“After TwIqbal, defendants don’t have to take scattershot pleading lying down”

by Walter Olson on July 12, 2011

The Supreme Court’s admirable Twombly and Iqbal precedents give a federal district court the means to turn back a shotgun lawsuit against a horde of undifferentiated defendants [McFarland v. APP Pharmaceuticals LLC, slip op., 2011 WL 2413797 (W.D. Wash. June 13, 2011) via Beck, Drug and Device Law]. Quoting the court:

[A]lleging that 93 defendants all manufactured, distributed, and/or sold all of the products that caused all of plaintiff’s injuries is not plausible. In addition, plaintiff’s allegations are internally inconsistent. The complaint alleges that “each” of the defendants manufactured the heparin that caused her injuries, but also alleges that each of the 93 defendants “separately manufactured, marketed, distributed, wholesaled, and/or sold” heparin. The inconsistencies between those allegations, which are not pled in the alternative, further highlight the implausibility of plaintiff’s allegations.

James Beck writes, “Basically, the plaintiffs in McFarland didn’t want to do even the most basic spadework of identifying the correct defendants before bringing suit, so they threw in the kitchen sink in the hope that the defendants would end up having to spend the time and effort to figure things out.” After Twombly and Iqbal, that’s become a less effective legal tactic — one of many reasons to resist the Litigation Lobby drive to get Congress to overturn the two pleading decisions.

{ 2 comments }

1 Max Kennerly 07.13.11 at 8:26 pm

How is she supposed to “identify the correct defendant” before filing suit?

Do you think she can politely ask the defendants for copies of their agreements to determine their exact relationship? Can she inspect the factory and quiz the employees about their W-2s?

The court essentially held that she’s suppose to take a wild guess and sue companies at random. I fail to see the social benefit in that approach.

2 ohwilleke 07.14.11 at 2:18 pm

The FRCP expressly authorizes inconsistent pleading in Rule 8(e)(2). The suggestion that the pleading is defective because it is not formally phrased in the alternative is grammatical nitpicking.

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