cle materials - New York Law School Law Review

TRIAL BY JURY OR TRIAL BY
MOTION? SUMMARY
JUDGMENT, IQBAL, AND
EMPLOYMENT DISCRIMINATION
The Interplay of Pleading Standards &
Summary Judgment
New York Law School
April 23, 2012 – 8:15am-4:45pm
CLE MATERIALS
1
Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can
Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65
(Spring 2010)…………………………………………………………………….………………..2
Elizabeth M. Schneider, The Dangers of Summary Judgment: Gender and Federal Civil
Litigation……………………………………………………………………………………..…100
1
Both articles are used with permission from the authors.
Top of Form
FOR EDUCATIONAL USE ONLY
14 Lewis & Clark L. Rev. 65
Lewis & Clark Law Review
Spring 2010
Symposium Pondering Iqbal
*65 FRONT LOADING AND HEAVY LIFTING: HOW PRE-DISMISSAL DISCOVERY
CAN ADDRESS THE DETRIMENTAL EFFECT OF IQBAL ON CIVIL RIGHTS CASES
Suzette M. Malveaux [FNa1]
Copyright (c) 2010 Lewis & Clark Law School; Suzette M. Malveaux
Although the Federal Rules of Civil Procedure are trans-substantive, they have a greater
detrimental effect on certain substantive claims. In particular, the Supreme Court's recent
interpretation of Rule 8(a)(2)'s pleading requirement and Rule 12(b)(6)'s dismissal criteria--in
Bell Atlantic v. Twombly and Ashcroft v. Iqbal--sets forth a plausibility pleading standard which
makes it more difficult for potentially meritorious civil rights claims alleging intentional
discrimination to survive dismissal. Such claims are more vulnerable to dismissal because:
plaintiffs alleging intentional discrimination often plead facts consistent with both legal and
illegal conduct; discriminatory intent is often difficult, if not impossible, to unearth pre-discovery
because of informational inequities between the parties; and the plausibility standard's subjective
nature fails to provide sufficient guidance to courts ruling on dismissal motions. This increased
risk of dismissal threatens to undermine civil rights enforcement, compromise court access, and
incentivize unethical conduct.
In response to this risk, courts are empowered and encouraged to utilize narrow, targeted, predismissal discovery to determine plausibility at the pleading stage (“plausibility discovery”) so
that the trans-substantive application of the Rules does not work an injustice against civil rights
and other cases involving informational inequities. Courts *66 should consider permitting some
limited discovery towards the front of the litigation (front loading) for the purpose of
determining a case's viability (heavy lifting). Courts already use early, targeted, pre-merits
discovery to resolve threshold issues such as class certification, qualified immunity and
jurisdiction. These models, while imperfect, illustrate how courts are willing and able to order
clearly defined, narrow discovery to successfully resolve various preliminary litigation matters.
Similarly, plausibility discovery is authorized and justified on policy grounds. This Article
concludes with the types of arguments parties are likely to make post-Iqbal and a roadmap for
2
how courts can order plausibility discovery while equitably balancing the parties' competing
interests.
I.
INTRODUCTION..........................................................................................
67
II.
THE EVOLUTION OF THE FEDERAL PLEADING
STANDARD....................................................
70
A. Conley v. Gibson..................................................................................
70
B. Leatherman v. Tarrant County.....................................................................
71
C. Swierkiewicz v. Sorema N.A.......................................................................
72
D. Bell Atlantic Corp. v. Twombly...................................................................
73
E. Erickson v. Pardus................................................................................
77
F. Ashcroft v. Iqbal.................................................................................
78
PROBLEMS WITH THE PLAUSIBILITY PLEADING
STANDARD..................................................
80
A. Civil Actions in General.........................................................................
81
1. The Court Should Analyze the Complaint as a Whole.............................................
81
2. Determining Conclusoriness Remains Elusive and
Problematic...................................
82
3. In Practice the Court Applied a Probability Rather than a Plausibility
Standard............
83
4. The Court Usurped the Jury's Fact-Finding Role.................................................
84
B. Civil Rights Cases in Particular................................................................
85
1. How Civil Rights Claims Are More Vulnerable to Dismissal Under the Plausibility
Standard..
87
a. Plaintiffs Alleging Intentional Discrimination Often Plead Facts that Are Consistent
with Both Legal and Illegal
Behavior...........................................................................................................................
.........................
87
III
.
3
IV
.
b. Discriminatory Intent Is Often Difficult, and Sometimes Impossible, to Unearth
PreDiscovery.........................................................................................................................
................................
89
i. Discrimination Is More Subtle and Institutional................................................
89
ii. Evidence Is Often in the Exclusive Possession of the Defendant..............................
91
c. The Plausibility Standard's Subjective Nature Fails to Provide Courts Sufficient
Guidance When Ruling on 12(b)(6)
Motions............................................................................................................................
........................
92
2. Why the Increased Risk of Dismissal Should Be Addressed.......................................
10
1
a. Civil Rights Enforcement Is Undermined..........................................................
10
1
b. Court Access Is Compromised......................................................................
10
3
c. Unethical Conduct Is Incentivized...............................................................
10
6
THE PROMISE OF PRE-MERITS
DISCOVERY................................................................
10
6
A. Available Models for Plausibility Discovery....................................................
10
8
1. Class Certification Discovery....................................................................
10
9
2. Qualified Immunity Discovery.....................................................................
11
2
3. Jurisdictional Discovery.........................................................................
11
7
a. Subject Matter Jurisdiction......................................................................
11
7
4
b. Personal Jurisdiction.............................................................................
12
0
B. Plausibility Discovery as a Model for the Future..............................................
12
3
1. Courts Have the Authority to Order Plausibility Discovery....................................
12
3
a. Plausibility Discovery Is in Compliance With the Discovery
Rules............................
12
3
b. Plausibility Discovery Does Not Require a Rule 12(b)(6) Conversion to Rule 56
Summary
Judgment..........................................................................................................................
...............................
12
4
2. Plausibility Discovery Is Justified on Policy Grounds.........................................
12
6
C. Plausibility Discovery in Practice..............................................................
13
2
1. Establish that Informational Inequity Exists...................................................
13
3
2. Defer Ruling on the Motion to Dismiss...........................................................
13
4
3. Order Plausibility Discovery.....................................................................
13
5
a. The Scope of Plausibility Discovery.............................................................
13
5
b. The Form of Plausibility Discovery..............................................................
13
7
4. Grant Plaintiff Leave to Amend the Complaint...................................................
13
8
5. Rule on the Motion to Dismiss....................................................................
14
0
5
V.
CONCLUSION............................................................................................
14
1
*67 I. INTRODUCTION
While the Federal Rules of Civil Procedure are trans-substantive, [FN1] their impact is not. The
impact of the Rules on the outcome of civil litigation depends on the substantive claim at issue.
Specifically, the confluence of Rule 8(a)(2)'s pleading requirements and Rule 12(b)(6)'s
dismissal criteria--as recently interpreted by the Supreme Court in Bell Atlantic Corp. v.
Twombly [FN2] and Ashcroft v. Iqbal [FN3]--has a distinct detrimental impact on civil rights
[FN4] cases alleging intentional discrimination. Application of these Rules, under the Court's
new plausibility pleading standard, is more outcome determinative for civil rights cases because
of *68 the informational inequity that exists between the parties and the evidentiary hurdles that
exist for such claims. [FN5]
Civil rights cases alleging intentional discrimination face a number of evidentiary hurdles
specific to the underlying cause of action. First, factual allegations lend themselves to theories
consistent with both legal and illegal conduct. At the pleading stage--where alternative theories
of liability and mixed motives are often pled--a court may dismiss the case as implausible, a
premature conclusion prior to the discovery process in many cases. Second, plaintiffs alleging
intentional discrimination are at a distinct evidentiary disadvantage pre-discovery because of the
difficulty in uncovering facts sufficient to demonstrate illegal motive. Unearthing discrimination
has become more difficult over time because of the more subtle and institutional forms it takes.
Moreover, such evidence is often in the exclusive possession of the defendant, thereby creating
an informational inequity between the parties. Third, the plausibility standard's highly subjective
nature fails to provide courts sufficient guidance when ruling on Rule 12(b)(6) motions, thereby
increasing the risk of courts' relying on extrajudicial factors when determining plausibility. For
example, skepticism over whether intentional discrimination continues to exist--a particularly
acute controversy in an alleged “post-racial” Obama society--may impermissibly come into play
at this early stage of the litigation. All of these factors make potentially meritorious civil rights
claims more vulnerable to premature dismissal under the recent pleading paradigm.
By making the pleading standard more rigorous, the Supreme Court sought to spare litigants
from costly and complex discovery in Twombly's antitrust class action, and to spare national
security government officials from distracting and time consuming discovery in Iqbal. In the face
of expensive and time consuming merits discovery, the Supreme Court should be commended
for its efforts to explore ways in which cases can be evaluated more efficiently, without a gross
expenditure of resources and time.
6
But the question now is not whether discovery will be diminished or even eliminated under
certain circumstances, following Twombly and Iqbal, but what will be discovered and when. The
Supreme Court may have necessitated the trial courts' shifting discovery to earlier in the
litigation process, and increasing discovery's gatekeeping function. More specifically, the
plausibility pleading standard may require that parties take some limited, preliminary discovery
at the pleading stage (“plausibility discovery”) to overcome the informational inequity that exists
between parties for civil rights and other substantive claims.
*69 Although courts should continue to guard against “fishing expeditions,” they should also be
open, upon receipt of a Rule 12(b)(6) motion, to allowing plaintiffs some initial discovery
focused on those discrete facts necessary to show a plausible claim. This way, discovery would
be loaded towards the front end of the lawsuit, and would be doing heavy lifting of a different
kind--determining the lawsuit's viability rather than its underlying merits. In keeping with an
efficient and just trans-substantive process, discovery must evolve to meet the challenges of
contemporary civil rights litigation.
Using targeted, pre-merits discovery to resolve threshold issues is not uncommon. Courts are
already front-loading discovery and demanding that it do heavy lifting to determine class
certification, qualified immunity, and jurisdiction. [FN6] Although imperfect, these models
demonstrate that courts are willing and able to use discovery in this manner. Post-Twombly and
Iqbal, front loading and heavy lifting may also be the discovery approach needed at the pleading
stage of civil rights and other cases vulnerable to informational inequities.
The utility of pre-merits discovery at the pleading stage is an important option for courts to
consider. While this option has been mentioned as a potential post-Twombly solution, among
others, [FN7] there has been little examination of how early, targeted discovery can help level
the playing field for those claims more vulnerable to the plausibility pleading standard. [FN8]
This Article attempts to fill that void.
This Article is divided into five parts. Part II sets forth the evolution of the federal pleading
standard, with particular emphasis on civil rights cases. Part III critiques the Supreme Court's
new pleading standard, as set forth in Iqbal. This Part describes the problems of the plausibility
*70 pleading standard for civil actions in general and civil rights cases in particular. Part IV
explores the utility of targeted, early discovery at the pleading stage, relying on other pre-merits
discovery models. This Part sets forth arguments parties are likely to make in cases involving
informational inequities post-Iqbal and a roadmap for how courts can equitably respond to such
competing interests. Finally, the Article concludes that trial courts can and should consider
narrow, targeted discovery to determine plausibility at the pleading stage so that the transsubstantive application of the Rules do not work an injustice against civil rights and other cases
involving informational inequities.
7
II. THE EVOLUTION OF THE FEDERAL PLEADING STANDARD
A. Conley v. Gibson
For over half a century, “notice pleading” largely defined the pleading system in the federal
courts. The Supreme Court, in Conley v. Gibson--a civil rights class action brought by AfricanAmerican railway employees against their union for its alleged failure to fairly represent their
interests on racially discriminatory grounds [FN9]--set forth the standard upon which the courts
have historically relied. [FN10] In holding the complaint sufficient, the Court stated, “we follow,
of course, the accepted rule that 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.” [FN11] In response to the defendants' argument that the
complaint should be dismissed for failing to support its general allegations of discrimination with
specific facts, the Court unequivocally rejected this rigorous standard in favor of a notice
pleading paradigm:
The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant
to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require
is “a short and plain statement of the claim” that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests. [FN12]
The Court justified the notice standard on several grounds. First, given the parties' opportunity to
more precisely define the bases for their claims and defenses and to narrow the facts and issues
through liberal *71 discovery and other pretrial procedures, pleadings need not do more. [FN13]
Second, Rule 8 requires the pleadings to be construed so as to do “substantial justice,” [FN14]
which the Court concluded was clearly done here. Third, the Rules eschew gamesmanship as a
basis for dismissal. [FN15] Finally, the purpose of pleading, under the Rules, is to enable the
case to be decided on the merits. [FN16] Anchored in these principles, the notice pleading
paradigm set forth in Conley v. Gibson continued for over fifty years.
B. Leatherman v. Tarrant County
The Court has consistently rebuked challenges to notice pleading by the lower courts in civil
rights cases. [FN17] For example, in Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit --a civil rights case brought by homeowners alleging violations of the Fourth
Amendment against police officers and municipalities--Justice Rehnquist held for a unanimous
court that a more rigorous pleading standard for civil rights cases alleging municipal liability
under § 1983 was impermissible. [FN18] Defendants contended that, in the Fifth Circuit, the
factual specificity required for a complaint hinged on the complexity of the underlying
substantive claim. [FN19] But the Supreme Court concluded that the appellate court's pleading
8
standard was a heightened one, “impossible to square” with the liberal notice pleading standard
set forth in Rule 8(a)(2). [FN20] Referring to Rule 8(a)(2)'s requirement that a complaint include
only “a short and plain statement of the claim showing that the pleader is entitled to relief,” the
Court made clear that in Conley, “we said in effect that the Rule meant what it said.” [FN21] If
courts wanted to raise the pleadings bar, they would have to do so by amending Rule 9, whose
particularized pleading requirement applies solely to claims of fraud and mistake; judicial
interpretation would not suffice. [FN22] Absent any amendment to Rule 9, [FN23] courts would
have to continue to rely on procedural devices like *72 discovery and summary judgment to
distinguish between meritless and meritorious claims. [FN24]
C. Swierkiewicz v. Sorema N.A.
Swierkiewicz v. Sorema N.A., [FN25] is also illustrative of the Court's insistence on notice
pleading in civil rights cases. In Swierkiewicz, a Hungarian employee alleged intentional
employment discrimination on the basis of national origin and age, in violation of Title VII of
the Civil Rights Act of 1964 and the Age Discrimination in Employment Act (ADEA)
respectively. [FN26] Justice Thomas held, for a unanimous Court, that an employment
discrimination complaint did not need to contain specific facts establishing a prima facie case of
discrimination under the framework established by McDonnell Douglas Corp. v. Green, [FN27]
which is required by employees who seek to prove intentional discrimination without direct
evidence. [FN28] The courts below held that Swierkiewicz's complaint failed to adequately
allege circumstances that supported an inference of discrimination--an element of the prima facie
showing. [FN29] In response to a circuit split on the matter, [FN30] the Court concluded that the
McDonnell Douglas framework was an evidentiary standard, inapplicable at the pleadings stage.
[FN31] The Court stated that an employment discrimination complaint--like all complaints--need
only meet Rule 8's criteria of containing a short and plain statement of the claim, showing the
plaintiff is entitled to relief. [FN32]
In reaching its conclusion, the Court relied on a holistic understanding of the role of pleadings in
the lifecycle of a lawsuit. [FN33] The Court understood pleadings to play a limited screening
role, [FN34] relying *73 instead on liberal discovery and summary judgment to flesh out
frivolous claims. [FN35] The Court recognized Rule 8(a)'s simplified notice pleading standard as
part of a larger system of rules --i.e. the Federal Rules of Civil Procedure--that function together
to usher a claim from filing to resolution. [FN36] Again, the Court decried pleadings being used
as a form of gamesmanship that deprived claims from being heard on the merits. [FN37]
The Court concluded that Swierkiewicz's complaint sufficed, practical considerations
notwithstanding. [FN38] More specifically, despite defendant's contentions that Swierkiewicz's
allegations were “conclusory,” and would only burden courts and encourage frivolous litigation
by future disgruntled employees, the Court refused to impose a heightened pleading standard
through judicial interpretation. [FN39] Finally, the Court underscored the applicability of Rule
9
8(a)'s generous notice pleading standard to all claims, no matter what their likelihood of success.
[FN40]
D. Bell Atlantic Corp. v. Twombly
The notice pleading paradigm, anchored in Conley v. Gibson, however, was called into question
following the Court's seminal opinion, Bell Atlantic Corp. v. Twombly. [FN41] Twombly
involved an antitrust putative class action brought by local telephone and or high speed internet
service subscribers against regional telephone service monopolies. [FN42] Plaintiffs *74 alleged
that over a seven-year period, defendants conspired to restrain trade in violation of § 1 of the
Sherman Antitrust Act [FN43] by: 1) engaging in parallel conduct in their respective service
areas to inhibit the growth of upstarts; and 2) agreeing not to compete with one another. [FN44]
The district court dismissed the complaint on the grounds that plaintiffs alleged parallel business
conduct, which by itself did not state a claim under § 1 of the Sherman Act. [FN45] The Second
Circuit reversed, concluding that the lower court failed to properly apply Conley's standard that
“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.” [FN46] The Second Circuit criticized the lower court for requiring “plus factors” in
addition to parallel conduct to allege conspiracy. [FN47]
In a seven to two decision written by Justice Souter, [FN48] the Supreme Court reversed, [FN49]
setting forth a new pleading paradigm. Twombly maintained Conley's standard that a plaintiff
must give fair notice of the nature of his claim and the “grounds upon which it rests,” [FN50]
and need not set out in detail the facts upon which he bases his claim. [FN51] However,
Twombly concluded that while factual details were not necessary, “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 the elements of a cause of action will not do.” [FN52] Twombly
*75 established that “[f]actual allegations must be enough to raise a right to relief above the
speculative level;” [FN53] they must show a “plausibility of ‘entitle[ment] to relief,”’ not just a
possibility. [FN54] Finally, after over a half of a century, the Court simply retired Conley's “no
set of facts” standard. [FN55]
Applying the plausibility standard to the § 1 conspiracy claim, the Court concluded that the
complaint must have “enough factual matter (taken as true) to suggest that an agreement was
made.” [FN56] The Court rejected the notion that the plausibility model was akin to a probability
one, stating that the former “simply calls for enough fact to raise a reasonable expectation that
discovery will reveal evidence of illegal agreement.” [FN57] The complaint had to contain facts
“suggestive enough to render a § 1 conspiracy plausible.” [FN58] Therefore, an allegation of
parallel conduct and a “bare assertion of conspiracy” or “conclusory allegation of agreement”
failed to provide sufficient facts to show illegal conduct. [FN59] The allegations of parallel
conduct had to occur in a specific context that would raise a suggestion of an illicit agreement.
10
[FN60] Where the parallel conduct could “just as well be independent action,” the complaint
falls short. [FN61] The complaint would need “further factual enhancement” to cross the line
from possibility to plausibility. [FN62]
The Court justified its plausibility pleadings standard on several grounds. First, the Court
anchored its plausibility requirement in the language of Rule 8 itself. In order for a complaint to
actually “show” a plaintiff is entitled to relief pursuant to Rule 8(a)(2), its allegations have to be
plausible, not merely possible. [FN63] Second, the Court cited the *76 “practical significance” of
a plausibility standard, alluding to its potential to save time, [FN64] reduce significant costs
related to discovery, [FN65] diminish federal court backlog, and prevent settlement abuse.
