (revised June 15, 2007) (on file with author) [hereinafter Cecil & Cort].
324. Cecil et al., supra note 13, at 862.
325. Id. at 861.
326. Id. at 863; Cecil & Cort, supra note 239, at 3 tb1.1, 6 tb1.3.
327. Cecil & Cort, supra note 239, at 6 tb1.3.
328. Id. at 3 tb1.1.
329. Id. at 9 tb1.4.
330. Id. In a similar regard, Steve Burbank has remarked that the empirical evidence also suggests at least some plaintiffs are being required to produce more evidence at the summary judgment stage than they would be required to offer at trial. Burbank, supra note 9, at 624 & n. 146. That should prompt concern that robust summary judgment practice may amount to "a demand for more 'evidence' at the summary judgment stage than would, when reduced to admissible form, suffice to support a jury verdict if the case were permitted to proceed to trial...."
331. Id. Perhaps not surprisingly, given the FJC data previously noted, the phenomenon appears especially pronounced in employment discrimination cases.
332. Burbank, supra note 9, at 622 (concluding, based on his own empirical work, that "even the most hard-hearted empiricist [should be persuaded] that some litigants in some types of cases in some courts are not receiving reasonable opportunities to present their cases").
333. Joseph A. Grundfest & A.C. Pritchard, Statutes with Multiple Personality Disorders: The Value of Ambiguity in Statutory Design and Interpretation, 54 STAN. L. REV. 627, 634 (2002) (finding great variances across circuits - and even within circuits - in judicial interpretation of the "strong inference" pleading standard required by the PSLRA);
334. A.C. Pritchard & Hillary A. Sale, What Counts As Fraud? An Empirical Study of Motions to Dismiss Under the Private Securities Litigation Reform Act, 2 J. EMPIRICAL LEGAL STUD. 125, 142 (2005) (comparing Second and Ninth Circuit decisions applying the PSLRA at the motion to dismiss stage, and finding the Ninth Circuit courts dismissed those claims at a rate of 63% compared to the Second Circuit's rate of 36%).
335. Grundfest & Pritchard, supra note 248, at 679 (observing that "[t]he level of discretion [under the PSLRA pleading standard] is sufficiently great that judges frequently can dispose of motions in a manner they deem most appropriate without being overly constrained by the formal definition of the standard").
336. Epstein, How Motions to Dismiss, supra note 17, at 81.
337. Id.
338. Id. at 97.
339. See generally, Hoffman, Access to Information, supra note 120.
340. Id. at 220.
341. Graham Hughes, Administrative Subpoenas and the Grand Jury: Converging Streams of Criminal and Civil Compulsory Process, 47 VAND. L. REV. 573, 574 (1994).
342. Hoffman, Access to Information, supra note 120, at 225-30.
343. Several studies of closed-claim medical malpractice files have also shown that the desire to access information is one reason at least some claimants file suit. Gerald B. Hickson et al., Factors that Prompted Families to File Medical Malpractice Claims Following Perinatal Injuries, 267 J. AM. MED. ASS'N 1359, 1361 (1992);
344. WILLIAM M. SAGE, Medical Liability and Patient Safety, 22 HEALTH AFF. 26, 31 (2003);
345. see also Bernard Black et al., Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, 2 J. EMPIRICAL LEGAL STUD. 207,227 (2005).
346. Randall S. Thomas & Kenneth J. Martin, Using State Inspection Statutes for Discovery in Federal Securities Fraud Actions, 77 B.U. L. REV. 69, 71 (1997) (footnotes omitted).
