A new look at 12(B)(6)?
One of the major differences between criminal and civil cases is that the latter afford several opportunities for trial avoidance. No matter how overwhelming the defendant's guilt, or how weak the state's evidence, the only way to determine the result is to put twelve people in the box and let them sort it all out.
Not so in the civil arena. There are several weapons in the litigants' arsenal which allow a judge, not a jury, to decide the case. To be sure, they're not easily available. One, a motion to dismiss for failure to state a claim under CivR 12(B)(6), can be granted only where the plaintiff has alleged no set of facts which would entitle him to relief under any accepted legal theory.
Or at least that's the way it worked until recently.
Last year I mentioned that one of my readers had pointed me to an 8th District case, Gallo v. Westfield, which had seemingly adopted the test for 12(B)(6) motions laid out in the US Supreme Court's 2007 decision in Bell Atl. v. Twombly. Twombly was an antitrust suit, and before your eyes glaze over, the (very) short version was that the plaintiffs alleged various telephone carriers were acting in concert, based upon the fact that they were engaged in similar, parallel conduct. That required the plaintiffs to show an agreement among the defendants, and the Court held that meant the complaint must do more than allege that: the complaint must contain sufficient facts to create "plausible grounds" for believing that an agreement was actually made, rather than that the defendants were each taking the same actions out of their own self-interest.
While the result in Twombly could have been chalked up to the vagaries of antitrust law, and the Court's unwillingness to allow massive discovery in a huge case on the offchance that there might be something to it, few courts limited it in that fashion. If you run a Shepard's search on Twombly, you'll find it's been cited over 20,000 times, and many courts have pulled from it the language that a complaint must set forth claims which are "plausible, rather than conceivable" to survive a motion under 12(B)(6). The 8th District did just that in Gallo, and last year in Williams v. Ohio Edison and this year in Parsons v. RTA, and the 9th District did the same in Vagas v. Hudson six weeks ago. And lest one think that the Supreme Court's interpretation of the Federal Rules of Civil Procedure is of no consequence outside the Federal courts, Vagas pointedly noted that the Ohio rule was based on the Federal one, and that the pleading requirements under the two are "virtually identical."
Whether Twombly really did establish a higher standard for pleadings is open to debate; the opinion garnered seven justices, and relied heavily upon prior cases and well-recognized authorities. But then last year came Ashcroft v. Iqbal.
Iqbal had been rounded up in the aftermath of 9/11, pled guilty to several charges, and after a term of imprisonment was sent back to his native Pakistan. He sued Attorney General Ashcroft and a bevy of other federal officials, claiming that he was mistreated in prison on account of his race or religion.
The trial court had found the complaint insufficient, the 2nd Circuit reversed that, and the Supreme Court reversed that. It's been accepted for years that in considering 12(B)(6) motions, the judge had to assume that all of the allegations of the complaint were true, but the Court held that rule applied only to factual allegations, not conclusory ones. Thus, Iqbal's claim that the feds had subjected him to harsh conditions solely on account of his race, and without any legitimate penological interest, could be ignored as being conclusory. And the factual allegations had to raise a "plausible inference" of discriminatory intent. That Iqbal alleged he was subjected to beatings was not sufficient; it did not "contain any factual allegation sufficient to plausibly suggest [the defendants'] discriminatory state of mind."
It's certainly a long way from sustaining a complaint unless there is "no conceivable set of facts" to support it, and requiring the pleading to set forth sufficient factual allegations to raise a "plausible inference" that the plaintiff is entitled to relief. In Iqbal's case, one wonders what the allegations necessary to sustain that burden might have been, short of Ashcroft publicly declaring an antipathy toward Arabs or Muslims.
In fact, although one might not feel much sympathy for Iqbal's plight, his situation is typical of complainants in discrimination cases. Oftentimes, an employer's discriminatory intent can only be surmised at the outset of the case, and it's not until discovery that the inference can be supported -- or refuted -- by hard data. Largely because of the impact of Twombly and Iqbal on civil rights cases, both the House and Senate are considering bills to overturn the decisions, most particularly HR 4115, enticingly titled the Open Access to Courts Act.
As with so much in life anymore, where one stands on all this depends largely upon one's political views. If you start from the position that most lawsuits are frivolous, then Twombly and Iqbal are a welcome protection for businesses that can be overwhelmed by the costs of litigation even when they successfully defend against it. Exhibit A would probably be the spinal bone screw debacle in the 1990's, when the plaintiffs' bar initiated mass litigation over the use of spinal bone screw devises in back surgeries. One Federal judge dismissed the lawsuit at the pleading stage based on the implausibility of the claim; another waved it forward, only to eventually dismiss it on summary judgment, after the defendants had spent several tens of millions of dollars defending the claims. On the other hand, as mentioned, many legitimate civil rights cases would probably never get past the pleading stage under the new standards.
Whatever one's views, the issue deserves serious debate. Ohio courts should be wary of citing Twombly and Iqbal without a full appreciation for how substantially they affect current rules practice.
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