[FN66] The Court rejected the notion that “careful case management” could instead address such
concerns. [FN67] Third, to the extent that the plausibility standard conflicted with Conley's “no
set of facts” benchmark, the latter should not be taken literally [FN68] but instead discarded. To
do otherwise would permit a “wholly conclusory” statement of a claim to survive dismissal
whenever there was the possibility that a plaintiff might later uncover some undisclosed facts
that would support liability. [FN69] The Court reasoned that Conley's “no set of facts” rule could
not be the baseline for determining pleading adequacy. [FN70] Finally, the Court contended that
its new plausibility standard did not “heighten[]” the pleading standard or expand the scope of
Rule 9's particularity requirement, a measure that “can only be accomplished ‘by the process of
amending the Federal Rules, and not by judicial interpretation.”’ [FN71]
Applying the new pleadings paradigm, [FN72] the Court concluded that neither of plaintiffs'
antitrust conspiracy theories contained facts suggestive of illegal conduct under § 1. [FN73]
Failing to “nudge[] their claims *77 across the line from conceivable to plausible,” plaintiffs'
complaint warranted dismissal. [FN74]
E. Erickson v. Pardus
Not surprisingly, Twombly ushered in a wave of confusion and conflict among judges, lawyers,
and commentators about its scope and meaning. But even as people tried to understand
Twombly's application and its implications, two weeks later, the Court issued another pleading
decision, Erickson v. Pardus, [FN75] that added to the confusion.
In Erickson--a case involving a prisoner who filed a pro se complaint under § 1983 against
prison medical officials for alleged indifference to his serious medical needs, in violation of the
Eighth and Fourteenth Amendments--the Court held that plaintiff's complaint was sufficient to
overcome a 12(b)(6) dismissal. [FN76] The magistrate, district, and appellate courts all held that
the plaintiff's complaint set forth “only conclusory allegations” that failed to adequately allege
that the prison doctor's conduct--depriving the prisoner hepatitis C treatment--caused him
“substantial harm.” [FN77] Because “[t]he holding departs in so stark a manner from the
11
pleading standard mandated by the Federal Rules of Civil Procedure,” the Supreme Court
granted certiorari. [FN78]
In this per curiam opinion, the Court reversed, concluding that the lower courts had erred.
[FN79] Without any mention of the plausibility pleading standard it had expostulated just
fourteen days prior, the Court concluded that the plaintiff had satisfied the Court's “liberal
pleading standards set forth by Rule 8(a)(2).” [FN80] It explained that Rule 8 required only “a
short and plain statement of the claim showing that the pleader is entitled to relief”; that
“[s]pecific facts are not necessary; the statement need only ‘give the defendant fair notice of
what the . . . claim is and the grounds upon which it rests;”’ and that “a judge must accept as true
all of the factual allegations contained in the complaint.” [FN81] Applying these traditional
principles to the complaint at issue, and in reliance on *78 Twombly, Swierkiewicz, and Conley,
the Court found the complaint sufficed. [FN82]
However, the Court took particular exception with the lower court's “departure” from Rule
8(a)(2)'s liberal pleading standard because of the plaintiff's pro se status, noting that his filings
should be “liberally construed” and his complaint, “however inartfully pleaded, must be held to
less stringent standards than formal pleadings drafted by lawyers.” [FN83] While Erickson
embraced the notice pleading language that characterized its opinions pre-Twombly, Erickson's
unique attributes--a per curiam opinion based on a pro se complaint--made its applicability
unknown. Not until Ashcroft v. Iqbal [FN84] did it become clear how widespread the plausibility
pleading paradigm would extend.
F. Ashcroft v. Iqbal
In May 2009, Justice Kennedy authored Ashcroft v. Iqbal, a five to four opinion that made clear
the applicability of the new plausibility standard to all civil actions, including civil rights cases.
[FN85] Recognizing the trans-substantive nature of the Rules--as set forth in Rule 1 [FN86]--the
Court clarified that Twombly was based on the Court's interpretation and application of Rule 8,
an analysis which would apply to pleadings outside of the antitrust context. [FN87] Having
resolved this initial matter, the Court used Iqbal to flesh out the pleading standard enunciated in
Twombly, this time in the context of a civil rights case brought against high ranking government
officials seeking qualified immunity.
Immediately following the September 11th terrorist attack, Javaid Iqbal and a number of Arab
Muslim men suspected of involvement in the attack were detained and held on various charges at
a New York detention center. [FN88] Iqbal and others designated as persons “of high interest”
by the FBI and the Department of Justice were segregated in a maximum security unit, where
they were kept on lockdown twenty-three hours a day. [FN89] Iqbal--a Pakistani who ultimately
pled guilty to criminal charges, served his sentence and was returned to Pakistan--alleged that he
was mistreated by federal officials while in the special maximum security unit, in violation of his
12
constitutional rights. [FN90] In particular, Iqbal *79 contended that former Attorney General
John Ashcroft and FBI Director Robert Mueller designated Iqbal a person “of high interest” and
subjected him to harsh conditions of confinement on account of his race, religion, or national
origin, in violation of the First and Fifth Amendments. [FN91] His complaint alleged that these
constitutional violations were a matter of policy, one for which Ashcroft and Mueller were
personally responsible. [FN92]
Ashcroft and Mueller sought qualified immunity and filed a motion to dismiss the complaint on
the grounds that it failed to allege that they were personally involved in clearly established
unconstitutional conduct. Based on Conley's “no set of facts” language, the district court denied
the motion. [FN93] In the interim, Twombly was decided, giving the Second Circuit an
opportunity to discern whether the complaint needed to be enhanced with factual allegations so
as to render Iqbal's claim “plausible.” The Second Circuit concluded no such enhancement was
necessary and that the complaint sufficed under Twombly. [FN94] The Supreme Court, however,
disagreed.
Iqbal gave the Court the opportunity to clarify Twombly, and to demonstrate how the new
plausibility paradigm should be understood and applied. Building on Twombly, the Court
explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” [FN95] Plausibility fell somewhere between possibility and probability. [FN96] Using
this standard, the Court conducted a two step analysis to determine whether Iqbal properly stated
a claim against defendants.
First, the Court explained that “legal conclusions” or “mere conclusory” allegations did not enjoy
the presumption of truth afforded factual allegations. [FN97] As such, the Court culled out those
allegations in Iqbal's complaint that it deemed conclusory and extracted them from the analysis.
[FN98]
Second, the Court explained that “only a complaint that states a plausible claim for relief
survives a motion to dismiss.” [FN99] This determination is “context-specific,” requiring the
district court “to draw on its judicial experience and common sense” to come to an answer.
[FN100] At the second step, the Court assumed the veracity of the remaining factual allegations
and concluded that they failed to plausibly show Iqbal was *80 entitled to relief. [FN101] While
the Court concluded that the factual allegations, taken as true, were consistent with intentional
illegal discrimination, [FN102] the Court found that they failed to establish a plausible claim for
relief because of “more likely explanations” for defendants' conduct. [FN103] More specifically,
the Court considered the alternative innocuous explanation that Iqbal was arrested and detained
as part of a neutral anti-terrorism policy that had a disparate impact on Arab Muslim men
because the September 11th attack was orchestrated and led by a group of Arab Muslim men.
[FN104] The Court concluded, “As between that ‘obvious alternative explanation’ for the arrests
. . . and the purposeful, invidious discrimination respondent [Iqbal] asks us to infer,
13
discrimination is not a plausible conclusion.” [FN105] However, even if the facts suggested that
Iqbal's arrest could be plausibly explained by intentional discrimination, they did not suggest that
there was a policy that could do the same. [FN106] Finding no factual allegation in the complaint
that plausibly suggested a discriminatory motive by Ashcroft and Mueller, the Court concluded
that Iqbal's complaint failed to satisfy Rule 8's requirements. [FN107]
Following Iqbal, courts, practitioners, and scholars have been grappling with its impact. After
over half a century, the pleadings paradigm has undergone a transformation that may
fundamentally change the way in which civil actions, in general, and civil rights cases, in
particular, are initiated and litigated. The desirability of this transformation is a normative
question addressed in Part III below.
III. PROBLEMS WITH THE PLAUSIBILITY PLEADING STANDARD
Iqbal has ushered in a new pleading paradigm, problematic in a number of ways.
*81 A. Civil Actions in General
1. The Court Should Analyze the Complaint as a Whole
As Iqbal's first step in analyzing the sufficiency of a complaint, the Court excised from its
plausibility analysis all conclusory allegations and legal conclusions on the grounds that they are
not entitled to the presumption of truth. While it is true that only factual allegations are entitled
to this presumption, [FN108] this does not necessitate the Court's eliminating from consideration
all other allegations when determining whether a complaint sufficiently states a claim. Legal
conclusions create a context in which factual allegations are asserted. [FN109] Without this
foundational structure, factual allegations are devoid of their legal significance--they fail to be
anchored in a claim for which a plaintiff seeks relief under Rule 8. A complaint is a composite of
allegations--some legal and some factual--that build on and interrelate with each other to tell the
plaintiff's story of why she believes she is entitled to relief under the law. By culling out those
allegations that are conclusory and considering only those that are factual when determining the
plausibility of a claim, the complaint is largely stripped of its meaning.
Applying this initial step to Iqbal's complaint, it is not surprising the complaint failed to
plausibly suggest a policy of intentional discrimination. By the time the Court gutted the
complaint of all allegations it deemed “conclusory,” the factual allegations left standing could
hardly be expected to support a plausible claim for relief. [FN110] As aptly noted in Justice
Souter's dissent, when determining plausibility, the Court should analyze the complaint as a
whole rather than analyze allegations in isolation. [FN111] So long as the complaint as a whole
14
puts the *82 defendant on notice--as Justice Souter concluded it did here [FN112]--the complaint
has carried out its proper purpose. If indeed “fair notice” is the objective of pleadings--as stated
by the Court for over half a century now--a complaint that in its entirety provides such notice
should survive 12(b)(6) dismissal. To require otherwise would put too great a burden on
plaintiff's counsel and encourage long, repetitive, unwieldy complaints--contrary to Rule 8's
“short and plain” mandate.
2. Determining Conclusoriness Remains Elusive and Problematic
Iqbal states that it is not an allegation's “extravagantly fanciful” or “unrealistic or nonsensical”
nature that disentitles the allegation to the presumption of truth; it is only the allegation's
conclusoriness. [FN113] This emphasis is problematic. The emphasis on the conclusory nature of
an allegation requires courts to distinguish between conclusory and non-conclusory allegations in
a principled and uniform way. Such an exercise has proven difficult, [FN114] as demonstrated
by Iqbal. [FN115]
Assuming that courts can accurately identify those allegations that are conclusory, the devaluing
of such allegations adversely impacts claimants who cannot allege more, at the pleading stage,
due to the nature of the underlying substantive claim. At this early juncture in the litigation, legal
conclusions may be the best a plaintiff can offer when the requisite proof of plausibility is in the
exclusive possession of the defendant and can only be revealed via discovery. Setting aside
conclusory allegations during the plausibility determination unfairly *83 burdens those claims in
which an informational inequity exists between the parties.
3. In Practice the Court Applied a Probability Rather than a PlausibilityStandard
Iqbal's second step in analyzing the sufficiency of a complaint--determining plausibility--looked
more like a probability test. Although the Court asserts that the “plausibility standard is not akin
to a ‘probability requirement,”’ [FN116] the Court's conduct belies this assertion. In considering
those factual allegations entitled to the presumption of truth, [FN117] Iqbal concedes that they
are consistent with purposeful discrimination by defendants. [FN118] The Court finds that the
arrest and detention of thousands of Arab Muslim men as part of the FBI's post-September 11th
terrorism investigation could mean that Ashcroft and Mueller intentionally designated such
detainees as persons “of high interest” on the grounds of race, religion, or national origin.
[FN119] Notwithstanding this, the Court surmises that there may be a more benign explanation
for the same conduct: Ashcroft and Mueller instituted a legitimate anti-terrorism policy that
happened to have a disparate impact on Arab Muslim men because of the connection between
the September 11th attack and its perpetrators. [FN120] In comparing the plaintiff's intentional
discrimination thesis to the more innocent one, the Court finds plaintiff's explanation wanting
and therefore not plausible. [FN121] Although the Court denies that the plausibility standard is a
probability one, the Court openly compares plaintiff's theory of the case to other theories, judges
them relative to one another, and rejects plaintiff's as implausible because of the unlikelihood of
15
its occurrence. [FN122] Justice Souter--the author of Twombly--identifies the Court's conflation
*84 of plausibility and probability in Iqbal as a “fundamental misunderstanding of the enquiry
that Twombly demands:” [FN123]
Twombly does not require a court at the motion-to-dismiss stage to consider whether the factual
allegations are probably true. We made it clear, on the contrary, that a court must take the
allegations as true, no matter how skeptical the court may be. . . . The sole exception to this rule
lies with allegations that are sufficiently fantastic to defy reality as we know it: claims about little
green men, or the plaintiff's recent trip to Pluto, or experiences in time travel. That is not what
we have here. [FN124]
Rather than clarifying what plausibility means in relation to possibility post-Twombly, [FN125]
Iqbal's analysis suggests that probability is applicable.
4. The Court Usurped the Jury's Fact-Finding Role
Iqbal's weighing the relative merits of alternative liability theories, on the basis of facts alleged at
the pleadings stage, is an improper usurpation of the jury's fact-finding role. Even at the
summary judgment stage [FN126]--where not only pleadings, but discovery, disclosures, and
affidavits are under consideration--a court may not block the jury from determining liability, by
granting summary judgment, because the court believes one theory is more likely than another.
Instead, a court is limited to determining whether there is any genuine issue of material fact that
would entitle the jury to consider the legal question at issue. [FN127] Certainly, at the pleadings
stage, one would not expect a court to be able to prejudge the merits of a case any more than at
the summary judgment stage. [FN128] Indeed, at the pleadings stage, a court would be in far less
a position to judge the relative merits of alternative case theories when nothing but allegations-factual and legal--are available to tell the story. Concluding that one theory is more likely to have
occurred than another arguably constitutes judicial fact-finding which is prohibited at the
pleadings stage. [FN129]
*85 In sum, Iqbal poses a number of problems for civil actions in general.
B. Civil Rights Cases in Particular
Iqbal has ushered in a new pleading paradigm that threatens the viability of potentially
meritorious civil rights claims. In particular, Iqbal has set into motion a wave of concern over the
future viability of civil rights claims because of the adverse impact the plausibility standard has
on such claims. [FN130]
Central to modern federal civil procedure is the tenet that the Rules are trans-substantive; that is,
they apply across the board to all civil actions regardless of the underlying substantive law.
[FN131] Rules 8(a)(2) and 12(b)(6) are no exception. They are applicable unless carved out by
16
statute [FN132] or Rule 9. [FN133] Although the desirability of trans-substantivity has been
questioned by courts [FN134] and commentators, [FN135] it nevertheless remains a fundamental
principle in modern federal procedure.
*86 Despite the trans-substantive application of the Rules, they impact cases differently based on
the substantive area of law. [FN136] This effect is not unexpected in light of the unique features
inherent in certain types of claims. As a result of the new pleading standard, several courts have
recently dismissed civil rights claims that would have admittedly survived Conley's notice
pleading standard. [FN137] The Supreme Court's recent interpretation of Rules 8(a)(2) and
12(b)(6) adversely impacts civil rights claims because of the following evidentiary hurdles.
*87 1. How Civil Rights Claims Are More Vulnerable to Dismissal Under thePlausibility
Standard
a. Plaintiffs Alleging Intentional Discrimination Often Plead Factsthat Are Consistent with Both
Legal and Illegal Behavior
First, the plausibility standard works an unfair disadvantage in civil rights cases because
plaintiffs alleging intentional discrimination, pre-discovery, can often only plead facts that are
consistent with both legal and illegal behavior. The nature of the facts available at this early
juncture will often suggest alternative theories of the case, [FN138] and under the new standard a
plaintiff must allege facts “plausibly suggesting (not merely consistent with)” illegal conduct.
[FN139] As in Iqbal, a complaint may set forth factual allegations that, taken as true, are
consistent with both invidious discrimination [FN140] and a legitimate purpose, such as a policy
to combat terrorism. [FN141] The same was true in Twombly. The Court concluded that
defendants' parallel conduct could be the result of an illegal agreement to restrain competition or
the logical reaction to market conditions. [FN142] However, because the plaintiff failed to show
that it was more likely to be illegal activity rather than legitimate business action, the complaint
was dismissed. This result is not unexpected under the new pleading standard. For many
situations, an individual's conduct may suggest an illicit motive or a purely innocuous one-indistinguishable from each other prior to discovery.
Civil rights claims are also particularly vulnerable to dismissal because of the nature of the
alleged violation. Intentional discrimination claims require a plaintiff to prove that defendant's
adverse action was taken because of plaintiff's membership in a protected class. She must prove
that the defendant was motivated by factors such as race, gender, or age rather than a permissible
rationale. Factual allegations in civil rights cases are more likely to be subject to multiple
interpretations. This places civil rights cases at greater risk of dismissal. [FN143]
For example, an employer who denies a female worker a promotion might do so because she is a
woman (a violation of Title VII of the Civil Rights Act of 1964) or because she is rude (a
legitimate employer *88 prerogative). The factual allegation of the denial is consistent with two
possibilities, neither of which can be confirmed at the pleading stage. Or the employer may have
17
denied the employee because she was both a woman and rude, in which case the plaintiff can
allege a mixed motive. Or the employer may have denied her for a different reason altogether-her older age--which would constitute a separate claim under the Age Discrimination in
Employment Act. By discounting as implausible factual allegations because they are equally
consistent with legal and illegal behavior, the new pleading standard penalizes plaintiffs who
seek relief for invidious discrimination because they do not have “further factual enhancement”
[FN144] to cross the line from possible to plausible based on the judge's “judicial experience and
common sense.” [FN145]
By contrast, suppose a plaintiff sues for negligence because defendant struck him with a car.
Defendant's conduct (hitting the plaintiff with a car) is not consistent with legal behavior. It is
not the type of occurrence that one would expect to happen if the defendant was acting with the
proper standard of care. While the defendant may ultimately be found not liable--otherwise there
would be no need for litigation--his alleged conduct alone suggests a breach in the law. Thus, a
plaintiff filing a negligence claim may allege only that defendant's car struck the plaintiff on a
certain date at a certain place, and that this conduct was “negligent.” Forms 11 and 12 make this
clear. [FN146] For a negligence claim, plaintiff's factual allegations more easily nudge the court
from believing the claim was possible to plausible. [FN147] Here, the Iqbal standard does not
necessarily have a negative impact on the plaintiff's claim. [FN148]
However, for those doctrinal claims where factual allegations facially suggest alternative
theories, [FN149] plaintiffs have a harder time overcoming *89 the plausibility threshold.
Although this disadvantage is not exclusive to civil rights claims--the antitrust allegations in
Twombly are a case in point--such claims are especially vulnerable in a climate in which the
continued existence of discrimination is being called into question. [FN150]
In sum, because complaints alleging intentional discrimination will often set forth factual
allegations consistent with illegal and legal conduct, such complaints are more vulnerable to
dismissal under the plausibility standard.
b. Discriminatory Intent Is Often Difficult, and SometimesImpossible, to Unearth Pre-Discovery
Second, it is more difficult for complaints alleging civil rights violations to overcome the
plausibility standard because evidence of illegal motive (intent) or institutional practices is often
difficult to unearth absent discovery. [FN151]
i. Discrimination Is More Subtle and Institutional
Excavating evidence of discrimination is difficult because of the often subtle and institutional
forms it takes. [FN152] For example, pervasive institutional changes in the contemporary
workforce--such as work structure, evaluative models, and relational dynamics--can facilitate
bias in employer decision-making that more easily eludes detection and disproportionately works
to the detriment of minorities and women. [FN153] *90 And bias in the workplace today is far
18
less overt and transparent, as some courts have recognized. [FN154] Instead, it takes on greater
subtlety in the form of stereotypes and unconscious bias, [FN155] a phenomenon that turns out
to be more pervasive than some initially contemplated. [FN156]
*91 ii. Evidence Is Often in the Exclusive Possession of the Defendant
Moreover, unearthing discrimination is difficult because evidence of a defendant's intent or
practices is often in its exclusive possession. [FN157] For example, in Ledbetter v. Goodyear
Tire & Rubber Co., [FN158] the plaintiff Lilly Ledbetter brought suit against her employer
Goodyear well after the statute of limitations had expired because she was not aware of her
employer's initial discriminatory decision to pay her less based on gender. [FN159] Like so many
employees, [FN160] she was not privy to the fact that she *92 had been systematically underpaid
[FN161]--an inequity that did not escape Congress. [FN162] This is an example of an
informational inequity.
