July 14, 2014—San Diego, CA—California Coalition for Families and Children today announces filing of its Notice of Appeal to the Ninth Circuit Court of Appeals. The filing follows on the United States District Court for the Southern District of California’s dismissal of the case last Wednesday, July 9, 2014.
California Coalition To Argue District Court Erred in Interpreting F.R.C.P. Rule 8
In the appeal, California Coalition alleges the District Court committed errors in dismissing the case with prejudice for failure to abide by the Rules of Civil Procedure. The District Court’s ruling found that California Coalition’s First Amended Complaint was “unmanageable, argumentative, confusing, and frequently incomprehensible” in violation of Rule of Civil Procedure 8(a) which requires that “A pleading that states a claim for relief must contain . . a short and plain statement of the claim showing that the pleader is entitled to relief.”
“Rule 8 hasn’t changed significantly since the federal rules were adopted in 1938, but the law interpreting it has undergone upheaval. The District Court’s order is an example of the fallout of that turmoil” says Colbern Stuart, President of California Coalition for Families and Children and a plaintiff in the lawsuit.
Stuart explains that the 1938 rules permitted plaintiffs to plead extremely short “bare-bones” notice pleading, and that longer complaints were often tossed out because they were too windy compared to the bare-bones standards. “In finding our complaint was too complex, the district judge applied the ‘bare-bones’ cases” says Stuart.
But in 2007 the United States Supreme Court changed the landscape, deciding the case of Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). In Twombly, the high Court ruled that the old “bare bones” notice standards “will not do.”
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of a cause of action’s elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint’s allegations are true.”
“The Supreme Court’s Twombly decision has created a wake of uncertainty among lawyers and district courts alike. Unfortunately that uncertainty creates opportunities for manipulation. Sadly, we see such behavior in this case” says Stuart.
After Twombly, plaintiff’s counsel risks dismissal of the case if he or she doesn’t plead enough facts. Yet the old, “pre-Twombly” law chastising plaintiffs for pleading more than the bare bones minimums is still on the books even though its no longer relevant.
“Defense counsel and courts wishing to terrorize a plaintiff can use the opposing standards to bookend a plaintiff in a “Goldilocks” dilemma, giving a judge de facto discretion to have it her way or else” says Stuart. “Plead to the old “notice” standard, and defendants complain it’s “too cold,” and the judge can dismiss the case. Plead more detail to the Twombly standard or assert claims the court or defense counsel don’t like to see, defendants naturally complain it’s “too hot,” and judge can dismiss the case.”
Stuart says that what’s ”just right” isn’t defined by any standard since Twombly tipped the issue into disarray. Instead of looking to a clear rule, lawyers and litigants must read a mind to try to get it “just right,” “but only Goldilocks knows what suits her fancy” says Stuart.
“The 1938 Rules prescribed standardized “forms” that plaintiffs could model that were extremely simple–even non-lawyers could model them easily. If the plaintiff successfully modeled the forms, the complaint was per se admissible, and no defendant could argue otherwise” says Stuart.
But Twombly abandoned the presumption of compliance by modeling the forms, leaving it to the judge to decide which complaints are satisfactory and which are not. Today, defense counsel and courts can manipulate that indeterminacy to frustrate efficient pleading, and thwart actions that are otherwise meritorious.
“For defendants, the best complaint is no complaint at all” says Stuart. “That tendency plus an improper Goldilocks discretionary standard enables substantial ability to illegally manipulate the “just right” point to suit Goldilocks’ goals, such as pressuring plaintiffs to dismiss claims a Goldilocks doesn’t want to see” says Stuart.
Until courts of appeals clarify this standard, feckless defense counsel and district judges can ‘ping-pong’ a complaint–today it’s too much, but tomorrow it’s too little. You can’t read my mind? Then go home” says Stuart. “Some judges even give presentations to lawyers about what their “pet peeves” are and how to please them” says Stuart. “It strikes me as a deplorable affront to the legitimacy of our justice system for a judge to debase her office to emphasize the importance of something as trivial as whimsy, but sadly today such puerile behavior among state and even federal judges is not at all unusual.”
Stuart says that rather than more efficient pleading, the result of the Goldilocks standard is exactly the opposite–absorption of district court resources at the pleading stage rather than letting the case proceed to where most cases belong–in discovery heading for summary judgment.