347. See, e.g., Oliveri v. Thompson, 803 F.2d 1265, 1279 (2d Cir. 1986) (refusing, in a civil rights suit based on police misconduct, to impose sanctions where "it is extremely unlikely that before formal discovery any citizen would or could be in possession of [sufficient] information" to support the claim); Conrad M. Shumadine et al. Patents, Copyrights, Trademarks, and Literary Property Course Handbook Series 40 (PLI Libel Litig. Practice, Course Handbook Series No. 604, 2000) (observing that in libel actions against media defendants, "evidence concerning the critical fault element lies with the defendant");
348. Carl Tobias, Rule 11 and Civil Rights Litigation, 37 BUFF. L. REV. 485, 498 (1989) (observing that "in numerous civil rights suits, considerable information important to the factual preparation of complaints that appear specific will be in the records or minds of government or corporate defendants and cannot be secured before these pleadings must be filed, becoming available only during discovery");
349. see also Robert G. Bone, Modeling Frivolous Suits, 145 U. PA. L. REV. 519, 542-58 (1997) (discussing informational imbalances between plaintiffs and defendants).
350. See supra Part III.B.
351. Randy Picker has powerfully observed the problem of information asymmetry in the specific context of antitrust: Antitrust laws are enforced through a mix of private and public efforts. Twombly limits the efficacy of private lawsuits. The Court majority does not seem to recognize the fundamental problem that the critical information regarding the existence or nonexistence of a possible conspiracy resides in the hands of potential defendants. Private litigation substitutes, at least in part, for public enforcement or regulation. The federal government has broad, but not unlimited, authority to serve civil investigative demands (CIDs) prior to bringing an antitrust action. Twombly shrinks the domain of private plaintiffs and it does so without even a passing thought about what that will do to the overall level of antitrust enforcement. Picker, supra note 37, at 21 (footnote omitted);
352. see also id. at 5 ("Twombly raises some basic questions about the mechanics of an adversarial court system. Plaintiffs will often have much less information about possible liability than defendants.").
353. Choi, Nelson & Pritchard, supra note 229, at 3.
354. Choi, Nelson, and Pritchard explain a nuisance value as the amount a defendant will be willing to pay as a settlement to avoid "the distraction of litigation, high defense attorney fees, negative publicity surrounding a securities lawsuit, and the specter of potentially bankrupting damages" in arguably nonmeritorious cases. Id. at 4.
355. Id. at 21 ("The actual fraction of nuisance suits is 50% pre-PSLRA; our prediction model suggests that only 41% of these firms would have been sued under the PSLRA regime. These suits, of course, are the ones that Congress sought to deter by adopting the PSLRA, so the law is to some extent working as intended.").
356. Id. at 3.
357. Id. at 26.
358. Id. at 22.
359. Id. at 13.
360. See supra Part II.B.2.b.
361. WRIGHT ET AL., supra note 187, at 1-2.
362. Cf. Collins, supra note 183, at 1832 (describing the limited jurisdiction of federal courts and pointing out that federal courts can at any time dismiss a case for lack of jurisdiction).
363. See supra text accompanying notes 155-156.
364. See supra Part II.B.2.a.
365. CHARLES ALAN WRIGHT, LAW OF FEDERAL COURTS 163-64 (3d ed. 1976) ("[T]he citizenship of the parties will not normally be set forth in a state court complaint, and the defendant, seeking to remove on the basis of diversity, must be permitted to show these facts in his petition. In some circumstances the complaint will not sufficiently disclose the jurisdictional amount, and the petition must be used for this purpose." (footnotes omitted)).
366. In this connection, I am reminded of Linda Silberman's wonderful observation about confusing the relative importance of choice of law and jurisdiction. Linda J. Silberman, Commentary, Shaffer v. Heitner: The End of an Era, 53 N.Y.U. L. REV. 33, 88 (1978) ("To believe that a defendant's contacts with the forum state should be stronger under the due process clause for jurisdictional purposes than for choice of law is to believe that an accused is more concerned with where he will be hanged than whether.").