Another example of informational inequity is where a plaintiff is beaten up by a police officer
but unable to identify the individual--a fact clearly within the defendant's possession in a § 1983
claim. An informational inequity also exists where an African-American couple is steered by a
real estate agent to predominantly Black neighborhoods but unable to know the agent's racial
intent--a fact clearly within the defendant's possession in a Fair Housing Act claim. In sum, in
numerous ways, civil rights claimants [FN163] suffer informational inequities that unfairly
undermine their ability to meet the plausibility standard. [FN164]
c. The Plausibility Standard's Subjective Nature Fails to ProvideCourts Sufficient Guidance
When Ruling on 12(b)(6) Motions
Where a judge has only his “judicial experience and common sense” [FN165] to guide him when
determining the plausibility of an intentional discrimination claim pre-discovery, there is the risk
of unpredictability, lack of uniformity, and confusion. [FN166] Based on the differences among
*93 judges, one complaint may be dismissed while another survives, solely because of the way a
judge applies his “judicial experience and common sense.” [FN167] Such subjectivity can result
in multiple outcomes in cases in which there are comparable pleadings. Plaintiffs and their
counsel are left to wonder what factual allegations suffice when pleading intentional
discrimination. [FN168] Without a clear standard, plaintiffs are unable to accurately assess the
sufficient quantum or type of facts necessary to overcome a 12(b)(6) dismissal.
The problem is not that a judge may be sympathetic or unsympathetic to discrimination claims,
but that his personal perception, rather than the law, threatens to become outcome determinative.
[FN169] For example, studies indicate that there are significant differences in perception among
racial groups over the existence and pervasiveness of race discrimination. [FN170] With the
election of the first African-American President of the United States, Barack Obama, there has
been a particularly acute focus on whether American society has become “post-*94 racial.”
[FN171] Following this historic election, many Americans have concluded that intentional race
19
discrimination is no longer a significant issue. [FN172] In a “post-racial” society, judges, like
many Americans, may operate from the presumption that discrimination--at least racial
discrimination--is a thing of the past. [FN173] This perception may contribute to a judge's
concluding that intentional discrimination is implausible, especially in light of other alternative
explanations available: “Those who see discrimination as a pervasive and unjust aspect of our
society are far more likely to interpret ambiguous events as the product of discrimination, while
those who believe, or want to believe, that discrimination has receded in importance will
attribute observed inequalities to forces other than discrimination.” [FN174]
*95 Some courts have been and continue to be hostile to civil rights claims, perceiving them to
be largely frivolous. [FN175] Indeed, federal district courts regularly imposed a heightened
pleading requirement for civil rights claims, in part, because of this perception. [FN176]
Consequently, the Supreme Court has had to reign in this practice on several occasions. [FN177]
Recent studies indicate that judicial hostility to Title VII claims in particular continues. For
example, a recent study by Professor Kevin M. Clermont and Dean Stewart J. Schwab, analyzing
federal civil cases from 1970 to 2006, indicates that plaintiffs challenging employment
discrimination do not fare well in federal court. [FN178] In particular, “employment
discrimination cases constitute one of the least successful categories of cases at the district court
level, in that plaintiffs win a very small percentage of their actions and fare worse than in almost
any other category of civil case.” [FN179] Moreover, the plaintiff is more likely to lose on
appeal. [FN180] Clermont and Schwab have identified an “anti-plaintiff effect” that they
attribute to negative judicial attitudes toward employment cases. [FN181] Judicial resistance to
civil rights claims in general has been noted by various scholars. [FN182]
*96 Judges may differ over the extent to which discrimination is a plausible explanation for a
defendant's alleged conduct. Without a sufficient legal standard in which to anchor the
plausibility determination, judges are vulnerable to the criticism that their decisions are based on
factors outside of the law. According to legal realists, despite their best efforts, judges'
backgrounds and attitudes already play a significant role in case outcomes. [FN183]
*97 In assessing the sufficiency of the “judicial experience and common sense” standard for
determining plausibility, empirical studies on the impact of excessive subjectivity and intuition
on decision-making are instructive. Such studies suggest that, where possible, it is important for
a standard not to be overly subjective or reliant on intuition.
Sociological and psychological literature explains how excessive subjectivity increases the risk
of biased decision-making in the workplace. [FN184] For example, in the employment context,
employers who rely on excessively subjective criteria in hiring, promotions, and other
employment actions run the risk of violating the federal civil rights laws because of the
propensity of bias to surface. [FN185] Federal courts have long recognized this risk. [FN186]
The Supreme Court itself, in Watson v. Fort Worth *98 Bank & Trust, did the same, noting that
20
“an employer's undisciplined system of subjective decisionmaking” does not guarantee “that the
particular supervisors to whom this discretion is delegated always act without discriminatory
intent.” [FN187]
While mindful of its dangers, it is important to recognize that subjective criteria are not per se
impermissible or illegitimate. [FN188] They are often essential tools for evaluating applicants
and employees, [FN189] especially for supervisory and leadership positions. [FN190] Courts,
including the Supreme Court, have recognized that subjectivity can play an important evaluative
and screening function, thereby warranting judicial deference *99 to the employer's decisionmaking. [FN191] It is when such subjectivity is excessive and uncabined that its utility starts to
wane and the risk of bias, inter alia, surfaces. [FN192]
Scientific studies also explain how intuition can increase the risk of inaccurate and impartial
decision-making. They have found that decisions on the basis of intuition [FN193]--while
beneficial and accurate under some circumstances [FN194]--may also “lead to severe and
systemic errors” [FN195] and biased decision-making. [FN196] In an empirical study of the
judicial reasoning and decision-making of 252 trial judges, along with other studies, the authors
concluded:
[I]ntuition is also the likely pathway by which undesirable influences, like the race, gender, or
attractiveness of parties, affect the legal system. Today, the overwhelming majority of judges in
America explicitly reject the idea that these factors should influence litigants' treatment in court,
but even the most egalitarian among us may harbor invidious mental associations. [FN197]
*100 The study found that automatic, intuitive judgment is more likely to occur than active
deliberation where trial judges labor under heavy docket loads and serious time pressures.
[FN198] The authors noted that such intuitive determinations were unlikely to be corrected by
appellate courts whose oversight is rare and limited, [FN199] and whose standard of review is
deferential to discretionary calls. [FN200] While recognizing the prevalence of judges' efforts at
making deliberative decisions, the study encourages the legal system to take an active role in
helping judges do this: [FN201]
We believe that most judges attempt to “reach their decisions utilizing facts, evidence, and
highly constrained legal criteria, while putting aside personal biases, attitudes, emotions, and
other individuating factors.” Despite their best efforts, however, judges, like everyone else, have
two cognitive systems for making judgments--the intuitive and the deliberative--and the intuitive
system appears to have a powerful effect on judges' decision making. The intuitive approach
might work well in some cases, but it can lead to erroneous and unjust outcomes in others. The
justice system should take what steps it can to increase the likelihood that judges will decide
cases in a predominantly deliberative, rather than predominantly intuitive way. [FN202]
Recognizing that judges may interpret what is plausible through a lens informed by background
and experience is not to disparage their character or suggest ill will on their part. [FN203] To the
21
extent that a standard *101 is excessively subjective or promotes intuitive decision-making,
judges must guard against relying on extrajudicial factors when ruling on legal matters. The legal
system can help by establishing a more objective and clear standard for determining the legal
sufficiency of a complaint.
In sum, the new pleadings standard has made civil rights claims more vulnerable to dismissal.
The next Part addresses why this must be fixed.
2. Why the Increased Risk of Dismissal Should Be Addressed
The new plausibility pleading standard's adverse impact on civil rights claims should be
addressed for many reasons.
a. Civil Rights Enforcement Is Undermined
First, the new plausibility pleadings standard compromises civil rights enforcement and
deterrence objectives. [FN204] Potentially meritorious civil rights claims will be prevented from
being heard in federal court, a forum plaintiffs have historically relied upon for relief. [FN205]
Meanwhile, those who discriminate will enjoy a windfall. For example, in Ocasio-Hernandez v.
Fortuno-Burset, the district court dismissed a case brought by fourteen former maintenance and
domestic employees of the Puerto Rico Governor's mansion against the Governor and others
under § 1983 for alleged violation of due process, equal protection, and freedom of political
expression rights under the Constitution. [FN206] With unusual candor, the court explained how
the plausibility pleading standard would undermine enforcement and chill political
discrimination cases:
The court notes that its present ruling, although draconianly harsh to say the least, is mandated
by the recent Iqbal decision construing Rules 8(a)(2) and 12(b)(6). The original complaint . . .
filed before Iqbal was decided by the Supreme Court, as well as the Amended Complaint . . .
clearly met the pre-Iqbal pleading standard under Rule 8. As a matter of fact, counsel for
defendants, experienced beyond cavil in political discrimination litigation, did not file a 12(b)(6)
motion to dismiss the original complaint because the *102 same was properly pleaded under the
then existing, pre-Iqbal standard. . . .
As evidenced by this opinion, even highly experienced counsel will henceforth find it extremely
difficult, if not impossible, to plead a section 1983 political discrimination suit without “smoking
gun” evidence. In the past, a plaintiff could file a complaint such as that in this case, and through
discovery obtain the direct and/or circumstantial evidence needed to sustain the First
Amendment allegations. If the evidence was lacking, a case would then be summarily disposed
of. This no longer being the case, counsel in political discrimination cases will now be forced to
file suit in Commonwealth court, where Iqbal does not apply and post-complaint discovery is,
thus, available. Counsel will also likely only raise local law claims to avoid removal to federal
22
court where Iqbal will sound the death knell. Certainly, such a chilling effect was not intended by
Congress when it enacted Section 1983. [FN207]
Moreover, pursuant to the legislative scheme of various civil rights statutes, plaintiffs are
empowered to act as private attorneys general to enforce the law. [FN208] Where the legislative
and executive branches have been unwilling or unable to enforce civil rights, the judicial system
has played a vital role, which will be compromised. [FN209]
A preliminary study of civil rights cases post-Twombly suggests that the more rigorous pleading
standard has already resulted in a greater *103 dismissal rate for such cases. [FN210] Examples
are starting to appear across the country. [FN211]
b. Court Access Is Compromised
Second, the plausibility pleadings standard undermines one of the most fundamental rights upon
which our legal system is based--the right to be heard. [FN212] The Supreme Court has long
recognized the primacy of this value, as expressed in the Constitution: “The due process clause
requires that every man shall have the protection of his day in court, and the benefit of the
general law, a law which hears before it condemns . . . .” [FN213] Depriving someone access to
the court system *104 undermines fundamental notions of fairness and due process that are the
cornerstones of the legal system. As recognized by the Supreme Court at the turn of the
nineteenth century in Marbury v. Madison, “[t]he very essence of civil liberty certainly consists
in the right of every individual to claim the protection of the laws, whenever he receives an
injury.” [FN214]
Moreover, denying plaintiffs access to the courts undermines the well-established preference that
cases be decided on the merits rather than on procedural grounds. [FN215] Whenever possible,
the merits should not be subordinated to procedural “technicalities.” [FN216] Some contend that
the more rigorous pleading standard is justified as a screening mechanism to keep out frivolous
litigation that blackmails defendants into unwarranted settlements. [FN217] However, empirical
evidence suggests that this concern for over-frivolous civil rights claims may be overblown.
[FN218]
Not only does the Iqbal-Twombly pleading standard threaten to deny plaintiffs with certain types
of claims access to the courts, it has a particularly harmful effect on disenfranchised groups, such
as minorities, women, and others, because of the disparate reliance on the federal courts'
enforcement of civil rights claims by such groups.
Using an asymmetrical-critical-race-theoretical lens [FN219] through which to analyze
Twombly, Professor Roy L. Brooks concludes that the new *105 pleading standard as applied to
civil rights cases constitutes racial subordination. [FN220] He argues that although the pleading
standard is facially neutral, [FN221] its detrimental application to civil rights claims [FN222]
makes it particularly problematic for disenfranchised groups. More specifically, because African-
23
Americans are more likely than “insiders” [FN223] to bring civil rights claims, [FN224] and
have historically leaned more heavily on such claims and the federal court system in which to
advocate for racial equality, [FN225] the plausibility standard takes a special toll on this group.
Twombly's application, under Professor Brooks's critical race model, rises (or sinks) to the level
of racial subordination [FN226] and therefore results in what he describes as a “racial status
harm.” [FN227]
Consequently, the plausibility pleading standard's adverse impact on certain types of claims and
claimants may lead individuals to call into question the institutional legitimacy of the legal
system. “Shutting legitimate claims and blameless plaintiffs out of the legal process creates
disaffection and disillusionment with the legal process . . . .” [FN228] Democracy is
compromised:
[N]o democratic political theory can ignore the sense of injustice that smolders in the psyche of
the victim of injustice. If democracy means anything morally, it signifies that the lives of all
citizens *106 matter, and that their sense of their rights must prevail. Everyone deserves a
hearing at the very least . . . . [FN229]
Where victims of justice are selectively excluded and denied the laws' benefits, they may view
the legal system as illegitimate and unworthy of respect. Consequently, they may resort to
extrajudicial remedies or even illegal behavior. [FN230]
c. Unethical Conduct Is Incentivized
Third, the plausibility standard puts plaintiffs in an untenable position where their claims involve
informational inequities. The more rigorous pleading standard creates a perverse incentive for
plaintiffs to embellish their complaints with facts lacking evidentiary support, which would
violate Rule 11(b)(3). [FN231] Plaintiffs will be concerned that their complaints will be
dismissed if they do not furnish facts sufficient to nudge their claim from conceivable to
plausible. Often, the only way to get such facts is through discovery, but the court will not permit
discovery unless the plaintiffs provide the very facts they cannot discover. Plaintiffs are trapped
in a catch-22 situation. Faced with this circular reasoning, plaintiffs may be tempted to allege
facts lacking evidentiary support in order to overcome this hurdle. To overcome this
vulnerability, plaintiffs may need to specifically identify that their factual contentions are likely
to have evidentiary support after a reasonable opportunity for further investigation or discovery,
as required by Rule 11(b)(3). [FN232]
In sum, the plausibility pleading standard's impact on civil rights claims has a number of serious
ramifications not only for victims of discrimination, but for the legal system itself and
democracy in general.
24
IV. THE PROMISE OF PRE-MERITS DISCOVERY
Recognizing how civil rights claims are more vulnerable to dismissal under the plausibility
pleading standard and its potential impact is an important first step. But it is not enough. This
Part moves from a descriptive to a normative examination of the problem.
Judges may conclude that the increased risk of dismissal of civil rights claims is unfortunate, but
that this outcome is simply an unintended consequence of the application of neutral procedural
rules. It is unfortunate that certain types of claims will be impacted more than others because of
informational inequities or other vulnerabilities, but *107 this is not the business of the courts. It
is true that in the absence of any legislative fix, [FN233] courts are obligated to apply the
plausibility standard to all civil actions not exempted by statute or Rule 9, [FN234] given the
trans-substantivity of the rules and Iqbal's statement of the same. [FN235] However, courts may
exercise their broad discretion to grant discovery and manage their cases in such a way as to
serve the goals of justice and efficiency, as required by the very first Rule. [FN236]
The Federal Rules of Civil Procedure operate as a system; [FN237] litigation generally develops
in a logical sequence, subject to interdependent and interrelated rules. [FN238] The lifecycle of a
lawsuit takes place in a predictable and rational progression, enabling litigants to effectively use
the legal system to resolve disputes. There is an interrelationship and balance between the
pleadings, discovery, and dispositive rules. Because of the integrated nature of the federal rules,
it is important for judges, scholars, and practitioners to examine not only how the discovery
process--as an integral part of the litigation system--will be impacted, but also how it can be
utilized to ameliorate some of the detrimental effects of the new plausibility pleading standard.
As discussed supra, one immediate and direct impact of the plausibility pleading standard is its
elimination of some discovery through dismissals. For claims in which plaintiffs often must rely
on discovery to excavate facts necessary to survive dismissal, the plausibility standard will
prevent some plaintiffs from obtaining discovery altogether. Preliminary data suggests that this is
already happening for civil rights cases, where plaintiffs cannot put forth facts related to a
defendant's intent or policy pre-discovery. There is no doubt that one of the Supreme Court's
primary rationales for retiring Conley's permissive pleading standard was the Court's desire to
reduce time-consuming, costly, and burdensome discovery. [FN239] As more cases are
dismissed post-Iqbal, there will be a discovery reduction--an outcome many litigants, lawyers,
and courts may find appropriate. [FN240]
*108 The plausibility standard may also usher in a different role for discovery. [FN241] The
primary role of discovery is to permit the parties to discover information about the merits of their
claims and defenses, thereby enabling them to narrow the contentions for trial or, more likely, for
settlement. The pleadings, on the other hand, are designed to provide general notice to the parties
and to enable the court to screen out those cases that are facially insufficient under the law. The
25
pleadings and discovery rules work together, so that a case's worth can be assessed later by the
court through summary judgment, [FN242] or by the jury through trial.
Discovery usually does the heavy lifting of merits determination and occurs in the middle of the
litigation cycle. However, in light of the more rigorous plausibility pleading standard, discovery
may need to do heavy lifting of a different kind--viability determination--towards the beginning
of the litigation cycle. Post-Iqbal, discovery should not be eliminated, but instead shifted towards
the front of a lawsuit's timeline and limited to those issues central to plausibility. Courts should
consider narrow, targeted plausibility discovery at the pleadings stage to insure that the transsubstantive application of the Rules does not work an injustice against those cases involving
informational inequities.
The following Part examines various contexts in which the courts regularly order pre-merits
discovery to resolve threshold matters. This Part then examines plausibility discovery as a
potential solution and concludes that it is not only authorized but justified. Finally, this Part
examines arguments parties are likely to make in cases involving informational inequities postIqbal and provides a roadmap for how courts can respond in a way that properly balances the
various competing interests.
A. Available Models for Plausibility Discovery
There are several models of pre-merits discovery from which courts can draw guidance. The
Supreme Court has long recognized the propriety and importance of discovery in resolving a
variety of non-merits threshold matters, including class certification, qualified immunity, and
jurisdiction. [FN243] These examples illustrate how courts have structured pre-*109 merits
discovery in a variety of contexts. While imperfect analogies, the examples demonstrate that the
courts are empowered and capable of ordering clearly defined, narrow discovery aimed at
preliminary litigation matters.
1. Class Certification Discovery
Plaintiffs seeking relief for systemic violations of civil rights and other types of claims are often
afforded the opportunity to take discovery aimed at demonstrating the propriety of class-wide
relief. A complaint's allegations alone may demonstrate the appropriateness, vel non, of class
certification, [FN244] but this is rare. [FN245] More commonly, the complaint on its face does
not clearly indicate that the class action criteria, as set forth in Rule 23 of the Federal Rules of
Civil Procedure, have been met. [FN246]
When determining whether a case should be certified as a class action, a court is required to
conduct a “rigorous analysis” to determine whether the Rule 23 prerequisites have been satisfied.