Stuart points to the Order dismissing California Coalition’s complaint as an example of such manipulation. In dismissing the case, the District Court relied on the old “bare-bones” standard cases, which would often throw plaintiffs out of court for pleading too much detail. But that criticism is no longer valid after Twombly in 2007.
In reciting a flotsam of twenty-plus year old pre-Twombly cases and analyzing the complaint under that now-irrelevant law, the District Court ignored the most major polarity reversal in federal court pleading history since the federal rules were adopted in 1938—effectively holding us to the old standard when the current standard requires exactly the opposite” says Stuart. “It’s like the IRS penalizing you for not observing tax laws that were outdated years before you filed your tax forms at issue, but still on the books” says Stuart.
“This is developing into an issue for Congress to step in and take away the discretion that the Supreme Court has invented for district courts” says Stuart. He explains that the purpose of the 1938 rules–enacted by Congress to streamline federal cases–was to relieve the courts and parties from these inefficiencies. But through Twombly and the district courts’ practices of ping-ponging complaints between old and new case law, the courts have re-injected those costly inefficiencies into the district courts, litigants, and law firms. “Congress can and should re-establish firm pleading standards to assure procedural regularity, preserve resources for litigation on the merits, and prevent meritorious claims from falling prey to unscrupulous defendants and indifferent or co-conspiring courts” says Stuart.
Twombly purports to be directed at saving expense, but many complain it has instead enabled defendants to resurrect new burdens and increased expense, indeterminacy, and delay the 1938 rules were designed to eliminate. “Under these new practices we’ve been drug back into a standard that is not a standard–pure judicial discretion” says Stuart.
Dismissal Order Inconsistent With Leading Recent Analysis From Seventh Circuit Judge Richard Posner
As an example of the magnitude of the 2007 shift in pleading standards, Stuart points to a 2013 case which compares pleading burdens under the old and new standards. Stuart says this case directly contradicts the California district court’s reasoning in dismissing California Coalition’s complaint. The 2013 case, Kadamovas v. Stevens, 706 F.3d 843 (7th Cir. 2013) is written by the idiosyncratic, but highly respected, Seventh Circuit Judge Richard Posner. It explains how the pre-2007 pleading standards relied on by Judge Bencivengo in analyzing California Coalition’s complaint are no longer relevant authority. Judge Posner writes:
Since a plaintiff must now show plausibility, complaints are likely to be longer—and legitimately so—than before Twombly and Iqbal. And anyway long before those decisions judges and lawyers had abandoned any effort to keep complaints in federal cases short and plain. Typically complaints are long and complicated. One-hundred page complaints that survive a motion to dismiss are not rarities. The Forms Appendix to the civil rules, with its beautifully brief model complaints, is a fossil remnant of the era of reform that produced the civil rules in 1938. Three quarters of a century later a 28–page complaint pleading seven distinct wrongs is not excessively long. District judges could do more to require that complaints be cut down to size, but it is not apparent what more would be necessary in this case.
Unintelligibility is distinct from length, and often unrelated to it. A one-sentence complaint could be unintelligible.
Length and unintelligibility, as grounds for dismissal of a complaint, need to be distinguished. . . . Often, it is true, “surplusage can and should be ignored,” but “length may make a complaint unintelligible, by scattering and concealing in a morass of irrelevancies the few allegations that matter. But a complaint may be long not because the draftsman is incompetent or is seeking to obfuscate (“serving up a muddle” to the judge, as such complaints are sometimes described), but because it contains a large number of distinct charges. That is the present case.”
“What’s really bizarre is the District Judge cited Kadamova in her opinion even though that court of appeals reversed a district court for committing exactly the same error we assert this judge is committing” says Stuart. “Obviously we’re hoping that our Ninth Circuit panel sees things the same way as Judge Posner.”
Post-Twombly Pleading to Complex Statutes “Unavoidably Complex” says Stuart
Stuart admits to much of the district court’s criticism of the complaint as lengthy, complex, and at times confusing. “This is not a car crash case. These defendants ganged up to quash our movement in concerted effort over six years. We have the facts and law to nail them to the wall, but to do so under these powerful statutes we have no choice but to plead consistent with the statute. I’d like nothing more than to plead to Form 9 of the 1938 rules, but that’s no longer passable. We have asserted and can prove ongoing conspiracy claims, enterprise claims, schemes and artifices to defraud, equal protection classes, and false advertising–each of these core areas is a complex case all alone, and we have at least seven “core” events occurring over a period of years” says Stuart.
