Dodson, Scott, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors? (Oxford: Oxford Univ. Press, 2013), ISBN 978-0-19-983250-7 (hardcover), xii + 243 pp. (incl. index), $85.00
When we think of the “sexier” Supreme Court rulings, we think of Obamacare, of same-sex marriage, of civil rights—the type that are routinely inflicted on first-year Con Law students. What does not come rushing to mind is civil procedure, and yet, it has its landmarks, too: Erie R.R. Co. v. Tompkins, World Wide Volkswagen, Burger King Corp. v. Rudzewicz, to name but a few. Prof. Dodson would like you to know that two other civil procedure landmarks radically altered the federal practice landscape a few years back--for the worse--and has written a monograph on it. So the argument goes, the effect of these two rulings is to throw out the old “notice pleading” regime established by the Federal Rules and to replace it with New Pleading, which is effectively “fact pleading.” Another effect is to make it substantially easier to dismiss meritorious complaints due to information asymmetry, with concomitant adverse effects on the federal litigant’s access to justice. Although the reader may question the practicality of his proposal for a form of "New Discovery," and part of the work is not strictly necessary to his argument, the depth of the analysis and the valuable history of pleading practice he provides make this a trenchant and engaging treatise worth having.
A little background will help frame Prof. Dodson’s argument. From 1938 to 2007, Fed. R. Civ. P. 8 established the familiar “notice pleading” regime in federal court. In order to pass muster under Rule 8, a complaint needed only to provide sufficient notice to the defendant of the nature of the claim against him. When the Supreme Court addressed the notice pleading standard in Conley v. Gibson, 355 U.S. 41 (1957), it held that dismissal pursuant to Rule 12 (b) (6) for failure to state a claim should not be granted “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.” This “Old Pleading” under Rule 8 reflected a permissive-access policy to the federal courts, as well as a desire to open the doors to discovery. Only rarely should a complaint wither and die at the pleadings stage, and then only for legal insufficiency. Pretrial disposition of a case was more appropriate on summary judgment under Rule 56, after discovery.
Over the intervening decades, there was an explosion of federal litigation, accompanied by calls to rein in rampant discovery, which was overwhelming the resources of parties and the court. Eventually, a system of case management developed, culminating in the Rule 26 (f) discovery plan, and a much closer system of monitoring that helped streamline what had been a potentially overwhelming ordeal. Further discovery limits were imposed in 2000 and 2006.
Then the Supreme Court issued its decision in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), holding that a complaint can be dismissed under Rule 12 (b) (6) for failing to plead facts sufficient to establish the “plausibility” of the claim. Throughout the succeeding two years, there was much academic speculation that Twombly was limited, for policy reasons, to large class-action antitrust cases like it. After all, this was exactly the sort of case which had so bothered commentators since the 1970s—it had the potential to rack up huge litigation costs on the strength of rather vague facts. However, the Court followed up with Ashcroft v. Iqbal, 556 U.S. 662 (2009), a comparatively narrow religious and national-origin discrimination case, which underlined that the plausibility standard established in Twombly was generally applicable. Thus was “New Pleading” born.
New Pleading, explains Dodson, is essentially fact pleading. No longer is a 12 (b) (6) motion limited to the legal sufficiency of the complaint, as established under Rule 8 and Conley. Instead, a Court now must decide the factual sufficiency of the complaint, which raises a serious problem in information-asymmetry cases—i.e., those in which the facts necessary to survive a New Pleading motion to dismiss are in the sole possession of the defendant, such as intent evidence. Dodson’s empirical data comparing motions filed before Twombly and after Iqbal shows that there has been an overall increase in dismissal rates as a function of motions filed, as well as a corresponding increase in fact-based dismissal rates, especially where the plaintiff is unrepresented. Although the Court’s purpose appears to have been to screen non-meritorious cases, Dodson argues that the actual effect has been to screen out meritorious complaints where there is an information asymmetry between plaintiff and defendant, and that this disproportionately impacts civil rights claims. Also, whatever cost savings might have been realized through the screening effect are likely offset by the increase in dismissal filings.
Ultimately, Dodson wants a return to Old Pleading, but acknowledges that, for various political and administrative reasons, this is extremely unlikely. So, instead, Dodson proposes minimizing the adverse impact of Twombly and Iqbal on information-asymmetry cases by instituting a system of what he calls New Discovery. This presuit discovery procedure, used sparingly, would permit plaintiffs to engage in limited discovery designed to determine whether or not they have a claim that can survive the Twombly “plausibility” standard. Gamesmanship would be minimized by tolling the applicable limitations period during the pendency of New Discovery.
As a former practitioner, I found myself wondering how practical New Discovery would be, given the hardball tactics of seasoned litigators. Dodson himself realizes that his solution will be attacked as “naïve” and that his proposals are imperfect ones. Gamesmanship will still occur, and implementing a tolling provision could be “tricky.” I worry that this fix he has devised for dealing with the mess caused by Twombly and Iqbal will be easily frustrated by those who fall back into “old habits.”
Although I’m not entirely convinced by his proposals, I think his analysis is sound, and he makes a compelling case for the pernicious effects of New Pleading on access to federal courts. New Pleading in the Twenty-First Century will primarily appeal to civil procedure and federal jurisdiction faculty, but the style is straightforward enough so that federal practitioners won’t be deterred by the turgidity of prose common to academic writing. This work is certainly an important contribution to the continuing debate on New Pleading, and well worth adding to your collection.
 Conley v. Gibson, 355 U.S. 41, 45-46 (1957), as quoted in Dodson, supra, at 27.
 Dodson, supra, at 199.
 Id., at 206.
 Id., at 207.
 Id., at 199.