Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice

In late May and early June of 2007, the Supreme Court decided two cases construing and applying Federal Rule of Civil Procedure 8(a)(2): Bell Atlantic Corp. v. Twombly and Erickson v. Pardus. Bell Atlantic involved the adequacy of a complaint filed under §1 of the Sherman Act (conspiracy in restraint of trade). The Court ruled that the complaint failed to state a claim on which relief could be granted due to the absence of factual allegations supportive of the charged conspiracy. The dissent accused the majority of adopting a heightened pleading standard; the majority denied that this was the case. Confusion over the import of the Bell Atlantic holding quickly surfaced in lower court opinions and in the blogosphere. In the words of the Second Circuit, "Considerable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic v. Twombly." In Erickson, the Court rejected the judicial imposition of a heightened pleading requirement in a pro se prisoner case. At least at a surface level, Bell Atlantic and Erickson appear to be in some tension with one another, each pulling in opposite directions on what might be perceived as the pleading continuum between notice/simplified and heightened pleading standards. On the other hand, one could read Erickson as an assurance that Bell Atlantic did not alter the pleading playing field and that it represents nothing more than a specialized application of the standard pleading model applied in a particular context. Part of the difficulty in assessing these new opinions arises from the fact that problems of pleading under Rule 8(a)(2) are all too often lumped together under a single rubric such as "notice pleading" or as involving a bright line distinction between a liberal standard of "fair notice" and stricter standard of "heightened pleading," when, in reality, there are a range of pleading issues that do not fit comfortably within such narrow compartments or comparisons. In addition, the jurisprudence of pleading under Rule 8(a)(2) has been complicated by overgeneralizations of what is permitted or not permitted under the rule. Assertions that the rule does not require the pleading of facts, or its converse that the rule does not countenance the pleading of conclusions, are both oft stated and both demonstrably false, at least in terms of the underlying principles of Rule 8(a)(2). Unfortunately, those pleading principles are as often ignored as they are honored. As a partial remedy to the increasingly opaque waters of pleading practice, this article proposes a pleading template premised on three distinct but somewhat overlapping perspectives on pleading: Transactional Sufficiency, Procedural Sufficiency and Substantive Sufficiency. The purpose is to provide a systematic method through which to examine and differentiate among three types of pleading issues and to avoid treating all pleading issues as if they can be resolved under a single standard. The article uses this framework as method through which to examine and critique the Bell Atlantic and Erickson opinions.