No Suit for You! Iqbal's Effect on Potentially Meritorious Cases and the "Compound Allegations" Solution

INTRODUCTION Just follow the ordering procedure and you will be fine.... As you walk in the place, move immediately to your right.... [K]eep the line moving.... [H]old out your money, speak your soup in a loud clear voice, step to the left and receive.... It's very important not to embellish on your order. No extraneous comments. No questions. No compliments. (1) These were the instructions given to Jerry Seinfeld and his friends, in order to buy their lunches from the infamous "Soup Nazi." (2) They subject themselves to these draconian rules because it is the best tasting soup in the city. If the rules are violated, the offender is banished with the scathing admonishment: "No soup for you!" (3) Our civil pleading system is beginning to resemble the Soup Nazi's lunch counter. A plaintiff must file her complaint with an increasing amount of specific factual allegations in order to move on to the pretrial discovery stage. Failing to adhere to these tougher standards will likely result in a granted motion to dismiss for failure to state a claim. No suit for you. This Note attempts to analyze this "brave new world" of pleading by applying the Ashcroft v. Iqbal (4) standard to cases that passed muster under the well-established Conley v. Gibson (5) precedent. Part I covers the history of notice pleading and highlights its intended role as a simplified method of initiating litigation. Part II discusses the recent changes wrought by Bell Atlantic Corp. v. Twombly (6) and Iqbal in creating a new two-pronged "plausibility" standard that also classifies complaint elements as being either factual allegations or legal conclusions. Part III analyzes the pleadings of Swierkiewicz v. Sorema N.A., (7) Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, (8) and Ledbetter v. Goodyear Tire & Rubber Co., (9) which were all sufficiently pleaded under the Conley standard, finding that they likely would never make it to discovery, post-Iqbal. Part IV proposes a potential solution for plaintiffs, by recommending that they draft their complaints using mostly "compound allegations" in order to inoculate their legal conclusions from Iqbal's first prong filter. I. A BRIEF HISTORY OF NOTICE PLEADING Notice pleading arose out of a long history that evolved from the highly technical common-law pleading system inherited from England, (10) and the subsequent code pleading system adopted in about half of the states by the year 1900. (11) Pleadings traditionally fulfilled four major functions: (1) providing notice of the nature of a claim or defense, (2) stating the facts each party believes to exist, (3) narrowing the issues to be litigated, and (4) providing for the means of speedy disposition of sham claims and insubstantial defenses. (12) Fulfilling all of these policy goals led to a cumbersome system where cases were just as often decided on the basis of technicalities and pleading defects as on their merits. (13) The adoption of the Federal Rules of Civil Procedure significantly simplified the pleading requirements. Rule 8 states that a claim for relief requires "a short and plain statement" of the grounds for jurisdiction, "a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought." (14) After Rule 8 was in place, most of the traditional requirements of pleading were delegated to other pretrial events. (15) With this change, "[t]he relevant facts may be determined by discovery. The issues likewise may be narrowed by discovery ... or by 'partial summary judgment' under Rule 56(d). Moreover, cases in which there is no real controversy may be disposed of speedily, finally, and on the merits, by summary judgment." (16) In 1947, Charles E. Clark, the principal drafter of the Rules, defined the change as a simplified code pleading system primarily designed to promote fact pleading, which placed a "great emphasis" on stating the facts of the case. …