[FN247] Discovery plays an important role in facilitating such rigor. As recognized by the
Supreme Court, “discovery often has been used to illuminate issues upon which a district court
26
must pass in deciding whether a suit should proceed as a class action under Rule 23, such as
numerosity, common questions, and adequacy of representation.” [FN248] Amended Rule
23(c)(1)(A) expanded the amount of time a court has to make a class certification determination
from “as soon as practicable” to “an early *110 practicable time,” in part to enable the parties to
spend time conducting discovery. [FN249] Thus, it is common practice for courts to permit the
parties to take limited, narrow discovery on the question of certification alone. [FN250]
Class discovery is instructive for plausibility discovery for a number of reasons. First, one of the
reasons plaintiffs are able to take class discovery prior to a court's dismissal of their class claims
is the informational inequity that exists between the parties. Individual personnel records,
corporate policies, and statistical data--evidence often used by civil rights plaintiffs to satisfy the
certification criteria--are frequently in the exclusive control of the defendant. [FN251]
Second, class certification is distinct from a lawsuit's likelihood of success on the merits. When
considering the propriety of class certification, the court makes this determination regardless of
the court's views on the plaintiffs' ultimate chance of succeeding. [FN252]
Third, class discovery illustrates the challenges involved in narrowly defining pre-merits
discovery. Disentangling class certification from merits discovery has proved challenging.
[FN253] While class discovery is designed to answer the question of whether the case should be
certified as a class action, such discovery often overlaps with the merits. [FN254] In *111
practice, clean bifurcation between class and merits discovery has been aspirational. [FN255]
Consequently, satellite litigation and concomitant costs result as the parties dispute what
constitutes merits versus class discovery. [FN256] Such disputes are inefficient and a drain on
the judicial system. A court may reject bifurcation altogether because class and merits discovery
are so co-mingled that the parties would eventually need to take the discovery anyway, even in
the absence of class certification. [FN257]
Fourth, once the parties have defined class discovery, the court must satisfy itself that bifurcation
from the merits is efficient and fair to the parties. [FN258] The scope of class discovery is
governed by balancing the plaintiffs' need to retrieve information relevant to class certification
against the risk of overburdening the defendant with such discovery. [FN259] This is especially
important because class discovery may negate the need for merits discovery altogether. For
example, if class certification is denied, merits discovery is greatly diminished to that of the
individually named plaintiffs, assuming the parties do not settle. Alternatively, if class
certification is granted, the defendant is exposed to widespread merits discovery, which will
likely not come to pass given the preferability of settlement following certification. [FN260]
Thus, class discovery may be the only *112 significant discovery in which the parties participate.
Class discovery often functions as the gatekeeper for plaintiffs alleging discrimination on a classwide basis.
27
Due to the centrality of class discovery, its scope is critical. Indeed, it is what Twombly sought to
avoid. [FN261] Because of the burden class discovery alone can impose, the parties must justify
such discovery [FN262] and are encouraged to create a “specific and detailed precertification
discovery plan,” pursuant to Rule 26(f). [FN263] Courts have significant managerial power and
wide discretion to shape and control class discovery. [FN264]
But class certification discovery also differs from plausibility discovery. Prior to a court's
ordering of class discovery, the court has already determined that the complaint sufficiently
alleges class claims. [FN265] The complaint is not exempt from Rule 8(a)(2)'s requirements
simply because it is styled as a class action. The class complaint has admittedly crossed the
threshold of facial viability, thereby justifying the court's ordering of discovery to determine if
the plaintiffs may act collectively. The class certification determination is more about the scope
and structure of the lawsuit than its very existence.
2. Qualified Immunity Discovery
Another context in which parties are permitted narrow, early discovery is to resolve the question
of whether a government official accused of wrongdoing enjoys qualified immunity. Qualified
immunity protects government officials “from liability for civil damages insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.” [FN266] *113 Qualified immunity balances two competing interests -holding government officials accountable for abuse of power, while also protecting them from
“harassment, distraction, and liability” unreasonably incurred in the line of duty. [FN267]
Because qualified immunity is “an immunity from suit rather than a mere defense to liability,”
[FN268] the immunity question is dealt with at the earliest possible juncture, [FN269] ideally
prior to merits discovery. [FN270]
Consequently, in response to a plaintiff's alleging a violation of a constitutional or statutory right,
a government official often files a Rule 12(b)(6) dismissal motion on qualified immunity
grounds, contending that the right alleged to be violated was not clearly established at the time of
the alleged violation. [FN271] In response to party requests, courts have granted limited
discovery after denying dismissal, but prior to merits discovery, on the propriety of qualified
immunity. This approach may be instructive for courts considering ordering plausibility
discovery.
For example, in Hernandez v. Foster, plaintiffs brought a § 1983 claim against four state
employees for improperly seizing plaintiffs' child in violation of the Fourth and Fourteenth
Amendments. [FN272] The defendants filed a Rule 12(b)(6) motion on qualified immunity
grounds. [FN273] Although Rule 8 notice pleading does not require plaintiffs to plead factual
allegations that anticipate and overcome qualified immunity, [FN274] once the defense is
asserted, plaintiffs must prove that their constitutional rights were clearly established at the time
of the alleged misconduct. [FN275] Relying on Twombly and Iqbal, [FN276] the court
28
determined that the plaintiffs had *114 sufficiently alleged constitutional violations under the
plausibility standard, [FN277] but that “at the pleading stage, there are simply not enough facts
to determine whether qualified immunity applies.” [FN278] While plaintiffs' allegations were
sufficient to support a reasonable inference that their rights were clearly established at the time
of defendants' misconduct, [FN279] the district court noted that further factual development
could reveal otherwise. [FN280] Consequently, although the court denied defendants' Rule
12(b)(6) motion, it concluded that “limited discovery may be necessary before a court can
resolve the issue” [FN281] and left open the possibility of considering the issue later on
summary judgment. [FN282]
The same utilization of limited, early discovery occurred in Argueta v. U.S. Immigration and
Customs Enforcement, in which immigrants brought a Bivens claim [FN283] against four
supervisors from the Office of Homeland Security, alleging abusive treatment and unlawful
search and seizure of their homes in violation of the Fourth and Fifth Amendments. [FN284] In
response, the defendants filed a Rule 12(b)(6) motion on qualified immunity grounds. [FN285]
Relying on Twombly, the court concluded that the complaint's allegations were sufficient to
overcome the defense, [FN286] but that “there [was] an insufficient record to shut the door on a
qualified immunity defense” entirely. [FN287] In the absence of discovery, the court could not
properly discern whether the government officials were entitled to qualified immunity. [FN288]
While the district court denied the defendants' motion, it ordered limited discovery on the
immunity issue so that the parties could revisit the issue through summary judgment *115 prior
to embarking on merits discovery. [FN289] This approach has been approved of by the Supreme
Court [FN290] and replicated by numerous courts. [FN291]
Alternatively, where a defendant files an answer asserting a qualified immunity defense, courts
may order the plaintiff to respond by filing a reply under Rule 7. Pursuant to Rule 7(a), a court
may require the plaintiff to “put forward specific, nonconclusory factual allegations” to
overcome the qualified immunity defense at the pleading stage. [FN292] To analyze the defense,
the court may order limited discovery under these circumstances.
Morgan v. Hubert provides an example of a federal court of appeals approving of early, limited
discovery to resolve the qualified immunity *116 issue. [FN293] In Morgan, a prisoner brought a
§ 1983 claim against a prison warden for failing to provide protective custody, in violation of the
Eighth Amendment. [FN294] The defendant filed a 12(b)(6) motion on immunity grounds,
prompting the magistrate judge to hold a hearing on the issue. [FN295] The magistrate ordered
the plaintiff to file an amended complaint or a Rule 7 reply. [FN296] The plaintiff filed both,
which adequately alleged a violation of a constitutional right clearly established at the time of the
defendant's conduct, prompting the magistrate to deny the defendant's dismissal motion. [FN297]
The defendant appealed the district court's affirmance of the magistrate's order. [FN298] In a per
curiam opinion relying on Twombly and Iqbal, the Fifth Circuit vacated the court's denial of
qualified immunity and remanded for limited discovery on the issue. [FN299]
29
Qualified immunity discovery is justified by its narrow scope and early occurrence in the life
cycle of the lawsuit. [FN300] Narrow and early discovery on the qualified immunity issue has
enabled courts to strike the right balance between protecting government officials from
potentially meritless litigation and giving plaintiffs with potentially meritorious claims court
access. Such discovery is an important compromise. As recognized by the courts, “qualified
immunity does not shield government officials from all discovery but only from discovery which
is either avoidable or overly broad.” [FN301]
Qualified immunity discovery is also justified by the informational inequity that exists between
the parties. For example, while recognizing that the plaintiff's allegations lacked the specificity
required of Rule 7, [FN302] *117 the Fifth Circuit --in Morgan v. Hubert, discussed supra -recognized that in the absence of discovery, the plaintiff could not be blamed. [FN303] “Because
key facts are unknown, and because these facts are solely within [defendant's] possession,” the
Fifth Circuit ordered the district court to revisit the immunity issue following tailored discovery
on the issue. [FN304] Mindful that the prison warden should be protected from full discovery,
[FN305] but that the plaintiff should be given an opportunity to defend against the immunity
defense, the Fifth Circuit concluded that targeted, early pre-merits discovery was the answer.
In sum, the qualified immunity model provides courts with a useful example of how discovery
can be used as an effective and fair screening device early in the litigation. Plausibility discovery
can do the same.
3. Jurisdictional Discovery
In response to a defendant's motion to dismiss a case based on the allegation that a court lacks
jurisdiction over the subject matter of the litigation or personal jurisdiction over the defendant,
courts often permit limited discovery on the threshold question of jurisdiction. At first glance,
this suggests that the jurisdictional discovery model could provide a blueprint for pre-merits
discovery under a similar Rule 12 motion. However, as illustrated below, careful examination
reveals otherwise. Because a Rule 12(b)(6) motion challenges a complaint on its face only,
plausibility discovery's ability to borrow from the jurisdictional jurisprudence is limited.
a. Subject Matter Jurisdiction
Where a defendant files a Rule 12(b)(1) motion to dismiss, facially challenging the sufficiency of
the complaint for failing to sufficiently aver subject matter jurisdiction, [FN306] the court
undergoes a similar analysis to a Rule 12(b)(6) challenge. [FN307] A court's ruling on a Rule
12(b)(1) facial *118 challenge is distinct from the plaintiffs' likelihood of prevailing on the
merits. [FN308] A court assumes all of the well-pled factual allegations are true, [FN309] makes
all reasonable inferences in favor of the plaintiff, [FN310] and gives conclusory statements of
law no presumption of truth. [FN311] Some courts have even imported the plausibility standard
into the Rule 12(b)(1) analysis, requiring the plaintiff to set forth facts plausibly suggesting his
right to the court's jurisdiction, “rather than facts that are merely consistent with such a right.”
30
[FN312] The court relies solely on the complaint and its attachments when determining a motion
to dismiss for lack of subject matter jurisdiction on facial grounds. [FN313]
On the other hand, where a defendant files a Rule 12(b)(1) motion to dismiss, substantively
challenging a court's subject matter jurisdiction by calling into question the veracity of the
complaint's facts, the parties are entitled to discovery on the jurisdictional issue. [FN314] This is
especially true where the facts are “peculiarly within the knowledge of the opposing *119 party.”
[FN315] A refusal to permit limited discovery may even constitute an abuse of discretion, where
it causes prejudice. [FN316] Where the parties dispute the underlying factual predicate for the
court's jurisdiction, a court “enjoys broad authority to order discovery, consider extrinsic
evidence, and hold evidentiary hearings in order to determine its own jurisdiction.” [FN317] A
court may consider, in addition to the complaint, undisputed facts in the record and the court's
own resolution of disputed facts. [FN318] When determining whether it has the authority to hear
a case, a court's power is unmatched, [FN319] enabling it to weigh evidence and find facts -conduct that would be impermissible when ruling on Rule 12(b)(6) and Rule 56 motions.
[FN320] The only limitation to a court's power is its inability to make factual findings on
jurisdictional questions that overlap with the merits. Where the jurisdictional facts and merits are
intermingled, a court must treat the Rule 12(b)(1) motion like one for summary judgment,
[FN321] whose genuine issues of material fact get resolved by the fact-finder at trial. [FN322]
The Rule 12(b)(1) model is instructive. The robust discovery permitted in response to a Rule
12(b)(1) factual challenge illustrates the lengths to which a court can go when determining its
jurisdiction over the subject matter of a lawsuit. While a court's power is unique under such
circumstances, this example demonstrates the breadth of a court's power to use discovery to
resolve a critical threshold matter. Plaintiffs requesting plausibility discovery would be
requesting the court to play a more circumscribed role than the one described here.
The more apt comparison is between a Rule 12(b)(6) motion and a Rule 12(b)(1) facial challenge
because both contest the legal sufficiency *120 of the complaint. [FN323] Because pre-dismissal
discovery does not arise in response to this 12(b)(1) analog, there is scant direct guidance on how
pre-dismissal discovery might work in the 12(b)(6) context. Given that courts have applied the
plausibility standard in the 12(b)(6) context to the 12(b)(1) context, plausibility discovery may
also be appropriate to resolve subject matter jurisdictional issues where informational inequity
exists.
b. Personal Jurisdiction
Similarly, personal jurisdictional discovery can inform plausibility discovery in broad strokes.
Courts regularly grant targeted, limited discovery to determine whether they have personal
jurisdiction over the defendant. The courts enjoy significant discretion in determining whether to
grant such discovery and how to define its scope. [FN324]
31
Discovery should generally be granted where a “colorable case” for jurisdiction has been made,
[FN325] “pertinent facts bearing on the question of jurisdiction are controverted or where a more
satisfactory showing of the facts is necessary.” [FN326] To facilitate such discovery, a court may
order the parties to meet, confer, and formulate a discovery plan. [FN327]
A trial court's decision whether or not to grant personal jurisdictional discovery receives
significant deference from the appellate courts. A discovery denial is reversed only “upon the
clearest showing” that the denial resulted in “actual and substantial prejudice to the complaining
litigant.” [FN328] A trial court need not grant discovery where *121 plaintiff's motion is
untimely, [FN329] based on speculation, [FN330] or is poorly justified by the plaintiff. [FN331]
Like the subject matter jurisdictional model, the availability of discovery to determine personal
jurisdiction is governed by the nature of the defendant's jurisdictional challenge. Where a
defendant challenges the plaintiff's theory of jurisdiction under Rule 12(b)(2), the court's analysis
is very much like a Rule 12(b)(6) one. [FN332] For purposes of the 12(b)(2) motion, the court
accepts the well-pled factual allegations as true and determines whether the complaint on its face
sufficiently establishes jurisdiction. [FN333] Making this determination does not involve a
court's engaging in fact-finding or conducting an evidentiary hearing. [FN334]
On the other hand, a defendant may challenge the facts on which personal jurisdiction is
predicated under Rule 12(b)(2). In response to a factual challenge, a court has the discretion to
order discovery and to determine the type and amount necessary to resolve the personal
jurisdiction question. [FN335] Or, a court may choose to receive only affidavits *122 from the
parties. By limiting itself to affidavits and/or discovery, the court requires the plaintiff to make
only a prima facie case of personal jurisdiction at this juncture. [FN336] The court accepts all
uncontroverted facts in the complaint and construes all disputed facts in favor of the plaintiff.
[FN337]
Alternatively, a court may convene a pretrial evidentiary hearing, [FN338] where the parties may
testify and fully present their positions on the personal jurisdictional issue. [FN339] At this
juncture, the plaintiff is required to prove jurisdiction by a preponderance of the evidence.
[FN340] The court may find facts and resolve the personal jurisdiction issue pre-trial. Otherwise,
the court may choose to defer resolution of the personal jurisdiction issue until trial. For
example, where the jurisdictional facts are intertwined with the merits, the court may defer factfinding and instead let the jury do so. [FN341]
In sum, the personal jurisdictional model is not sufficiently analogous to provide a blueprint for
plausibility discovery. But, like subject matter jurisdictional discovery, the model provides
another example of how courts have used discovery to aid in screening cases and enhancing their
gatekeeping function.
In conclusion, the examples of pre-merits discovery demonstrate the broad discretion courts have
to conduct discovery to resolve threshold issues. Where there are compelling rationales for the
32
early, inexpensive, and equitable resolution of issues, courts have adeptly managed pre-merits
discovery.
*123 B. Plausibility Discovery as a Model for the Future
1. Courts Have the Authority to Order Plausibility Discovery
a. Plausibility Discovery Is in Compliance With the Discovery Rules
Outside of a court's broad discretion to order pre-merits discovery in a variety of contexts,
discussed supra, the discovery rules themselves do not foreclose such discovery. [FN342] Rule
26(b)(1) defines the scope of discovery as follows: “Parties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's claim or defense . . . .” [FN343] On the one
hand, plausibility discovery is relevant to the plaintiff's claim; such discovery directly targets the
claim by requiring the plaintiff to unearth facts that would nudge the claim from conceivable to
plausible. The discovery is also relevant to the defense that no such claim has been stated.
On the other hand, if a judge grants a 12(b)(6) motion, he has concluded that the plaintiff has
failed to state a claim, so any subsequent discovery would be to develop a claim not pleaded, an
impermissible approach under the rules. [FN344] Hence, a court intending to order plausibility
discovery would need to defer the 12(b)(6) ruling.
A court may also anchor its authority to order plausibility discovery in Rule 26(b)(1)'s
discretionary discovery provision. It states: “For good cause, the court may order discovery of
any matter relevant to the subject matter involved in the action.” [FN345] Although a court
cannot use this *124 provision as an end-run around the general discovery rule, it demonstrates
that where there is “good cause,” a court may permit even broader discovery than usual.
Ordering discovery to overcome informational inequities would seem to constitute “good cause”
for the reasons described infra.
Finally, the timing of plausibility discovery does not violate the Rules. Rule 26(d)(1) states: “A
party may not seek discovery from any source before the parties have conferred as required by
Rule 26(f), except . . . when authorized . . . by court order.” [FN346] A court is free to diverge
from the general timing rule and order discovery prior to when the parties' meet and confer.
[FN347] Indeed, in response to a request for plausibility discovery, a court may order the parties
to participate in a meeting to draft a proposed discovery plan, relying on Rule 26(f) as a model.
In sum, the discovery rules in particular and case law in general suggest the court has the
authority to order plausibility discovery.
b. Plausibility Discovery Does Not Require a Rule 12(b)(6)Conversion to Rule 56 Summary
Judgment
33
Plausibility discovery does not require a court to convert a defendant's 12(b)(6) motion into a
Rule 56 summary judgment motion. If a defendant takes some limited discovery to counter
plaintiff's evidence of a plausible claim, and the judge considers such extrinsic evidence, he will
be required under Rule 12(d) to convert the Rule 12(b)(6) motion into a Rule 56 summary
judgment motion. [FN348] However, a court has considerable discretion whether or not to take
into account defendant's extrinsic evidence. If the defendant attaches outside evidence to its Rule
12(b)(6) motion, conversion can be avoided by the *125 court expressly ignoring such evidence
[FN349] or finding it irrelevant to the court's dismissal determination. [FN350]
Moreover, a court may consider a variety of materials without risking conversion when testing
the complaint's legal adequacy. In particular, in addition to the complaint, a court may rely on
documents attached to the complaint as exhibits, [FN351] documents incorporated into the
complaint by reference, [FN352] matters subject to judicial notice, [FN353] matters of public
record, [FN354] court orders, [FN355] and “documents either in plaintiffs' possession or of
which plaintiffs had knowledge and relied on in bringing suit.” [FN356] A *126 court may even
consider a document attached solely to defendant's dismissal motion if the document's contents
are alleged in the complaint and its authenticity is not questioned. [FN357] Thus, much of what
can be unearthed through targeted plausibility discovery may fall within the confines of the Rule
12(b)(6) examination.