“It’s unfortunate these defendants went to such lengths to thwart an effort that started as a kind suggestion, but their bellicose coordinated aggression has made a complex story that is a challenge to follow if you have only dime-store novel attention available, and district judges are very busy people” says Stuart.
Stuart claims that the pleading’s complexity is an unavoidable by-product of the complexity of RICO and the civil rights conspiracy laws. “The statutes our complaint pleads to—RICO and the complex civil rights conspiracy statute section 1985—are notoriously frustrating for judges and lawyers alike” says Stuart. “They’re a maze even in simple cases, and this case is not simple.”
California Coalition asserted dozens of claims against about sixty defendants. “There’s unfortunately no way to adequately plead to these statutes satisfying Twombly’s level of detail without ending up with a complicated complaint” says Stuart. “We attempted to combine common facts and use acronyms to simplify, but this too rankled the court and defense counsel.”
Stuart says he agrees that defense lawyers and the court could reasonably balk at tackling the complaint. “We agree that disclosing this level of detail is far more efficiently done through discovery” says Stuart. “But that’s the current state of the law, and that’s how we must and will proceed.”
Stuart explains that cases such as this are likely an unintended fallout from Twombly, in which the Supreme Court possibly didn’t anticipate the burden it was shifting onto district courts by inventing the “plausibility” standard. The rationale behind Twombly was in part to save defendants facing marginal claims the costs of defending them. Yet by saving private defendants legal costs, the high Court simply shifted those burdens onto an already overburdened judiciary.
“We understand and sympathize that the federal judiciary is overburdened. We wholeheartedly support additional funding for our federal courts. But the response: ‘we don’t have the money to observe your inalienable rights to a jury trial and due process’ is not and has not been a relevant excuse to throw out cases in America since 1789” says Stuart.
Watch Judge Cathy Ann Bencivengo Discuss Her Severe Distaste for Civil Rights Cases Such as California Coalition’s
“This case isn’t going to bust the budget, and the issues California Coalition presents are no less important than the any other case on a federal docket–immigration, parole hearings, business disputes, and all types of crimes. The healthy functioning of our family courts is in our estimation well-deserving of at least as much federal attention as every other case in the courthouse. Family courts are universally recognized to be a failure–except perhaps among a minority of unsavory litigants, partisan ideologies, and their legal and behavioral health professional advocates who profit from such dysfunction. Compared to family health and integrity–whether before or after the sadly ubiquitous life event of divorce–what higher budgeting priority could any state or federal judge have?” Says Stuart.
As part of the dismissal the district court also denied California Coalition’s Motion for Preliminary Injunction Regarding Domestic Violence Restraining Orders, and denied the Superior Court’s second motion for $7,000 in sanctions.
Essentially the judge called the entire case off and sent it ‘upstairs’ to the Court of Appeals. While we’re disappointed that the road to vindication of parents’ and children’s rights will be sidetracked, given the import of these issues and the novelty of the way in which we’ve presented them, an appeal in this case was inevitable. Judge Bencivengo may have been very wise to toss it to the Ninth Circuit at this early stage” says Stuart.
If the case is remanded from the appeal, the district court and all parties will have guidance from the Ninth Circuit decision. “Hopefully the decision on appeal will issue with clear directions–giving everyone a feel for how the Court of Appeals views the issues and guiding conduct of the case thereafter” sasy Stuart.
Given our circuit’s track record of high respect for civil rights, we’re optimistic about receiving a favorable ruling propelling the case into discovery” says Stuart.
California Coalition’s Notice of Appeal indicates several other issues it will raise in the Ninth Circuit court, including an Eleventh Amendment immunity issue, a judicial immunity issue, denial of a discovery motion, denial of California Coalition’s motions for a witness protective order, and rulings on sanctions orders. California Coalition’s appeal brief will be filed in mid-August, 2014, with response and reply briefing in September. Hearing on the appeal will be scheduled soon.