Some lawyers have filed attempted mass suits (earlier here, here, etc. on Mohawk Industries case) claiming that by hiring undocumented workers employers have engaged in “racketeering” for which they should owe money under the RICO law to other workers, above and beyond whatever wages were agreed to at the time or prescribed by statute. It was always a strained theory, and now is said to be encountering tougher going because courts are being more particular about requiring that plaintiffs’ pleadings spell out plausible theories of proximate cause, injury and damages, under the Twombly/Iqbal standard by which the U.S. Supreme Court has toughened early scrutiny of lawsuits. If that’s so, chalk up one more Twiqbal victory for common sense and restraint in litigation. [Workplace Prof, from the Spring]
Eleventh Circuit federal judge Gerald Bard Tjoflat has long been a critic of “shotgun pleadings,” which have been defined as pleadings that make it “virtually impossible to know which allegations of fact are intended to support which claim(s) for relief,” as when every succeeding count indiscriminately incorporates the allegations of all previous counts. He’s back at it in a decision last month [Paylor v. Hartford Fire Insurance, PDF; South Florida Lawyers]:
We add, as a final note, that the attorneys in this case could have saved themselves, their clients, and the courts considerable time, expense, and heartache had they only paused to better identify the issues before diving into discovery. . . .
That such a straightforward dispute metastasized into the years-long discovery sinkhole before us on appeal is just the latest instantiation of the “shotgun pleading” problem.
After describing a vague complaint brought under the Family and Medical Leave Act (FMLA):
Defense attorneys, of course, are not helpless in the face of shotgun pleadings—even though, inexplicably, they often behave as though they are. A defendant served with a shotgun complaint should move the district court to dismiss the complaint pursuant to Rule 12(b)(6)3 or for a more definite statement pursuant to Rule 12(e)4 on the ground that the complaint provides it with insufficient notice to enable it to file an answer.
That not having happened, and the judge not having sua sponte instructed the plaintiff’s lawyer to file a more definite statement of claim,
the District Court tossed the case overboard to a Magistrate Judge for discovery.
At that point it was too late: the discovery goat rodeo had begun.
Result: a voluminous and contentious discovery record much of which bore on points irrelevant to the actual resolution of the case.
The persistence of the shotgun pleading problem is particularly frustrating because the relevant actors all have it within their power to avoid it. Nothing is stopping plaintiffs from refraining from writing shotgun pleadings. Certainly nothing is stopping defense lawyers from asking for a more definite statement; indeed, their clients would be well-served by efforts to resolve, upfront, the specific contours of the dispute, thereby lessening or even eliminating the need for costly discovery. And nothing should stop District Courts from demanding, on their own initiative, that the parties replead the case.
- By convention the business/defense side isn’t fond of jury trial while plaintiff’s side sings its praises, but Louisiana fight might turn that image on its head [Hayride, sequel at TortsProf (measure fails)]
- Generous tort law, modern industrial economy, doing away with principle of limited liability: pick (at most) two of three [Megan McArdle]
- Fallacies about Stella Liebeck McDonald’s hot coffee case go on and on, which means correctives need to keep coming too [Jim Dedman, DRI]
- Interaction of products liability with workplace injury often provides multiple bites at compensation apple, overdue for reform [Michael Krauss]
- Ford Motor is among most recent seeking to pull back the curtain on asbestos bankruptcy shenanigans [Daniel Fisher; related, Washington Examiner] “Page after page he sits on the straw man’s chest, punching him in the face” [David Oliver on expert affidavit in asbestos case]
- Kansas moves to raise med-mal caps as directed by state supreme court, rebuffs business requests for collateral source rule reform [Kansas Medical Society]
- Let’s hope so: “More stringent pleading for class actions?” [Matthew J.B. Lawrence via Andrew Trask, Class Strategist]
The vote was 325 to 91, with Reps. John Conyers (D-Mich.) and Mel Watt (D-N.C.) leading the opposition. Timothy Lee discusses in the Washington Post. While I haven’t tried to get into the details, the general drift looks quite good to me. One major provision requires those filing suits to plead with some specificity what the infringement is; another provides for losing parties to compensate prevailing parties toward the cost of the litigation in more cases; yet another attempts to forestall expensive discovery in cases destined to fail on other grounds. Readers who recall my first book, The Litigation Explosion, will recall that I recommended procedural reform as the most promising way to address the incentives to overlitigiousness in our legal system and in particular identified lack of fee shifting, anything-goes pleadings, and wide-open discovery as among the system’s key deficits. So, yes, developments like this make me feel I was on the right track.
Equal time dept.: Richard Epstein takes a different view.