2. Plausibility Discovery Is Justified on Policy Grounds
Prior to the plausibility pleading standard--first established in the antitrust context by Twombly
and later unequivocally expanded to all civil actions in Iqbal--there was very little need for a
court to give a plaintiff an opportunity to discover facts showing he was entitled to relief. The
generous notice-pleading standard under Conley enabled plaintiffs to plead cases more easily and
to more likely survive dismissal, as many courts readily admit. [FN358] The informational
inequity between the parties, while always there, did not have the same deleterious effect on a
plaintiff's capacity to overcome a Rule 12(b)(6) challenge. The veracity of his allegations could
later be fleshed out in discovery and ultimately tested through summary judgment or trial.
[FN359] But post-Iqbal, this is not the case. The same plaintiff today may find his complaint
vulnerable to premature dismissal because of the more rigorous pleading standard. [FN360]
Consequently, a different approach is needed.
The primary objection to allowing plaintiffs discovery at the pleading stage is that courts have
held where a complaint does not meet the minimum pleading standard under Rule 8(a)(2), a
plaintiff is not *127 entitled to discovery. [FN361] Iqbal itself concluded that “[b]ecause
respondent's complaint is deficient under Rule 8, he is not entitled to discovery, cabined or
otherwise.” [FN362] Although this language may suggest disapproval of plausibility discovery,
Iqbal does not require this conclusion. [FN363]
34
First, Iqbal's language does not address the discovery proposed here. The Supreme Court has not
had occasion to specifically address the utility of using pre-dismissal discovery to determine
plausibility. Instead, historically courts have prohibited merits discovery where a plaintiff has not
met the minimum pleading standard.
Second, in Iqbal, the Court's unwillingness to permit plaintiff even cabined discovery [FN364]
was in the context of plaintiff's asking the Court to relax the pleading standard on the ground that
subsequent merits discovery would be limited. [FN365] In response to this request, the Court
declined the invitation and explained that even limited, sequential, court supervised discovery
[FN366] would still expose high-level government officials *128 to the burdens of discovery, in
contravention of the qualified immunity doctrine. [FN367] The Court rejected conditioning a
complaint's survival on the availability of limited merits discovery later on. [FN368] It did not
address--much less reject--permitting pre-dismissal discovery solely to discern if a complaint
makes a plausible claim where informational inequity exists.
The Supreme Court's concern about permitting a complaint to survive because merits discovery
would be limited stemmed from the Court's “rejection of the careful-case-management
approach.” [FN369] The Court's apprehension over the district court's ability to check abuse of
merits discovery led the Court to conclude that 12(b)(6) survival should not be conditioned on
cabined merits discovery. [FN370] This is especially true where qualified immunity is asserted.
[FN371]
The Court's concern over district courts' inability to prevent discovery abuse through case
management could apply to pre-dismissal discovery as well. The Court might conclude that
district courts would do no better at controlling this discovery either. However, if this were the
case generally, the Court would not endorse the myriad ways in which district courts already use
discovery to resolve a variety of threshold issues, as discussed supra. On the contrary, the Court
recognizes with approval the broad power and discretion of district courts to manage discovery
to address various preliminary litigation matters. [FN372]
*129 The pre-dismissal plausibility discovery contemplated here furthers, rather than
contravenes, the Supreme Court's goal of prohibiting defendants from being forced to engage in
burdensome discovery and expending significant time, resources, and attention on meritless
litigation. By permitting the parties plausibility discovery, district courts can more easily resolve
those cases that are close calls --resulting in early dismissals that protect defendants from
burdensome merits discovery where appropriate. This approach benefits defendants as well as
plaintiffs.
For example, in Kregler v. City of New York, [FN373] the district court permitted plausibility
discovery where a former firefighter's First Amendment § 1983 retaliation claim was a close call.
[FN374] Rather than deny the defendant's motion to dismiss outright and subject the defendant
to potentially expensive and time consuming merits discovery, [FN375] the court instead
35
permitted the parties to engage in targeted discovery on the plausibility issue. [FN376] Although
the court ultimately granted defendant's 12(b)(6) motion on the pleadings alone, its consideration
of additional evidence -- through documents and testimony by the plaintiff --persuaded the court
that plaintiff's retaliation claim was implausible. [FN377] But for this targeted plausibility
discovery, the defendant might have had to engage in full blown merits discovery prior to
challenging plaintiff's retaliation claim again through summary judgment --a more time
consuming and costly alternative. [FN378]
*130 Another objection to plausibility discovery is the valid concern that plaintiffs should not be
permitted to go on fishing expeditions [FN379] and at a defendant's expense. [FN380] Plaintiffs
are expected to conduct an adequate pre-suit investigation prior to filing suit, in compliance with
Rule 11(b)(3). [FN381] Plaintiffs must exercise the requisite due diligence and pre-filing effort
required by the rules.
However, where plaintiffs seek plausibility discovery because of an informational inequity,
plaintiffs' shortfall does not arise from any ethical or professional flaw on their part. Where a
plaintiff labors under such an inequity, a Rule 11(b)(3) “inquiry reasonable under the
circumstances” may produce a complaint lacking in facts sufficient to overcome the plausibility
standard. [FN382]
A similar rationale justifies the more liberal construction given to complaints filed by prisoners
who proceed in forma pauperis. For example, in Rodriguez v. Plymouth Ambulance Service, a
prisoner who filed a § 1983 claim pro se was given the “opportunity to engage in limited
discovery to ascertain the identity” of certain individual medical staff members who were
allegedly deliberately indifferent to his serious medical condition, in violation of the Eighth
Amendment. [FN383] Recognizing the prisoner's “opportunities for conducting a precomplaint
inquiry” as “virtually nil,” [FN384] the court refrained from dismissing the complaint and
instead ordered *131 pre-dismissal discovery. [FN385] The Seventh Circuit explained that the
“principle is not limited to prisoner cases” but instead “applies to any case in which . . .
identification of the responsible party may be impossible without pretrial discovery.” [FN386]
The court recognized that while eventually the plaintiff would have to discover the information
sufficient to overcome a Rule 12(b)(6) dismissal under Twombly and Iqbal, his initial inability
did not warrant immediate dismissal. [FN387]
Other courts have ordered similar pre-dismissal discovery. [FN388] For example, in Hines v.
City of Albany, [FN389] in response to a Rule 12(b)(6) motion, the district court permitted
plaintiffs limited discovery to identify the individual police officers accused of constitutional
violations under § 1983. [FN390] Even pre-Twombly, some courts have permitted limited,
focused discovery during the pleadings stage for those cases subjected to a heightened pleading
standard where the defendant had exclusive control of information. [FN391]
36
Some may contend that plausibility discovery as a solution is over-inclusive because plaintiffs
who bring claims involving informational inequities may get the benefit of such discovery,
whether or not they exercised diligence pre-suit. To assuage itself that a plaintiff acted diligently,
a court may order the plaintiff to explain what efforts he made pre-filing and why he should get
pre-dismissal discovery to bridge the plausibility gap. [FN392] To facilitate this process, a court
may require the *132 parties to establish a discovery plan, using Rule 26(f) for guidance,
discussed infra.
In light of Rule 1's mandate to “construe[] and administer[]” the rules so as “to secure the just,
speedy, and inexpensive determination of every action,” [FN393] judges are not only
encouraged, but required, to exercise their discretion to fulfill this mission. [FN394] Litigants
[FN395] and their lawyers [FN396] have a similar obligation. Rule 1 requires that a court
interpret and construe the rules to promote justice and efficiency for all civil actions. These
“touchstones of federal procedure” [FN397]--as described by the Supreme Court--can be
accomplished by utilizing and structuring discovery to address the plausibility pleading standard.
C. Plausibility Discovery in Practice
The following Section sets forth arguments the parties are apt to make in cases where
informational inequities threaten to undermine a plaintiff's ability to survive dismissal post-Iqbal
and a roadmap for how a court can equitably address these arguments within the scope of its
authority. [FN398]
What triggers this process is a defendant's filing a Rule 12(b)(6) dismissal motion, a more likely
occurrence in light of the more rigorous pleading standard. A court must then ascertain whether
the complaint fails to plausibly state a claim upon which relief can be granted in compliance with
Rule 8(a)(2). [FN399] Defense attorneys will likely argue that plaintiffs' claims are implausible,
dissecting the complaint and labeling allegations as conclusory. Plaintiffs' attorneys will likely
counter that the claims are plausible, and argue, in the alternative, that should the claims fall
short because of informational inequities, plaintiffs should be *133 granted limited discovery on
the plausibility issue. How should the court respond?
1. Establish That Informational Inequity Exists
Because plausibility discovery is justified where there is an informational inequity, [FN400] the
threshold inquiry for a court is whether such an inequity exists. [FN401] An informational
inequity exists where the defendant has exclusive or primary control over the information
necessary for the plaintiff to make a plausible showing to the court. [FN402] Examples include
facts about a defendant's state of mind (such as intent to discriminate), secret agreements (such as
conspiracies), and companywide policies and statistics. Claims most likely implicated include
civil rights (such as § 1983 and employment discrimination), antitrust, products liability, and
environmental law.
37
Where a plaintiff has clearly identified the possible factual shortcomings of his complaint and the
facts he will seek that can only be obtained through targeted discovery, [FN403] the court may
exercise its discretion to order pre-dismissal discovery. A discovery order that describes the facts
necessary to overcome the plausibility threshold would inform not only the immediate litigants,
but future ones, of what is necessary for a complaint to survive a Rule 12(b)(6) motion. [FN404]
Given the *134 embryonic stage of the plausibility pleading standard, building a body of case
law in this area would be invaluable. This would promote clarity, uniformity, and predictability
in an understandably confusing arena.
2. Defer Ruling on the Motion to Dismiss
In response to a plaintiff's motion or sua sponte, a court should defer ruling on a defendant's Rule
12(b)(6) motion until after plausibility discovery is complete. [FN405] Dismissing the complaint
without allowing such discovery would work an injustice against those plaintiffs who bring civil
actions involving informational inequities. Such a denial would contravene the letter and spirit of
the rules. [FN406] The better procedure is to defer ruling because if the court grants the motion
to dismiss, the court may lack the jurisdiction to order discovery. [FN407]
*135 3. Order Plausibility Discovery
If a court defers ruling on defendant's dismissal motion, and has been persuaded that some
discovery could tip the complaint over the viability line, the court should grant plaintiff's motion
for plausibility discovery. [FN408] Of course, to justify plausibility discovery there must be
some reasonable expectation that it will yield fruit. [FN409] Such discovery would be very
narrow, focused exclusively on unearthing the facts identified as necessary for demonstrating
plausibility. [FN410]
a. The Scope of Plausibility Discovery
Unlike other pre-merits discovery models, in which the subject matter of the discovery is more
distinct from the merits, for plausibility discovery bifurcation on this basis is not as clear. For
example, in the class certification and qualified immunity contexts, these inquiries are separate
and distinct from the merits, thereby allowing a court to bifurcate merits discovery from class
certification and qualified immunity discovery. While this does not mean that there is no overlap
and that the courts do not struggle to cleanly disaggregate the merits from the other inquiries,
[FN411] bifurcation is often possible and preferable under these models. For example, a
defendant may argue that the discovery plaintiff characterizes as pertaining to class certification
goes to the merits and thus should not be permitted. Indeed, there are often occasions where facts
pertain to both class certification and merits. But under these models this disagreement takes
place at the edges.
By contrast, for plausibility discovery, those facts necessary to plausibly show a plaintiff is
entitled to relief would naturally overlap with those going to the merits. For example, a plaintiff
38
may need the identity of a defendant to meet the plausibility threshold, a fact which would also
*136 pertain to liability. In Iqbal, had the plaintiff been able to take some limited discovery predismissal, he might have unearthed documents plausibly suggesting that the defendants had
personal knowledge or involvement in the alleged wrongdoing. These documents would also be
directly relevant to the question of liability.
The difference between plausibility and merits discovery is more its scope than its subject
matter. Care must be taken to insure that plausibility discovery does not become merits
discovery. To protect the defendant from the cost and burden of unwarranted merits discovery,
[FN412] plausibility discovery must be narrowly-defined and limited to just what is necessary to
cross the viability threshold. To facilitate this process, a court may request that the parties meet
and confer and create a proposed discovery plan, using Rule 26(f) for guidance, which the court
can approve or modify as needed.
A similar procedure, “phased discovery,” [FN413] is based on the same concept of protecting the
defendant from merits discovery while permitting the parties some threshold discovery, which
follows the denial of a Rule 12(b)(6) motion. In Justice Steven's dissent in Twombly, he
suggested that had he been the district court judge, he would have permitted plaintiffs to take
some targeted depositions of executive defendants rather than summarily dismissing plaintiffs'
claims. [FN414] In Twombly, the plaintiffs had proposed a plan of “phased discovery,”
comprised of an initial phase of discovery “limited to the existence of the alleged conspiracy and
class certification,” to be followed by “more expansive, general discovery” if the class claims
survived summary judgment. [FN415] This phased discovery proposal was, according to Justice
Stevens, “an appropriate subject for negotiation.” [FN416]
Similarly, the Second Circuit, in Iqbal, was receptive to a phased discovery plan that would have
protected senior government officials from premature merits discovery by requiring front-line
officials to be subjected to discovery first. [FN417] The Second Circuit noted that even if a
complaint survives a Rule 12(b)(6) challenge, the district court may “exercise[] its discretion to
permit some limited and tightly controlled reciprocal discovery so that a defendant may probe for
amplification of a plaintiff's claims and a plaintiff may probe” issues pertaining to qualified
immunity. [FN418] In Justice Breyer's dissent in Iqbal, he cited with approval the ways in which
discovery can be structured and cases managed to protect *137 government officials from
unwarranted litigation, as described by the Second Circuit. [FN419]
b. The Form of Plausibility Discovery
Plausibility discovery may take various forms and should be governed on a case-by-case basis, at
a court's discretion. Some courts may chose to limit the type of discovery (i.e. interrogatories
rather than depositions), the amount of discovery (i.e. three depositions), the persons subjected to
discovery (i.e. only lower level officials), and the time period for discovery (i.e. one month
limitation). Some courts may chose to actively manage discovery. One court, Kregler v. City of
39
New York, conducted a kind of supervised discovery, [FN420] at a pretrial hearing [FN421]
pursuant to Rule 12(i), where he entertained live testimony and other evidence limited to
addressing whether plaintiff plausibly alleged a claim for retaliation. [FN422] In an effort to
avoid continued motions practice and potentially onerous and needless discovery against
government officials accused of violating § 1983, the court exercised its discretion to hold such a
hearing. [FN423] The hearing--designed to resolve the threshold question of the complaint's
legal sufficiency [FN424]--could conclude with the court's granting the Rule 12(b)(6) motion,
denying it, or ordering additional limited discovery. [FN425] The court also scheduled a
conference with the parties to discuss the structure, scope and procedure of the hearing itself.
[FN426]
*138 The court concluded that the hearing was beneficial to its plausibility determination. The
court found the direct, cross, and court examinations of the plaintiff far more beneficial in
fleshing out the complaint's factual allegations than written motions practice would have been.
[FN427] The hearing produced a “fuller and clearer record” which enhanced the court's and
possibly the parties' understanding of the case [FN428] and enabled the court to decide the
12(b)(6) motion in “far shorter time” than usual. [FN429] The novelty of this approach was not
lost upon the court:
Admittedly, the approach the Court proposes here entails passage through relatively unchartered
ground. Difficulties are bound to arise along the way. At this point some of the bumps and
detours are entirely unknown, while others, though likely in the repertory of anticipated legal
argument, do not appear insurmountable. But such challenges go with the territory in any form of
exploration for new paths and different ways of doing things. [FN430]
4. Grant Plaintiff Leave to Amend the Complaint
If a plaintiff files a motion for leave to amend the complaint after incorporating the facts
uncovered through plausibility discovery, the court should grant leave to amend, unless it would
be futile. Pursuant to Rule 15(a)(2), “[t]he court should freely give leave when justice so
requires” [FN431] and Rule 8(e), “[p]leadings must be construed so as to do justice.” [FN432]
Courts promote a liberal leave policy, permitting leave whenever possible. [FN433] A court can
grant such leave even in the absence of *139 a plaintiff's motion, [FN434] and the burden falls
on the defendant to contest such leave. [FN435] Justice requires amendment where there is, inter
alia, no undue delay, hardship or prejudice against the defendant. [FN436] Here, because of the
proscribed nature of the discovery and its occurrence at the beginning of the lawsuit's lifecycle,
amendment is most likely justified.
Under the new pleading standard, as complaints fail to meet the plausibility test, some courts are
liberally granting plaintiffs leave to amend. For example, in a case similar to Twombly, In re
Graphics Processing Units Antitrust Litigation, [FN437] direct and indirect purchasers contended
that producers of graphics processing units (GPUs) engaged in a price-fixing conspiracy, in
40
violation of section 1 of the Sherman Act. [FN438] Plaintiffs alleged that defendants' parallel
pricing and parallel releasing of products indicated an illicit agreement not to compete with one
another. [FN439] Relying on Twombly, the court concluded that plaintiffs' allegations of parallel
conduct were equally consistent with illegal and legal behavior, thereby failing to reach the
plausibility threshold. [FN440] The court found the complaint wanting where it alleged that
defendants attended certain trade shows and conferences which provided an opportunity to
conspire, but did not specifically allege that the defendants actually met and conspired. [FN441]
While the court did not require “specific back-room meetings between specific actors at which
specific decisions were made,” it found the plaintiffs' allegation of a price-fixing agreement too
conclusory. [FN442]
*140 Although the In re Graphics Processing Units Antitrust Litigation court granted defendants'
motion to dismiss, [FN443] it left the door open for plaintiffs to potentially amend their
complaint, with the possibility of some narrow pre-repleading discovery. [FN444] Specifically,
the court permitted the plaintiffs to “file motions to propound limited discovery and for leave to
amend” the complaint. [FN445] The court required them to “identify what plaintiffs intend to
find through discovery and how their proposed amendments to the complaint will remedy the
problems identified in this order.” [FN446] Defendants were given the opportunity to file
opposition briefs to challenge the proposed amended complaint and to state Rule 12 objections.
[FN447] Plaintiffs could reply, and the court would hold a hearing. [FN448]
Numerous courts, while permitting the plaintiffs leave to amend because of a plausibility
problem, have not accompanied this with targeted discovery. Where the complaint's
implausibility is due to an informational inequity, an opportunity to re-plead does little good
without some narrow discovery to ameliorate the problem.
5. Rule on the Motion to Dismiss
Upon granting leave to amend, a court would rule on any renewed Rule 12(b)(6) motion, judging
the proposed amended complaint which would be enhanced by facts revealed through
plausibility discovery. Moreover, as recognized by the Supreme Court, providing the plaintiff an
opportunity to amend his complaint, prior to his being subjected to a Rule 12(b)(6) ruling,
enhances appellate review of dismissals because there is a more robust record upon which to
rely. [FN449]
In sum, the courts are in unchartered territory post-Iqbal. Although not insurmountable, the
challenge of dealing with civil rights and other *141 cases involving informational inequities in a
“just, speedy, and inexpensive” [FN450] manner is great. The proposal set forth above is a
modest start on that path.
