LEGISLATE TO OVERTURN BELL ATLANTIC V. TWOMBLY
- by: MARIA KORTRIGHT
- recipient: CONGRESS OF THE UNITED STATES OF AMERICA
UNTIL 2007 A COMPLAINT IN COURT NEEDED ONLY TO SPECIFY FACTS GENERALLY, SUCH THAT WOULD GIVE NOTICE TO THE DEFENDANTS OF THE NATURE OF THE CLAIM AND THE GENERAL ALLEGATIONS OF THE WRONGDOING. IN 2007 THE SUPREME COURT ISSUED AN OPINION (BELL ATLANTIC V. TWOMBLY - THAT NOW REQUIRES THAT AT THE TIME OF FILING YOU MUST STATE SPECIFIC FACTS - OFTENTIMES UNKNOWN - THAT WILL ALLOW THE COMPLAINT TO GO FORWARD TO DISCOVERY ONLY IF THE COURT FINDS THE COMPLAINT PLAUSIBLE. THE CASE HAS BEEN INTERPRETED IN A WAY THAT PLACES AN IMPOSSIBLE BURDEN ON A PLAINTIFF WHEN HE OR SHE HAS NOT MADE DISCOVERY IN THE CASE YET.
IT IS OBVIOUS THAT MANY TIMES THE WRONGDOER(S) IS(ARE) THE HOLDER(S) OF THE INFORMATION THAT WILL ALLOW YOU TO PROVE YOUR CASE.
THE STANDARD NOW REQUIRED MAY BE USED AS IF IT WERE A LICENSE TO WRONGDOERS CREATING A CATCH 22 - YOU NEED TO DO DISCOVERY BUT YOU WILL NEVER GET TO DISCOVERY BECAUSE YOUR CASE WILL BE DISMISSED IF YOU CANNOT STATE WHAT EACH WRONGDOER DID WITH GREATER SPECIFICITY.
WE WANT CONGRESS TO LEGISLATE TO MAKE SURE THAT A COMPLAINT IN COURT WILL NOT BE DISMISSED BASED ON A BURDEN THAT IS IMPOSSIBLE TO MEET AT THE FIRST STAGE AND THAT CAN ONLY BE REQUIRED AFTER DISCOVERY IN THE CASE.
THE CURRENT INTEPRETATION OF RULE 8 MAKES IT IMPOSSIBLE TO REACH THE DISCOVERY STAGE AND DISCOVER ACTS OF CONSPIRACY WHEN ALL CO-CONSPIRATORS ARE SILENT AND NO ONE IS WILLING TO TELL THE VICTIM OF THE ACTS OF THE CONSPIRACY. WE FEEL THIS IS WRONG AND IT WILL BECOME ALMOST A LICENSE TO COMMITT WRONGDOING. CONGRESS SHOULD LEGISLATE TO TELL THE COURTS THAT RULE 8 (WHICH GOVERNS THE PLEADINGS) DOES NOT REQUIRE PLAUSIBILITY BUT ONLY SUFFICIENT NOTICE.
DEFENDANTS ARE NOT AND HAVE NEVER BEEN, REQUIRED TO SPECIFY THE FACTS THAT ARE THE BASIS OF THEIR DEFENSE. THIS RULE WILL BENEFIT THE MOST POWERFUL AND THROW OUT OF COURT THE WEAKEST OF THE PARTIES. THIS IS PARADISE FOR DEFENDANTS.
In 2007 the Supreme Court of the United States issued the opinion of Bell Atlantic v. Twombly. The opinion has changed the burden of the Plaintiff at the pleading stage and now requires that a Plaintiff spell out enough facts for the court to understand that the claim is plausible. The standard is incomprehensible and subjective. Meanwhile, the defendants do not have any burden to plead specific facts that will allow the court to understand their defense is plausible.
Most times, the Plaintiff knows general facts that were sufficient under notice pleading but needs the discovery process to obtain specific facts which the wrongdoer(s) withhold. The opinion of the Supreme Court will allow wrongdoers to get away with illegal acts because the burden placed on the plaintiff (before the discovery process) is impossible to meet. The scenario will brew many unjust situations and will cause for the citizens to lose their access to the federal court system.
We need legislation that will re-institute the prior decisions where FRCP 8 is clear in that only general notice and a plain and short statement is sufficient for access to the court as it always was before 2007.
It is our understanding that the decision has impacted the justice system in a negative way , that there were more than 5,000 cases stemming from the Twombly case in the first year after the opinion was published. We also think this will cause an increase in the appeals that stem from the first stage dismissal based on Twombly and find the standard very subjective and almost impossible to apply.
We greatly appreciate your time for reading this letter and hope that you will do justice in the matter.
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