Should a Federal Lawsuit be able to be dismissed before any factual discovery occurs? (Ashcrosft v Iqbal)Somervell County Salon-Glen Rose, Rainbow, Nemo, Glass....Texas


 

Should a Federal Lawsuit be able to be dismissed before any factual discovery occurs? (Ashcrosft v Iqbal)
 


31 July 2009 at 7:47:08 AM
salon

from FindLaw

...Twombly and Iqbal make it harder for plaintiffs who might have meritorious cases, but need access to defense witnesses and files, to have their cases heard.

Twombly and Iqbal were interpretations of Rule 8 of the Federal Rules of Civil Procedure. Both decisions have been criticized (including by me) as failing to honor the text of the Rule and past precedent interpreting it. That is now water under the bridge, however. As Judge Sotomayor said in answering questions by Wisconsin Senator Herb Kohl during her hearing before the Judiciary Committee, these cases are themselves now precedents entitled to respect by the lower courts and the Supreme Court itself.

Congress, by contrast, can change the rule, and Pennsylvania Senator Arlen Specter has proposed legislation to do just that. Dubbed the "Notice Pleading Restoration Act of 2009," Senator Specter's bill would change the standard for the dismissal of a federal complaint back to the approach set forth by the Supreme Court in the 1957 case of Conley v. Gibson. Under that case, "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."


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