V. CONCLUSION
41
In conclusion, this is an important moment in the history of modern civil procedure. The new
plausibility pleading standard may inadvertently threaten the viability of claims that protect
fundamental American values such as civil rights and others. The time is right to examine the
role that targeted, pre-merits discovery can play in ameliorating this threat. The courts are
empowered and encouraged to consider how discovery's role can evolve to meet the challenges
of contemporary civil litigation.
[FNa1]. Suzette M. Malveaux is an Associate Professor of Law at the Columbus School of Law,
at the Catholic University of America. I am indebted to many for their support of this project.
Much gratitude goes to the following people for their insights and invaluable feedback: Judge
Thomas J. Motley, Judge Ivan L. R. Lemelle, Cyrus Mehri, Esq., Professor Patrick Wooley,
Professor Stephen Burbank, and my colleagues at the Columbus School of Law. A special thanks
goes to the following people for their excellent research assistance: Associate Director Elizabeth
A. Edinger, Reference Librarian Stephen Young, Research Fellow Shayna Lewis, and Research
Assistants Trish Gray, Lauren Nesbitt, and Grant Mulkey. Thank you to Dean Veryl Miles and
the Columbus School of Law for their generous funding of this project. Much appreciation goes
to the following for inviting me to present on this topic and allowing me to receive invaluable
feedback from the participants: the American Association of Law Schools (AALS) Civil
Procedure Section at the 2010 AALS annual conference; the Texas Wesleyan School of Law at
its 2010 Faculty Speaker Series; and the Hill-Tucker Bar Association and the Office of the
Attorney General of Virginia at their 2009 CLE. And most importantly, I am grateful for the love
and support of my family and dear friends, without whom I could not do this work.
[FN1]. See David Marcus, The Past, Present, and Future of Trans-Substantivity in Federal Civil
Procedure, 59 DePaul L. Rev. (forthcoming 2010) (manuscript at 7), available at
http://ssrn.com/abstract=1428992) (“A procedural rule is trans-substantive if it applies equally to
all cases regardless of substance. A substance-specific procedural rule, in contrast, requires
specific processes for a particular substantive category of case.”).
[FN2]. 127 S. Ct. 1955 (2007).
[FN3]. 129 S. Ct. 1937 (2009).
[FN4]. “Civil rights” is broadly defined. It includes various federal statutes (such as Title VII of
the Civil Rights Act of 1964, the Americans With Disabilities Act, and the Fair Housing Act) as
well as constitutional torts (such as claims brought under 42 U.S.C. §§1981, 1983).
[FN5]. By “informational inequity” this Article is referring to the difference in knowledge and
access to information between the parties. This asymmetry or imbalance is inequitable because
42
of its deleterious impact on civil rights and other types of claims described infra Part III.B.1.b.
[FN6]. See Steven S. Gensler, Some Thoughts on the Lawyer's E-volving Duties in Discovery,
36 N. Ky. L. Rev. 521 (2009), for an interesting discussion of how e-discovery has contributed to
the front-loading of discovery.
[FN7]. See Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94
Iowa L. Rev. 873, 932-35, 934 n.256 (2009) (describing pleading-stage discovery as
“promising”); A. Benjamin Spencer, Pleading Civil Rights Claims in the Post-Conley Era, 52
How. L.J. 99, 161 (2008) (arguing for limited initial discovery on specific issues at the pleading
stage for civil rights cases); Adam N. Steinman, The Pleading Problem, 62 Stan. L. Rev.
(forthcoming May 2010) (manuscript at 57-59), available at http://ssrn.com/abstract=1442786.
Cf., Lonny Sheinkopf Hoffman, Access to Information, Access to Justice: The Role of Presuit
Investigatory Discovery, 40 U. Mich. J.L. Reform 217, 222-23 (2007) (describing pre-suit
discovery as an option).
[FN8]. Professor Edward A. Hartnett's article, Taming Twombly, stands out as an exception to
this. See Edward A. Hartnett, Taming Twombly, 158 U. Pa. L. Rev. (forthcoming 2010)
(manuscript at 44-48), available at http:// ssrn.com/abstract=1452875. He argues persuasively
that the courts have the authority under the Federal Rules to permit discovery while a 12(b)(6)
motion is pending. This discovery may be limited to what is necessary to support a particular
allegation, or may even be on the merits. Id. See also William H. Page, Twombly and
Communication: The Emerging Definition of Concerted Action Under the New Pleading
Standards, 5 J. of Competition L. & Econ. 439, 466-68 (arguing for limited discovery to meet
plausibility standard in the antitrust context).
[FN9]. Plaintiffs brought suit under the Railway Labor Act, 45 U.S.C. §151 (2006).
[FN10]. 355 U.S. 41 (1957).
[FN11]. Id. at 45-46.
[FN12]. Id. at 47 (footnote omitted) (quoting Fed. R. Civ. P. 8(a)(2) (1952) (amended 1966)).
The Court relied on the Forms accompanying the Rules to demonstrate its point. Id. at 47 (“The
illustrative forms appended to the Rules plainly demonstrate this.”).
[FN13]. Id. at 47-48.
[FN14]. Id. at 48 (quoting Fed. R. Civ. P. 8(f) (1952) (amended 1966)).
43
[FN15]. Id. (“The Federal Rules reject the approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome....”).
[FN16]. Id.
[FN17]. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S.
163, 164-65 (1993) (noting circuit split over whether a heightened pleading requirement applied
in civil rights cases brought against municipalities under §1983).
[FN18]. Id. at 163-64; 42 U.S.C. §1983 (2006).
[FN19]. Id. at 167.
[FN20]. Id. at 168.
[FN21]. Id.
[FN22]. Id.
[FN23]. See Fed. R. Civ. P. 9(b) (“In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person's mind may be alleged generally.”).
[FN24]. Leatherman, 507 U.S. at 168-69.
[FN25]. 534 U.S. 506 (2002).
[FN26]. Id. at 508-09.
[FN27]. Id. at 508, 515 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
[FN28]. McDonnell Douglas Corp., 411 U.S. at 802. To successfully make out a prima facie
showing of intentional discrimination, a plaintiff must demonstrate by a preponderance of the
evidence that he or she is a member of a protected class, was qualified for a vacant job, suffered
an adverse employment action, and experienced circumstances that support an inference of
discrimination. Swierkiewicz, 534 U.S. at 510; McDonnell Douglas Corp., 411 U.S. at 802; Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54 & n.6 (1981).
[FN29]. Swierkiewicz, 534 U.S. at 509.
44
[FN30]. Id. at 509-10.
[FN31]. Id. at 510-11.
[FN32]. Id. at 508, 511-13.
[FN33]. The Court's holding also relied on the fact that the McDonnell Douglas test does not
apply to all employment discrimination cases and for those cases in which it does apply, its
specific criteria are shaped by context. See Swierkiewicz, 534 U.S. at 511-12.
[FN34]. Id. at 511. In particular, “[W]e have rejected the argument that a Title VII complaint
requires greater ‘particularity,’ because this would ‘too narrowly constric[t] the role of the
pleadings.’... ‘When a federal court reviews the sufficiency of a complaint, before the reception
of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue
is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims.’... Before discovery has unearthed relevant facts and evidence, it
may be difficult to define the precise formulation of the required prima facie case in a particular
case.” Id. at 511-12 (quoting McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 283 n.11
(1976); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)).
[FN35]. Id. at 512 (“This simplified notice pleading standard relies on liberal discovery rules and
summary judgment motions to define disputed facts and issues and to dispose of unmeritorious
claims.”).
[FN36]. Id. at 513-14. In particular, the Court noted an “inextricabl[e] link[]” between Rule 8(a)
and Rules 8(e)(1) (“[n]o technical forms of pleading or motions are required”), 8(f) (“[a]ll
pleadings shall be so construed as to do substantial justice”), 12(e) (motion for a more definite
statement available to defendant), and 56 (summary judgment available to screen out meritless
claims before trial). Id. at 513-14 (quoting Fed. R. Civ. P. 8(f) (2002) (amended 2007)). The
Court also noted how Rule 9(b) is reserved for those claims requiring pleading particularity. Id.
at 513.
[FN37]. Id. at 514.
[FN38]. Id. at 514-15.
[FN39]. Id.
[FN40]. Id. at 515 (“Rule 8(a) establishes a pleading standard without regard to whether a claim
will succeed on the merits. ‘Indeed it may appear on the face of the pleadings that a recovery is
45
very remote and unlikely but that is not the test.”’ (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974))).
[FN41]. 127 S. Ct. 1955 (2007).
[FN42]. Id. at 1961-62. Defendants are called “Incumbent Local Exchange Carriers” (ILECs),
also known as “Baby Bells.” Id. at 1961. ILECs were responsible for facilitating the entry of
competitors (“competitive local exchange carriers” or CLECs) into the local market under the
Telecommunications Act of 1996. Id.
[FN43]. Sherman Act, 15 U.S.C. §1 (2006).
[FN44]. 127 S. Ct. at 1962.
[FN45]. Id. at 1963. The district court concluded that allegations of parallel business conduct
alone were not sufficient for stating a claim under §1. Id. Instead, plaintiffs were required to
allege additional facts that would “tend[] to exclude independent self-interested conduct as an
explanation for defendants' parallel behavior.” Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174,
179 (S.D.N.Y 2003), vacated, 425 F.3d 99 (2d Cir. 2005), rev'd, 127 S. Ct. 1955 (2007).
“Plaintiffs have... not alleged facts that suggest [] that refraining from competing in other
territories... was contrary to defendants' apparent economic interests, and consequently have not
raised an inference that their actions were the result of a conspiracy.” Twombly, 313 F. Supp. 2d
at 188.
[FN46]. Twombly, 127 S. Ct. at 1968 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
“[A] court would have to conclude that there is no set of facts that would permit a plaintiff to
demonstrate that the particular parallelism asserted was the product of collusion rather than
coincidence.” Twombly, 425 F.3d at 114.
[FN47]. Twombly, 127 S. Ct. at 1963. See also Twombly, 425 F.3d at 114.
[FN48]. Justice Souter delivered the Court's opinion, which was joined by Chief Justice Roberts
and Justices Scalia, Kennedy, Thomas, Breyer, and Alito. Twombly, 127 S. Ct. at 1960. Justices
Stevens and Ginsburg dissented. Id. Ironically, in Ashcroft v. Iqbal--which further built on
Twombly's new pleading standard--Justices Souter and Breyer authored dissents. See discussion
infra Part II.F.
[FN49]. Twombly, 127 S. Ct. at 1963.
[FN50]. Id. at 1964. (quoting Conley, 355 U.S. at 47).
46
[FN51]. Id.
[FN52]. Id. at 1964-65. “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of
entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a
claimant could satisfy the requirement of providing not only ‘fair notice’ of the nature of the
claim, but also ‘grounds' on which the claim rests.” Id. at 1965 n.3.
[FN53]. Id. at 1965.
[FN54]. Id. at 1966.
[FN55]. Id. at 1969. “Conley's ‘no set of facts' language has been questioned, criticized, and
explained away long enough.... [A]fter puzzling the profession for 50 years, this famous
observation has earned its retirement. The phrase is best forgotten as an incomplete, negative
gloss on an accepted pleading standard: once a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the allegations in the complaint.” Id.
[FN56]. Id. at 1965.
[FN57]. Id. (“And, of course, a well-pleaded complaint may proceed even if it strikes a savvy
judge that actual proof of those facts is improbable, and ‘that a recovery is very remote and
unlikely.”’ (quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974))).
[FN58]. Id.
[FN59]. Id. at 1966.
[FN60]. Id. (“A statement of parallel conduct, even conduct consciously undertaken, needs some
setting suggesting the agreement necessary to make out a §1 claim; without that further
circumstance pointing toward a meeting of the minds, an account of a defendant's commercial
efforts stays in neutral territory.”).
[FN61]. Id.
[FN62]. Id.
[FN63]. Id. (“The need at the pleading stage for allegations plausibly suggesting (not merely
consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the ‘plain
statement’ possess enough heft to ‘sho[w] that the pleader is entitled to relief.”’ (quoting
47
Civ. P. 8(a)(2))).
[FN64]. Id.
[FN65]. Id. at 1967. (“Probably, then, it is only by taking care to require allegations that reach
the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of
discovery in cases with no ‘reasonably founded hope that the [discovery] process will reveal
relevant evidence’ to support a §1 claim.” (quoting Dura Pharm., Inc. v. Broudo, 544 U.S. 336,
347 (2005))).
[FN66]. Id.
[FN67]. Id.
[FN68]. Id. at 1969 (“[A] good many judges and commentators have balked at taking the literal
terms of the Conley passage as a pleading standard.”).
[FN69]. Id. at 1968. The Court concluded: “It seems fair to say that this approach to pleading
would dispense with any showing of a ‘reasonably founded hope’ that a plaintiff would be able
to make a case”; the plaintiff's “optimism would be enough.” Id. at 1969 (quoting Dura, 544 U.S.
at 347).
[FN70]. Id. (Conley did not describe “the minimum standard of adequate pleading to govern a
complaint's survival”).
[FN71]. Id. at 1973 n.14 (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)).
[FN72]. Id. at 1968 n.7 (Court concedes “it is time for a fresh look at adequacy of pleading when
a claim rests on parallel action”).
[FN73]. Id. at 1971-72. As to plaintiffs' first theory, the Court concluded “that nothing in the
complaint intimates that the resistance to the upstarts was anything more than the natural,
unilateral reaction of each ILEC intent on keeping its regional dominance.... [T]here is no reason
to infer that the companies had agreed among themselves to do what was only natural
anyway....” Id. at 1971. As to plaintiffs' second theory, the Court concluded the ILECs' parallel
conduct was not suggestive of conspiracy. Id. at 1972. While the Court conceded that sparse
competition among the ILECs “could very well signify illegal agreement,” because there was “an
obvious alternative explanation” available here, the Court concluded that the former was not
plausible. Id.
48
[FN74]. Id. at 1974.
[FN75]. 127 S. Ct. 2197 (2007).
[FN76]. Id. at 2200. Justice Scalia would have denied the petition for writ of certiorari and
Justice Thomas dissented on grounds unrelated to the pleading standard. Id.
[FN77]. Id. at 2199 (quoting Erickson v. Pardus, 198 F. App'x 694, 698 (10th Cir. 2006),
vacated, 127 S. Ct. 2197 (2007), reinstated in part, 238 F. App'x 335 (10th Cir. 2007)).
[FN78]. Id. at 2198.
[FN79]. Id. at 2200 (“It was error for the Court of Appeals to conclude that the allegations in
question, concerning harm caused petitioner by the termination of his medication, were too
conclusory to establish for pleading purposes that petitioner had suffered ‘a cognizable
independent harm’ as a result of his removal from the hepatitis C treatment program.” (quoting
Erickson, 198 F. App'x at 698)).
[FN80]. Id.
[FN81]. Id. (quoting Fed. R. Civ. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 196465 (2007)).
[FN82]. Id.
[FN83]. Id.
[FN84]. 129 S. Ct. 1937 (2009).
[FN85]. Id. at 1953 (“Our decision in Twombly expounded the pleading standard for ‘all civil
actions,’... and it applies to antitrust and discrimination suits alike.”).
[FN86]. Id. Rule 1 states, “These rules govern the procedure in all civil actions and proceedings
in the United States district courts, except as stated in Rule 81. They should be construed and
administered to secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1.
[FN87]. Iqbal, 129 S. Ct. at 1953.
[FN88]. Id. at 1943-44.
49
[FN89]. Id.
[FN90]. Id.
[FN91]. Id. at 1944.
[FN92]. Id.
[FN93]. Id.
[FN94]. Id.
[FN95]. Id. at 1949.
[FN96]. Id.
[FN97]. Id. at 1949-50.
[FN98]. See id. at 1950-51.
[FN99]. Id. at 1950.
[FN100]. Id.
[FN101]. Id. at 1951-52.
[FN102]. Id. at 1951 (“Taken as true, these allegations are consistent with petitioners'
purposefully designating detainees ‘of high interest’ because of their race, religion, or national
origin.”).
[FN103]. Id. (“But given more likely explanations, they do not plausibly establish this purpose.”
(emphasis added)); id. (“On the facts respondent alleges the arrests Mueller oversaw were likely
lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in
the United States and who had potential connections to those who committed terrorist acts.”
(emphasis added)).
[FN104]. Id.
[FN105]. Id. at 1951-52 (emphasis added).
50
[FN106]. Id. at 1952 (“To prevail on that theory, the complaint must contain facts plausibly
showing that petitioners purposefully adopted a policy of classifying post-September-11
detainees as ‘of high interest’ because of their race, religion, or national origin.”).
[FN107]. Id. at 1952, 1954.
[FN108]. See Papasan v. Allain, 478 U.S. 265, 286 (1986) (“[F]or the purposes of this motion to
dismiss we must take all the factual allegations in the complaint as true, we are not bound to
accept as true a legal conclusion couched as a factual allegation.”).
[FN109]. The Court states, “While legal conclusions can provide the framework of a complaint,
they must be supported by factual allegations.” Iqbal, 129 S. Ct. at 1950. However, in practice
the Court excises the legal conclusions from the complaint and considers only the factual
allegations in isolation to determine if Iqbal's complaint sets forth a plausible claim. The legal
conclusions must be considered in order to be supported by factual allegations.
[FN110]. See id. at 1951 (describing those allegations not given the presumption of truth). The
dissent explained: “[T]he majority discards the allegations discussed above with regard to
Ashcroft and Mueller as conclusory [PP 10, 11, 96], and is left considering only two statements
in the complaint.... And I agree that the two allegations selected by the majority [PP 47, 69],
standing alone, do not state a plausible entitlement to relief for unconstitutional discrimination.”
Id. at 1960 (Souter, J., dissenting); First Amended Complaint and Jury Demand at PP 10, 11, 47,
69, 96, Elmaghraby v. Ashcroft, No. 04 CV 1809 (JG)(JA), 2005 WL 2375202 (E.D.N.Y. Sept.
27, 2005). Not surprisingly, the same thing resulted when the Court applied this initial step in
Twombly. See id. at 1950.
[FN111]. In particular, Justice Souter stated: “But these allegations [PP 47, 69] do not stand
alone as the only significant, nonconclusory statements in the complaint, for the complaint
contains many allegations linking Ashcroft and Mueller to the discriminatory practices of their
subordinates.
“The majority says that these [PP 10, 11, 96] are ‘bare assertions'... and therefore are ‘not entitled
to be assumed true.’... The fallacy of the majority's position, however, lies in looking at the
relevant assertions in isolation.... Viewed in light of these subsidiary allegations [PP 47-53], the
allegations singled out by the majority as ‘conclusory’ [PP 10, 11, 96] are no such thing....
Taking the complaint as a whole, it gives Ashcroft and Mueller “‘fair notice of what the... claim
is and the grounds upon which it rests.”” ’ Iqbal, 129 S. Ct. at 1960-61 (Souter, J., dissenting)
(quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1959 (2007)); First Amended Complaint
and Jury Demand, supra note 110, at PP 10, 11, 47, 69, 96.
51
[FN112]. See Iqbal, 129 S. Ct. at 1961.
[FN113]. Id. at 1951-52.
[FN114]. See Twombly, 127 S. Ct. at 1976 (describing difficulty in distinguishing evidence,
facts, and conclusions); see Charles E. Clark, Handbook of the Law of Code Pleading 231 (2d
ed. 1947) (describing “attempted distinction between facts, law, and evidence” as a “convenient
distinction of degree”); Hartnett, supra note 8 (manuscript at 18-27) (describing difficulty in
making distinctions between evidentiary facts, ultimate facts, and legal conclusions required by
code pleading and consequent development of Federal Rules to address difficulty); Bone, supra
note 7, at 891 (2009) (same); Richard L. Marcus, The Revival of Fact Pleading Under the
Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 438 (1986) (same).