367. See supra text accompanying notes 85-94, 122-128.
368. For instance, in their 2004 study of the impact of Amchem Prods., Inc. v. Windsor, 521 U.S. 591 (1997), and Ortiz v. Fibreboard Corp., 521 U.S. 1114 (1997), on forum selection by attorneys in class action litigation, Tom Willging and Shannon Wheatman observed the widespread perception among the practicing bar, on both sides of the aisle, of the relative advantages and disadvantages that state and federal forums can offer.
369. THOMAS E. WILLGING & SHANNON R. WHEATMAN, FED. JUDICIAL CTR., ATTORNEY REPORTS ON THE IMPACT OF AMCHEM AND ORTIZ ON CHOICE OF A FEDERAL OR STATE FORUM IN CLASS ACTION LITIGATION 22-26 (2004).
370. Kevin Clermont and Ted Eisenberg, who have compiled the best empirical evidence on this score, have arguably confirmed the predominant view. They report a drop in plaintiffs' win rate in federal court, across all classes of cases, from 58% to just above 36%, when the case was first filed by the plaintiff in state court and successfully removed by defendant into federal court.
371. Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L. REV. 581, 593-95 (1998). Of course, reference to this body of empirical legal literature to support that proposition ought not be necessary for any attentive observer of the legal landscape. Congressional grants of subject matter jurisdiction to the federal courts are often premised on the assumption that adjudication in the federal forum may affect a different outcome. Although this motivation may sometimes be shaded behind strategic rhetoric, one need not look very far for recent prominent examples where such sentiments have been explicitly articulated, such as in the Terri Schiavo imbroglio and, more importantly, in debates leading up to passage of the Class Action Fairness Act.
372. See Richard A. Nagareda, Aggregation and Its Discontents: Class Settlement Pressure, Class-Wide Arbitration and CAFA, 106 COLUM. L. REV. 1872, 1876 (2006) (observing of CAFA's proponents that "[t]he point of moving such classes into federal court is to subject them to a distinctively federal body of class certification principles, and in so doing, to alter the outcomes of class certification decisions from what they otherwise would have been").
373. Hoffman, Burdens of Jurisdictional Proof, supra note 182, at 470-71 (critiquing the practice of removing cases solely on the basis of the All Writs Act, mistaking it for an independent source of original jurisdiction from which courts can draw whenever they perceive it necessary to "protect" or "effectuate" judicial power);
374. Lonny Sheinkopf Hoffman, Intersections of State and Federal Power: State Judges, Federal Law, and the "Reliance Principle," 81 TUL. L. REV. 283, 288 (2006) ("It is abundantly clear from experience that pleas routinely recited to gain the federal forum may often reveal themselves as naked aggrandizements of federal power.").
375. See supra Part I.C (discussing the Twombly Court's concern over discovery costs and abuses).
376. See supra text accompanying notes 110-115;
377. see also Hazard, supra note 114, at 1685.
378. See Cecil et al., supra note 13, at 863.
379. Cf. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1979 n.6 (2007) (Stevens, J, dissenting) ("Whether and to what extent that 'showing' [in Rule 8(a)(2)] requires allegations of fact will depend on the particulars of the claim.");
380. Susan A. Bandes, Introduction to THE PASSIONS OF LAW 1, 12 (Susan A. Bandes ed., 1999) (arguing that greater attention must be paid to context in thinking about the proper place for emotions in law).
381. See supra notes 28, 126.
382. See, e.g., Watts v. Fla. Int'l Univ., 495 F.3d 1289, 1296 (11th Cir. 2007) (explaining that it would be almost impossible to objectively prove a religious belief when a religious belief is by its very nature a subjective and conclusory statement).
383. See supra text accompanying notes 29-33;
384. see also Phillips v. County of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008) ("[I]f a complaint is vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile." (citing Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002))).
385. See Ides, supra note 98, at 627 ("[Twombly's] holding reflects the basic and long- accepted principle of Substantive Sufficiency, namely, that a complaint must contain sufficient information to outline or adumbrate a claim on which relief can be granted."); supra text accompanying notes 116-121.