- How procedural improvements could help curb speculative and abusive lawsuits [Stuart Taylor, Jr., American Spectator, recommending Prof. Donald Elliott’s plan for judicial pre-screening of complaints; Richard Reinsch]
- Proposed revisions to Federal Rules of Civil Procedure would curtail depositions, interrogatories [ABA Journal, more; Wajert] Better use of incentives could reduce costs of discovery [Rebecca Womeldorf, WLF]
- “The ‘e’ in e-mail might as well stand for evidence” — Bloomberg’s Norm Pearlstine at Google Big Tent DC [@jeffjohnroberts]
- Contracting around litigation rules: “Why Is Privatized Procedure So Rare?” [Dave Hoffman]
- Walden v. Fiore: “Cert grant for civ pro buffs” [Ann Althouse; more on constitutional limits on personal jurisdiction from Stephen Sachs via Linda Mullenix, Jotwell via Will Baude]
- California, Wisconsin toughen up lax rules on expert witness admissibility [Bernstein, more] Florida moves to adopt Daubert gatekeeping standard [Maggie Tamburro, Bullseye, William Bissett/Lauren Soble]
- Lawyer disciplinary proceedings make good occasion for noticing that vague notice pleading can trample defendants’ due process interest, but will anyone apply the lesson beyond lawyers? [John Steele, Legal Ethics Forum]
Left-leaning lawprofs like Erwin Chemerinsky and Arthur Miller regularly flog the idea that decisions they disagree with — such as Twombly and Iqbal on pleading, AT&T v. Concepcion and AmEx v. Italian Colors on arbitration, and Vance v. Ball State and Ledbetter v. Goodyear Tire on workplace liability — show the Supreme Court to be biased in favor of business defendants. Richard Epstein rebuts.
The ACLU’s lawsuit over the NSA surveillance program, or Larry Klayman’s? And which has more grandstanding? If you have to ask… [Howard Wasserman, Prawfs]
- Does new Obama directive gut 1996 welfare reform law? [Mickey Kaus (“in 2008, Barack Obama didn’t dare suggest that he wanted to do what he has done today”), Bader]
- Ringling Bros. v. animal rights activists: court throws out champerty claim, allows racketeering claim to proceed [BLT]
- Iqbal, Twombly, and Lance Armstrong [DeadSpin, Howard Wasserman/Prawfs and more]
- Abuse claims: “Retain the statute of limitations” [New Jersey Law Journal editorial] Insurance costs squeeze NYC social services working with kids, elderly [NYDN]
- Court upholds sanctions vs. “staggering chutzpah” copyright lawyer Evan Stone [Paul Alan Levy, Eugene Volokh, earlier here and here]
- Court says board members of NYC apartment co-ops can be sued personally over alleged bias [Reuters]
- “FASB retreats from disastrous litigation disclosure requirement proposal” [Alison Frankel, Reuters via PoL, earlier]
- Government’s hospital care guidelines may be fueling dangerous overuse of antibiotics [White Coat] FDA says fewer drugs are in shortage [Reuters, earlier here, etc.]
- “Post-tort-reform Texas doctor supply” [Ted Frank/PoL and commenters] “Change in Procedures Lets Medical Malpractice [Insurance] Industry Thrive” [PC 360]
- Forcing companies to make politicized disclosures to customers implicates First Amendment [Hans Bader on HHS “must credit ObamaCare” reg]
- Iqbal and Twombly SCOTUS decisions on pleading have helped protect pharmaceutical defendants from flimsily based suits [James Beck, who has changed law firms to Reed Smith]
- How accurate is hospital data coding? Ask thousands of pregnant British men [Nigel Hawkes via Flowing Data]
- Class-action-fed boom in Medicaid dentistry + “let’s put docs in schools” idea = scope for horrific abuse, no matter how it’s financed [Bloomberg via Jesse Walker]
- Suits blaming obstetricians for cerebral palsy rack up $78 million win in Philadelphia, $74 million in California [Legal Intelligencer, Cal Coast News]
- Ninth Circuit: on reflection, let’s not seize control of VA mental health programs [AP, earlier here, etc.]
- NYC: “Lawsuit Blames Apple’s Glass Doors for Plaintiff’s Broken Nose” [Lowering the Bar, CBS New York]
- Some who pushed enhanced punishment for Dharun Ravi may now be doubting they really want it [Scott Greenfield, earlier here, etc.]
- NYT editorial on FMLA state immunity is as bad as anyone had a right to expect [Whelan]
- “Pleading, Discovery, and the Federal Rules: Exploring the Foundations of Modern Procedure” [Martin Redish, FedSoc “Engage”] Summary of important ’09 Redish book Wholesale Justice calling into question constitutionality of class actions [Trask]
- Would trial-by-DVD be so very wrong? [James Grimmelmann, Prawfs]
- Contested memorabilia: lawsuits filed over estate of gay rights pioneer Franklin Kameny [MetroWeekly]
- Feds’ “distracted driving” guidance could impair usefulness of car navigation systems [Cunningham/CNet, earlier]