[FN115]. Justice Souter demonstrates this in his dissent: “[T]he majority's holding that the
statements it selects are conclusory cannot be squared with its treatment of certain other
allegations in the complaint as nonconclusory.... By my lights, there is no principled basis for the
majority's disregard of the allegations linking Ashcroft and Mueller to their subordinates'
discrimination.” Iqbal, 129 S. Ct. at 1961 (Souter, J., dissenting). See also Steinman, supra note 7
(manuscript at 6-7).
[FN116]. See Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 127 S. Ct. at 1965).
[FN117]. See id. at 1951 (citing First Amended Complaint and Jury Demand, supra note 110, PP
47, 69).
[FN118]. Id.
[FN119]. Id.
[FN120]. Id. (“The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who
counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al
Qaeda was headed by another Arab Muslim-- Osama bin Laden--and composed in large part of
his Arab Muslim disciples.”).
[FN121]. The Court concluded: “On the facts respondent alleges the arrests Mueller oversaw
were likely lawful and justified by his nondiscriminatory intent to detain aliens who were
illegally present in the United States and who had potential connections to those who committed
terrorist acts. As between that “obvious alternative explanation” for the arrests... and the
purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible
52
explanation.” Id. at 1951-52 (emphasis added).
[FN122]. Id. at 1951 (“Taken as true, these allegations are consistent with petitioners'
purposefully designating detainees ‘of high interest’ because of their race, religion, or national
origin. But given more likely explanations, they do not plausibly establish this purpose.”
(emphasis added)).
[FN123]. Id. at 1959 (Souter, J., dissenting).
[FN124]. Id. (emphasis added).
[FN125]. See id. at 1949 (“The plausibility standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a defendant has acted unlawfully.”).
[FN126]. Technically, there is no defined summary judgment “stage.” Rule 56(c)(1)(A) permits
the defendant to move for summary judgment “at any time until 30 days after the close of all
discovery.” Fed. R. Civ. P. 56(c)(1)(A). However, practically speaking, defendants will usually
move after discovery, once they have had ample opportunity to collect evidence supporting the
motion.
[FN127]. The summary judgment rule states, “The judgment sought should be rendered if the
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no
genuine issue as to any material fact and that the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(c)(2).
[FN128]. See supra note 126.
[FN129]. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007) (“[R]uling on a motion for
dismissal pursuant to Rule 12(b)(6) is not an occasion for the court to make findings of fact.”).
[FN130]. See Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice:
The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev.
(forthcoming 2010) (manuscript at 111-20); Access to Justice Denied: Ashcroft v. Iqbal: Hearing
Before the Subcomm. on the Constitution, Civil Rights, and Civil Liberties of the H. Comm. on
the Judiciary, 111th Cong. 6-7 (2009) [hereinafter Access to Justice Denied] (statement of Debo
P. Adegbile, Director of Litigation, NAACP Legal Defense & Education Fund, Inc.) (“In
contrast to Conley's ‘fair notice’ requirement, the stricter plausibility pleading standard in Iqbal
and Twombly compels plaintiffs to provide more of an evidentiary foundation to substantiate
their claims in order to withstand a defendant's motion to dismiss. Yet, because plaintiffs
typically can obtain discovery only if they survive a motion to dismiss, many will be denied the
53
very tools needed to support meritorious claims, and thus wrongdoers will escape
accountability.”). This concern has led various civil rights organizations to coordinate and
introduce legislation aimed at resurrecting the Conley “no set of facts” standard. See Notice
Pleading Restoration Act of 2009, S. 1504, 111th Cong. (2009); Open Access to the Courts Act
of 2009, H.R. 4115, 111th Cong. (2009). Other types of cases, such as antitrust, conspiracy,
products liability, and environmental claims face similar hurdles, but are beyond the scope of this
Article.
[FN131]. For an examination of the history of trans-substantivity of the Rules from their
inception in 1938 to the present, see Marcus, supra note 1.
[FN132]. See, e.g., Private Securities Litigation Reform Act, 15 U.S.C. §78u-4(b) (2006).
[FN133]. Fed. R. Civ. P. 9(b) states: “In alleging fraud or mistake, a party must state with
particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and
other conditions of a person's mind may be alleged generally.”
[FN134]. See Christopher M. Fairman, Heightened Pleading, 81 Tex. L. Rev. 551, 577-582, 62223 (2002) (describing lower court resistance to trans-substantivity in pleadings by utilizing
heightened pleading standard for certain actions); see, e.g., Kregler v. City of New York (Kregler
II), 646 F. Supp. 2d 570, 577 (S.D.N.Y. 2009) (noting problem of applying a “one-rule-fits-all”
pleading philosophy for various claims).
[FN135]. See, e.g., Stephen B. Burbank, Of Rules and Discretion: The Supreme Court, Federal
Rules and Common Law, 63 Notre Dame L. Rev. 693, 716-18 (1988); Stephen N. Subrin, Fudge
Points and Thin Ice in Discovery Reform and the Case for Selective Substance-Specific
Procedure, 46 Fla. L. Rev. 27, 45-56 (1994) (calling for substance-specific procedural rules). See
generally, Marcus, supra note 1 (manuscript at 6 n.17) (listing commentators on transsubstantivity).
[FN136]. For example, some have expressed concern over the impact amended Rule 11 has had
on civil rights claims. See Phyllis Tropper Baumann et al., Substance in the Shadow of
Procedure: The Integration of Substantive and Procedural Law in Title VII Cases, 33 B.C. L.
Rev. 211, 290-96 (1992) (describing Rule 11's disparate impact on civil rights litigation);
Marcus, supra note 1 (manuscript at 10) (describing how amended Rule 11 “had a particularly
dramatic impact in Title VII and other civil rights cases” because of a “number of recurring
features of this type of litigation--[including] the fact that evidence of discrimination is often in
the defendant's control”); Mark Spiegel, The Rule 11 Studies and Civil Rights Cases: An Inquiry
Into the Neutrality of Procedural Rules, 32 Conn. L. Rev. 155 (1999) (discussing studies
showing the neutrality of the Federal Rules, and how Rule 11 has had a chilling effect on civil
54
rights filings); Carl Tobias, Rule 11 and Civil Rights Litigation, 37 Buff. L. Rev. 485, 489-508
(1989) (discussing the adverse impact Rule 11 has had on civil rights cases).
[FN137]. See Moss v. U.S. Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009) (allowing amendment
of complaint in recognition that Twombly and Iqbal plausibility standard “is a significant
change, with broad-reaching implications”); Ocasio-Hernandez v. Fortuno-Burset, 639 F. Supp.
2d 217, 226 n.4 (D.P.R. 2009) (“As evidenced by this opinion, even highly experienced counsel
will henceforth find it extremely difficult, if not impossible, to plead a section 1983 political
discrimination suit without ‘smoking gun’ evidence. In the past, a plaintiff could file a complaint
such as that in this case, and through discovery obtain the direct and/or circumstantial evidence
needed to sustain the First Amendment allegations.”); Young v. City of Visalia, No. 1:09-CV115 AWI GSA, 2009 WL 2567847, at *6-7 (E.D. Cal. Aug. 18, 2009) (concluding “In light of
Iqbal, it would seem that the prior Ninth Circuit pleading standard for Monell claims (i.e. ‘bare
allegations') is no longer viable” and dismissing complaint that lacked facts sufficient to
plausibly state a valid Monell claim (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978))); Coleman v. Tulsa County Bd. of County Comm'rs, No. 08-CV-0081-CVE-FHM, 2009
WL 2513520, at *3 (N.D. Okla. Aug. 11, 2009) (dismissing Title VII hostile work environment
and retaliation claims, and noting that “[p]laintiff's second amended complaint may have
survived under Conley v. Gibson” for a claim that was conceivable but not plausible); Ansley v.
Florida Dep't of Revenue, No. 4:09CV161-RH/WCS, 2009 WL 1973548, at *2 (N.D. Fla. July 8,
2009) (dismissing Title VII employment discrimination case, and concluding: “These allegations
might have survived a motion to dismiss prior to Twombly and Iqbal. But now they do not.”);
Argeropoulos v. Exide Techs., No. 08-CV-3760 (JS), 2009 WL 2132443, at *6 (E.D.N.Y. July 8,
2009) (dismissing Title VII hostile work environment claim that might have survived Conley's
“no set of facts” standard, but fails under Iqbal because without more information about national
origin, animus claim is conceivable but not plausible); Kyle v. Holinka, No. 09-cv-90-slc, 2009
WL 1867671, at *1 (W.D. Wis. June 29, 2009) (“[Iqbal and Twombly] implicitly overturned
decades of circuit precedent in which the court of appeals had allowed discrimination claims to
be pleaded in a conclusory fashion.... Under the Supreme Court's new standard, an allegation of
discrimination needs to be more specific.”).
[FN138]. See, e.g., Olszewski v. Symyx Techs., Inc., No. C08-03657 HRL, 2009 WL 1814320,
at *3 (N.D. Cal. June 24, 2009) (dismissing ADEA age discrimination claim where plaintiff
“failed to plead facts that raise more than mere possibility that her age was the ‘but-for’ reason
for her termination” and not the massive layoff).
[FN139]. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007).
[FN140]. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) (“Taken as true, these allegations are
consistent with petitioners' purposefully designating detainees ‘of high interest’ because of their
55
race, religion, or national origin.”).
[FN141]. See id. (“On the facts respondent alleges the arrests Mueller oversaw were likely
lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in
the United States and who had potential connections to those who committed terrorist acts.”).
[FN142]. See Twombly, 127 S. Ct. at 1972.
[FN143]. See, e.g., Olszewski, 2009 WL 1814320, at *3.
[FN144]. Twombly, 127 S. Ct. at 1966.
[FN145]. Iqbal, 129 S. Ct. at 1950.
[FN146]. Form 11 states: “On date, at place, the defendant negligently drove a motor vehicle
against the plaintiff.” Fed. R. Civ. P., Form 11. Form 12 states: “On date, at place, defendant
name or defendant name or both of them willfully or recklessly or negligently drove, or caused
to be driven, a motor vehicle against the plaintiff.” Fed. R. Civ. P., Form 12.
[FN147]. See Hartnett, supra note 8 (manuscript at 29-30). Professor A. Benjamin Spencer
develops a compelling descriptive theory of pleading where a presumption of impropriety
determines the level of factual specificity necessary in pleadings post-Twombly. See A.
Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1, 13-18 (2009). As
Professor Spencer recognizes, “it appears that legal claims that apply liability to factual scenarios
that otherwise do not bespeak wrongdoing will be those that tend to require greater factual
substantiation to traverse the plausibility threshold.” Id. at 14.
[FN148]. But see, Branham v. Dolgencorp, Inc., No. 6:09-CV-00037, 2009 WL 2604447 (W.D.
Va. Aug. 24, 2009) (mem.), available at http://
www.vawd.uscourts.gov/opinions/moon/branhamdolgencorpmtd.pdf (dismissing negligence
claim under 12(b)(6) based on Twombly and Iqbal).
[FN149]. On a related note, under the Twombly-Iqbal approach for properly stating a claim, it is
hard to square how a court may dismiss a complaint because there is a more likely alternative
explanation for defendant's conduct than that alleged by the plaintiff with Rule 8's permissive
approach towards pleading in the alternative. Under Rule 8, it is the plaintiff's prerogative to “set
out 2 or more statements of a claim... alternatively or hypothetically,” Fed. R. Civ. P. 8(d)(2),
and “state as many separate claims... as it has, regardless of consistency.” Fed. R. Civ. P. 8(d)(3).
The plaintiff need only properly state a single claim for relief; even if she makes alternative
statements, only one has to be sufficient for the complaint to survive a 12(b)(6) dismissal.
56
R. Civ. P. 8(d)(2). The Rule's accommodating language suggests that the notice owed defendant
is general and flexible. Given the ease with which notice can conceivably be achieved under
provisions 8(d)(2) and (3), it is no wonder some scholars have concluded that notice pleading has
died post-Twombly. See A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. Rev. 431, 431
(2008) (“Notice pleading is dead.”); Scott Dodson, Pleading Standards After Bell Atlantic Corp.
v. Twombly, 93 Va. L. Rev. in Brief 121, 124-26 (2007).
[FN150]. See discussion infra Part III.B.1.c (regarding perceptions about the existence of race
discrimination in a “post-racial” Obama society).
[FN151]. See Access to Justice Denied, supra note 130, at 84-85 (statement of Debo P.
Adegbile) (“[T]he stricter plausibility pleading standard in Iqbal and Twombly compels plaintiffs
to provide more of an evidentiary foundation to substantiate their claims in order to withstand a
defendant's motion to dismiss. Yet, because plaintiffs typically can obtain discovery only if they
survive a motion to dismiss, many will be denied the very tools needed to support meritorious
claims....”).
[FN152]. See id. at 86 (“[D]iscovery is a particularly valuable and necessary tool in uncovering
the subtle and sophisticated forms of discrimination that have become more commonplace than
the more overt examples that once permeated our society.”).
[FN153]. See Natasha T. Martin, Immunity for Hire: How the Same-Actor Doctrine Sustains
Discrimination in the Contemporary Workplace, 40 Conn. L. Rev. 1117, 1138-61 (2008); id. at
1146 (“The reality is that the root of the discrimination remains concealed in the web of modern
workplace design, including work teams and collective decision-making processes.”); see also
Tristin K. Green, Work Culture and Discrimination, 93 Cal. L. Rev. 623, 646-648 (2005) (work
culture may perpetuate discrimination); Tristin K. Green, Targeting Workplace Context: Title
VII as a Tool for Institutional Reform, 72 Fordham L. Rev. 659, 661 (2003) [hereinafter Green,
Targeting Workplace Context] (class actions can “identify and address organizational sources of
discrimination”); Susan Sturm, Second Generation Employment Discrimination: A Structural
Approach, 101 Colum. L. Rev. 458, 460 (2001) (“‘Second generation’ claims involve social
practices and patterns of interaction among groups within the workplace that, over time, exclude
nondominant groups. Exclusion is frequently difficult to trace directly to intentional, discrete
actions of particular actors, and may sometimes be visible only in the aggregate. Structures of
decisionmaking, opportunity, and power fail to surface these patterns of exclusion, and
themselves produce differential access and opportunity.”).
[FN154]. For example, the Third Circuit in Aman v. Cort Furniture Rental Corp. concluded:
“Anti-discrimination laws and lawsuits have “educated” would-be violators such that extreme
manifestations of discrimination are thankfully rare. Though they still happen, the instances in
57
which employers and employees openly use derogatory epithets to refer to fellow employees
appear to be declining. Regrettably, however, this in no way suggests that discrimination based
upon an individual's race, gender, or age is near an end. Discrimination continues to pollute the
social and economic mainstream of American life, and is often simply masked in more subtle
forms. It has become easier to coat various forms of discrimination with the appearance of
propriety, or to ascribe some other less odious intention to what is in reality discriminatory
behavior. In other words, while discriminatory conduct persists, violators have learned not to
leave the proverbial ‘smoking gun’ behind....
“The sophisticated would-be violator has made our job a little more difficult. Courts today must
be increasingly vigilant in their efforts to ensure that prohibited discrimination is not approved
under the auspices of legitimate conduct....” 85 F.3d 1074, 1081-82 (3d Cir. 1996); see also
Riordan v. Kempiners, 831 F.2d 690, 697 (7th Cir. 1987) (“Defendants of even minimal
sophistication will neither admit discriminatory animus nor leave a paper trail demonstrating
it....”).
[FN155]. See Green, Targeting Workplace Context, supra note 153, at 659 (“Individuals
discriminate, but they do so in a situated context. Their discriminatory decisions take place as
part of a complex web of interrelated social expectancies and taken-for-granted institutionalized
practices that influence their interpretations, constrain their options, and normalize their
outcomes.”); see also Devon W. Carbado & Mitu Gulati, Working Identity, 85 Cornell L. Rev.
1259, 1268-69 (2000) (addressing the unintended consequences of stereotypes, even positive
ones, that result in assumptions about one's ability to perform a certain skill set and be selected
for a specific position); David Benjamin Oppenheimer, Understanding Affirmative Action, 23
Hastings Const. L.Q. 921, 957 (1996) (“[I]t appears that by age six, non-white children have
internalized the racism of our society. This observation was manifested further in another study
where non-white kindergarten and second grade children were found to identify with pictures of
white children as those most like themselves, most like they wanted to be, and most like they
would want their friends to be.”); Michael Selmi, Response to Professor Wax, Discrimination as
Accident: Old Whine, New Bottle, 74 Ind. L.J. 1233, 1238 (1999) (describing how encouraging
women to act more “feminine” can be a form of subconscious discrimination); Terry Smith,
Everyday Indignities: Race, Retaliation, and the Promise of Title VII, 34 Colum. Hum. Rts. L.
Rev. 529, 540-44 (2003) (detailing the accounts of two African-Americans subjected to subtle
discrimination in the workplace).
[FN156]. See Melissa Hart, Subjective Decisionmaking and Unconscious Discrimination, 56
Ala. L. Rev. 741, 743 (2005) (“Contemporary sociological and psychological research reveals
that discriminatory biases and stereotypes are pervasive, even among well-meaning people. In
fact, recent studies have focused particular attention on the unconscious biases of people whose
consciously held beliefs are strongly egalitarian.”); see also John F. Dovidio et al., Why Can't
58
We Just Get Along? Interpersonal Biases and Interracial Distrust, 8 Cultural Diversity & Ethnic
Minority Psychol. 88, 94 (2002); John F. Dovidio, On the Nature of Contemporary Prejudice:
The Third Wave, 57 J. Soc. Issues 829, 831 (2001); John F. Dovidio & Samuel L. Gaertner,
Aversive Racism and Selection Decisions: 1989 and 1999, 11 Psychol. Sci. 315, 315 (2000)
(“[M]any people who explicitly support egalitarian principles and believe themselves to be
nonprejudiced also unconsciously harbor negative feelings and beliefs about blacks and other
historically disadvantaged groups.”); Linda Hamilton Krieger, The Content of Our Categories: A
Cognitive Bias Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L.
Rev. 1161, 1164, 1186-88 (1995); Charles R. Lawrence III, The Id, the Ego, and Equal
Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 322 (1987) (“[W]e are
all racists.”); David Benjamin Oppenheimer, Negligent Discrimination, 141 U. Pa. L. Rev. 899,
901-02 (1993) (“‘Thus, through personal and cultural experience the individual comes to
associate characteristics such as “intelligence,” “laziness,” “honesty,” or “dirtiness” with
classifications of people.’ Since our ‘categorization’ of people is learned and experienced at a
very young age, we may not be conscious of having internalized those feelings and beliefs.”
(quoting Lawrence, supra, at 337-39)).
[FN157]. See Roy L. Brooks, Conley and Twombly: A Critical Race Theory Perspective, 52
How. L.J. 31, 68-69 (2008). Professor Roy L. Brooks explains: “[The Plausibility pleading rule]
disadvantages the prosecution of civil rights cases because it imposes a difficult, if not
impossible, burden on the plaintiff to make specific factual allegations about evidence (or
‘proof’) known only to defendants. For example, evidence of discriminatory animus or
institutional practices is typically not revealed to the plaintiff until discovery; yet, under the
[plausibility pleading rule], the plaintiff is forced to plead such undiscovered evidence or face
early dismissal of his or her civil rights claim. Cases are dismissed without ever reaching the
merits.” Id. at 58 (footnotes omitted). See also Douglas A. Blaze, Presumed Frivolous:
Application of Stringent Pleading Requirements in Civil Rights Litigation, 31 Wm. & Mary L.
Rev. 935, 957 (1990) (discussing Strauss v. City of Chicago, 760 F.2d 765, 770 (7th Cir. 1985),
and noting that plaintiff would not normally have the requisite factual predicate to show the city
had a “custom and practice” of discrimination pre-discovery, thereby making it “nearly
impossible” for his civil rights claim to escape 12(b)(6) dismissal).
[FN158]. 127 S. Ct. 2162, 2177 (2007) (holding plaintiff's claim was barred because of the
statute of limitations).
[FN159]. Id. at 2165-66.
[FN160]. Pay information is often confidential, and disparities in pay may not evince
discrimination until years of salary data can be accumulated. Id. at 2178-79, (Ginsburg, J.,
dissenting); see Leonard Bierman & Rafael Gely, “Love, Sex and Politics? Sure. Salary? No
59
Way”: Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. L. 167, 168 (2004)
(discussing how social norms and corporate policy may discourage discussion of salaries in the
workplace and citing, for example, that one-third of U.S. private sector employers have policies
prohibiting employees from discussing salaries).
[FN161]. Ledbetter, 127 S. Ct. at 2182.
[FN162]. The effect of this holding was ultimately reversed by the Lilly Ledbetter Fair Pay Act
of 2009, Pub. L. No. 111-2, 123 Stat. 5 (2009) (codified as amended in scattered sections of 29
and 42 U.S.C.).
[FN163]. Other claimants may also experience informational inequities and therefore be
potentially adversely affected by the plausibility pleading standard. They include those who file
antitrust, conspiracy, product liability, and environmental claims. However, a full examination of
these other areas is beyond the scope of this Article.
[FN164]. See Spencer, supra note 147, at 26 (“[A] standard that dismisses valid claims at the
very front end of the system based on an inability to offer facts that claimants are, at this early
stage, unlikely or unable to know blocks access to the courts in a way that is fundamentally
improper.”); Dodson, supra note 149, at 138-39 (noting same in antitrust context); Ettie Ward,
The After-Shocks of Twombly: Will We “Notice” Pleading Changes?, 82 St. John's L. Rev. 893,
912 (2008); Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two
Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B.U. L. Rev.
1217, 1261-62 (2008) (criticizing Twombly for “informational asymmetries”); see, e.g., Ibrahim
v. Dep't of Homeland Sec., No. C 06-00545, 2009 WL 2246194, at *10 (N.D. Cal. July 27, 2009)
(“A good argument can be made that the Iqbal standard is too demanding. Victims of
discrimination and profiling will often not have specific facts to plead without the benefit of
discovery.”).
[FN165]. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
[FN166]. Access to Justice Denied, supra note 130, at 17 (statement of Arthur Miller, Professor,
New York University) (“The subjectivity at the heart of Twombly-Iqbal raises the concern that
rulings on motions to dismiss may turn on individual ideology regarding the underlying
substantive law, attitudes toward private enforcement of federal statutes, and resort to extrapleading matters hitherto far beyond the scope of a Rule 12(b)(6) motion to dismiss. As a result,
inconsistent rulings on virtually identical complaints may well be based on judges' disparate
subjective views of what allegations are plausible. Courts already have differed on issues that
were once settled.”); see also al-Kidd v. Ashcroft, 580 F.3d 949, 977 (9th Cir. 2009) (“PostTwombly, plaintiffs face a higher burden of pleading facts, and courts face greater uncertainty in
60
evaluating complaints.”).
[FN167]. See Hartnett, supra note 8 (manuscript at 32) (“Different judges with different life
experiences can be expected to view plausibility differently because they have a different
understanding of what is ordinary, commonplace, natural, a matter of common sense.”).
[FN168]. See Access to Justice Denied, supra note 130, at 90 (statement of Debo P. Adegbile)
(“Iqbal has provided little guidance as to what factors courts should use to determine
‘plausibility'--apart from a vague instruction to rely on ‘judicial experience and common
sense.”’).
[FN169]. See id. at 17 (statement of Arthur Miller); and supra note 166. See also Hartnett, supra
note 8 (manuscript at 31-38, 55) (describing how judges' different baseline assumptions may lead
to differing perceptions of plausibility, especially in discrimination cases, thereby warranting
litigants to provide courts with relevant social science research).
[FN170]. See Gary Langer & Peyton M. Craighill, Fewer Call Racism a Major Problem Though
Discrimination Remains, ABC News, Jan. 18, 2009, http://
abcnews.go.com/PollingUnit/Politics/story?id=6674407&page=1 (“[African-Americans] remain
twice as likely as whites to call racism a big problem (44 percent vs. 22 percent), and only half as
likely to say African-Americans have achieved equality.”); K.A. Dixon et al., Ctr. for Workplace
Dev., A Workplace Divided: How Americans View Discrimination and Race on the Job 8
(2002), available at http://
www.heldrich.rutgers.edu/uploadedFiles/Publications/work_trends_020107.pdf (finding that
African-American employees are five times more likely than their white counterparts to believe
that African-Americans are the most likely victims of discrimination; 50% of African-American
employees believe employment practices are fair, in comparison to 90% of their white
counterparts); Kevin Sack & Janet Elder, Appendix, The New York Times Poll on Race:
Optimistic Outlook But Enduring Racial Division, in How Race Is Lived in America 385 (2001)
(44% of African-Americans believe they are treated less fairly than whites in the workplace,
while 73% of whites believe African-Americans are treated fairly).
[FN171]. See, e.g., PBS Newshour: Debate on Race Emerges as Obama's Policies Take Shape
(PBS television broadcast Sept. 16, 2009) [hereinafter PBS Newshour], available at
http://www.pbs.org/newshour/bb/politics/july-dec09/rage_09-16.html; Philip Rucker, In S.C.,
One Road Divides Two Ways of Thinking, Wash. Post, Sept. 22, 2009, at A1 (describing
varying opinions on the continued existence of racism after Obama's election and the role of race
in opposition to him).
[FN172]. See Ian F. Haney López, Post-Racial Racism: Policing Race in the Age of Obama,
61
(forthcoming 2010) (manuscript at 142, 147), available at http:// ssrn.com/abstract=1418212
(“Partly through colorblindness and partly through the accumulated weight of cultural beliefs and
historical practices, most Americans accept that major American institutions are race-neutral and
that these institutions produce vast racial disparities.”); see, e.g., PBS Newshour, supra note 171.
For example, in a discussion among columnists and academics with Gwen Ifill, Democratic
Polster Cornell Belcher concluded: “We're two very different countries racially, where right now
you have a majority of whites who, frankly, do think we're post-racial because they think
African-Americans have the same advantages as they do, while African-Americans do not. And
you have a large swath of whites right now who are just as likely to see reverse discrimination as
an issue as classic discrimination.” Id. But see Associated Press, Ex-President Sees Racism in
Outburst, N.Y. Times, Sept. 16, 2009, at A14 (attributing Joe Wilson's outburst during President
Obama's health care speech as “based on racism” and noting that “[t]here is an inherent feeling
among many in this country that an African-American should not be president”); Jeffrey M.
Jones, Majority of Americans Say Racism Against Blacks Widespread, Gallup, Aug. 4, 2008,
http://www.gallup.com/poll/109258/Majority-Americans-Say-Racism-Against-BlacksWidespread.aspx.
[FN173]. Indeed, this presumption may have germinated far earlier. See Vicki Schultz &
Stephen Petterson, Race, Gender, Work, and Choice: An Empirical Study of the Lack of Interest
Defense in Title VII Cases Challenging Job Segregation, 59 U. Chi. L. Rev. 1073, 1180 (1992)
(“After a decade of efforts to enforce Title VII, federal judges apparently began to share the
general public's belief that employment discrimination against minorities had been largely
eradicated.”).
[FN174]. Michael Selmi, Subtle Discrimination: A Matter of Perspective Rather than Intent, 34
Colum. Hum. Rts. L. Rev. 657, 675 (2003); see also Access to Justice Denied, supra note 130, at
90 (statement of Debo P. Adegbile) (“Because this new plausibility standard appears
dangerously subjective, it could have a potentially devastating effect in civil rights cases that
come before judges who may, based on the nature of their personal experiences, fail to recognize
situations in which discrimination or other constitutional wrongs require redress.”).
[FN175]. See, e.g., Valley v. Maule, 297 F. Supp. 958, 960-61 (D. Conn. 1968) (“A substantial
number of these cases are frivolous or should be litigated in the State courts; they all cause
defendants--public officials, policemen and citizens alike--considerable expense, vexation and
perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and
insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts
open to legitimate claims.”).
[FN176]. See Blaze, supra note 157, at 950-51, 956-57 (attributing courts' creation of “special”
pleading rule for civil rights cases in part to perception that such claims were frivolous); see also
62
Maule, 297 F. Supp. at 960-61 (citing cases). The courts' application of a heightened pleading
standard for civil rights cases is well documented. See generally Spencer, supra note 7
(describing historical application of heightened pleading standard in civil rights cases);
Christopher M. Fairman, The Myth of Notice Pleading, 45 Ariz. L. Rev. 987, 1027-32 (2003);
Fairman, supra note 134, at 576; Richard L. Marcus, The Puzzling Persistence of Pleading
Practice, 76 Tex. L. Rev. 1749, 1750-52, 1759 (1998); Blaze, supra note 157, at 956-57; C. Keith
Wingate, A Special Pleading Rule for Civil Rights Complaints: A Step Forward or a Step Back?,
49 Mo. L. Rev. 677, 688-89 (1984).
[FN177]. See discussion supra Part II.B-C.
[FN178]. See generally, Kevin M. Clermont & Stewart J. Schwab, Employment Discrimination
Plaintiffs in Federal Court: From Bad to Worse?, 3 Harv. L. & Pol'y Rev. 103 (2009).
[FN179]. Id. at 113. In particular, from 1979 to 2006, the plaintiff success rate for such cases was
19.62%, while the plaintiff success rate for other types of cases was 45.53%. Id. at 130. See also
Michael Selmi, Why Are Employment Discrimination Cases So Hard to Win?, 61 La. L. Rev.
555, 560-61 (2001) (indicating that in employment discrimination cases, plaintiffs are “half as
successful when their cases are tried before a judge than a jury, and success rates are more than
fifty percent below the rate of other claims”).
[FN180]. Clermont & Schwab, supra note 178, at 110. In particular, from 1988 to 2004, the
percentage of appeals reversed after plaintiffs' trial wins was 41.10%, while those after
defendants' trial wins was 8.72%.
[FN181]. Id. at 115. The perception that civil rights claims are largely frivolous may be fueled in
part by the significant number of such claims filed by prisoners, a phenomenon which has
diminished but not disappeared under the Prison Litigation Reform Act (PLRA). See CrawfordEl v. Britton, 523 U.S. 574, 597 n.18 (1998) (describing drop in prisoner case filings since the
enactment of the PLRA). Assuming arguendo that prisoners' civil rights claims are largely
meritless and that they could be more quickly disposed of by a plausibility standard, this does not
justify throwing the baby out with the bathwater. Not all civil rights claims should suffer the
same fate by way of Iqbal, simply because frivolous litigation by prisoners would be curtailed.
Moreover, given the generous pleading standard available to pro se prisoners-- recently
discussed in Erickson v. Pardus--it is not at all clear that the Twombly-Iqbal pleading standard
would have this brush-clearing effect. See discussion supra Part II.E.
[FN182]. Hart, supra note 156, at 790 (“Unfortunately for Title VII plaintiffs, the hostility of the
federal judiciary to employment discrimination claims has been widely recognized.”); see also
Mark S. Brodin, The Demise of Circumstantial Proof in Employment Discrimination Litigation:
63
St. Mary's Honor Center v. Hicks, Pretext, and the “Personality” Excuse, 18 Berkeley J. Emp. &
Lab. L. 183, 186 (1997) (describing judicial propensity to assume personality clash as basis for
employer's adverse action rather than unconscious bias and stereotyping); Chad Derum & Karen
Engle, The Rise of the Personal Animosity Presumption in Title VII and the Return to “No
Cause” Employment, 81 Tex. L. Rev. 1177, 1179, 1196 (2003) (describing shift in judicial
attitude from racism to personal animosity as presumptive explanation for an employer's adverse
action in the absence of evidence); John H. Doyle et al., Report of the Working Committees to
the Second Circuit Task Force on Gender, Racial and Ethnic Fairness in the Courts, 1997 Ann.
Surv. Am. L. 117, 342 (1997) (describing federal judges' dislike of employment cases);
Catherine J. Lanctot, Secrets and Lies: The Need for a Definitive Rule of Law in Pretext Cases,
61 La. L. Rev. 539, 546 (2001) (“[C]ourts will exploit any loopholes provided by the Supreme
Court to dismiss what they consider to be unmeritorious discrimination suits.”); Leland Ware,
Inferring Intent from Proof of Pretext: Resolving the Summary Judgment Confusion in
Employment Discrimination Cases Alleging Disparate Treatment, 4 Emp. Rts. & Emp. Pol'y J.
37, 63 (2000) (discussing “the reluctance and doubt that greet claims asserted by civil rights
plaintiffs” by judges); Michael J. Zimmer, Systemic Empathy, 34 Colum. Hum. Rts. L. Rev. 575,
585 (2003) (describing “unsympathetic” application of Title VII by the courts).
[FN183]. See Donald C. Nugent, Judicial Bias, 42 Clev. St. L. Rev. 1, 4-5 (1994). Nugent
explains:
“Ideally, judges reach their decisions utilizing facts, evidence, and highly constrained legal
criteria, while putting aside personal biases, attitudes, emotions, and other individuating factors.
This ideal, however, while appealing to most judges, does not coincide with the findings of
behavioral scientists, whose research has shown that human beings rarely, if ever, conform to
such idealistic principles....
....
“[I]t is exactly through this blind faith in their impartiality that judges may gain a false sense of
confidence in their decisions. They may fail to take into account the unavoidable influences we
all experience as human beings and disregard the limits of human nature and the difficulty of
bringing to the conscious level subjective motivations, beliefs and predilections.” Id.
See Hart, supra note 156, at 789 & n.253 (citing literature); see, e.g., Jerome Frank, What Courts
Do In Fact, 26 Ill. L. Rev. 645 (1932); Karl N. Llewellyn, A Realistic Jurisprudence--The Next
Step, 30 Colum. L. Rev. 431, 432, 447 n.12, 452 n.19, (1930); Joseph C. Hutcheson, Jr., The
Judgment Intuitive: The Function of the “Hunch” in Judicial Decision, 14 Cornell L.Q. 274, 27576, 277-79, 285 (1929); Max Radin, The Theory of Judicial Decision: Or How Judges Think, 11
A.B.A. J. 357, 358-60 (1925). See also Schultz & Petterson, supra note 173, at 1167 (“There is
little disagreement that judges' political, social, and personal values may affect their decisions.”);
Howard T. Hogan, Some Thoughts on Juries in Civil Cases, 50 A.B.A. J. 752, 753 (1964) (“Our
64
judgment of issues of fact must always be based in part upon what we, as individuals, are--the
sum total of our experiences, our backgrounds, our prejudices and our limitations.”).
Formalists, on the other hand, describe judicial decision-making as a mechanical and deliberate
application of the law to the facts. See Brian Leiter, Positivism, Formalism, Realism, 99 Colum.
L. Rev. 1138, 1145-46 (1999) (book review); Burt Neuborne, Of Sausage Factories and
Syllogism Machines: Formalism, Realism, and Exclusionary Selection Techniques, 67 N.Y.U. L.
Rev. 419, 420-21 (1992).
[FN184]. See Hart, supra note 156, at 745 & n.21 (“Extensive social psychological literature
documents the ways in which unconscious racism and sexism, and the consequent stereotyping,
operate in employment decisionmaking.” (citing scholarship)); Martin, supra note 153, at 1158
(“The complex entanglement of power and stereotyping, particularly in environments imbued
with cultural cues, potentially affects engagement and decision-making within organizations in
profound ways.”); Tracy Anbinder Baron, Comment, Keeping Women Out of the Executive
Suite: The Courts' Failure to Apply Title VII Scrutiny to Upper-Level Jobs, 143 U. Pa. L. Rev.
267, 281-82 (1994) ( “Because subjective decision-making gives the decision-maker
considerably more personal discretion, the process becomes more susceptible to the expression
of the unconscious biases....”); see also Susan T. Fiske et al., Social Science Research on Trial:
Use of Sex Stereotyping Research in Price Waterhouse v. Hopkins, 46 Am. Psychol. 1049, 1050
(1991); Amy L. Wax, Discrimination as Accident, 74 Ind. L.J. 1129, 1137 (1999) (“The potential
for these types of cognitive mechanisms to play a role would be greatest when assessments have
an important subjective component....”).
[FN185]. See Baron, supra note 184, at 281-82 (addressing how “subjective assessments of the
candidate's previous performance and future potential” allow for biased assumptions that
ultimately reinforce the “glass ceiling” and bar women from high-ranking positions); Fiske et al.,
supra note 184, at 1050 (“[S]ubjective judgments of interpersonal skills and collegiality are quite
vulnerable to stereotypic biases.”).
[FN186]. Hart, supra note 156, at 767 & n.132 (“Every court of appeals in the federal system has
recognized that ‘subjective evaluations “are more susceptible of abuse and more likely to mask
pretext,”’ and a demonstration of excessive reliance on subjective criteria has been accepted as
evidence supporting an inference of discrimination.” (quoting Weldon v. Kraft, Inc., 896 F.2d
793, 798 (3d Cir. 1990))); see also Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1218 (10th
Cir. 2002) (“Courts view with skepticism subjective evaluation methods....”); Walker v. N.Y.
State Office of Mental Health, No. 97-7367, 1998 WL 639392, at *2 (2d Cir. Apr. 6, 1998)
(“[G]reater possibilities for abuse are inherent in the utilization of such subjective values.”);
Waltman v. Int'l Paper Co., 875 F.2d 468, 482 (5th Cir. 1989) (noting that using “highly
subjective” criteria for promotion decisions “makes it easier to discriminate”); Bell v. Bolger,
65
708 F.2d 1312, 1319-20 (8th Cir. 1983) (“[S]ubjective promotion procedures are to be closely
scrutinized because of their susceptibility to discriminatory abuse.”); Thomas v. Troy City Bd. of
Educ., 302 F. Supp. 2d 1303, 1309 (M.D. Ala. 2004) (“Such subjective decision-making
processes are particularly susceptible to being influenced not by overt bigotry and hatred, but
rather by unexamined assumptions about others that the decisionmaker may not even be aware
of....”).
[FN187]. 487 U.S. 977, 990 (1988).
[FN188]. Hart, supra note 156, at 772 & n.160 (citing cases); see Denney v. City of Albany, 247
F.3d 1172, 1186 (11th Cir. 2001) (“It is inconceivable that Congress intended anti-discrimination
statutes to deprive an employer of the ability to rely on important criteria in its employment
decisions merely because those criteria are only capable of subjective evaluation.”); Goosby v.
Johnson & Johnson Med., Inc., 228 F.3d 313, 321 (3d Cir. 2000) (“[A] plaintiff can not
ultimately prove discrimination merely because his/her employer relied upon highly subjective
qualities... in making an employment decision.”); Sattar v. Motorola, Inc., 138 F.3d 1164, 1170
(7th Cir. 1998) (“[N]othing in Title VII bans outright the use of subjective evaluation criteria.”);
Jauregui v. City of Glendale, 852 F.2d 1128, 1135 (9th Cir. 1988) (“The use of subjective factors
to evaluate applicants for hire or promotion is not illegal per se.”); Vitug v. Multistate Tax
Comm'n, 88 F.3d 506, 514 (7th Cir. 1986) (“Title VII does not forbid subjective selection
processes.”).
Consequently, plaintiffs alleging intentional discrimination often need evidence in addition to
subjective criteria to obtain class certification and to prevail on the merits. Hart, supra note 156,
at 774, 779 (citing cases); see, e.g., Millbrook v. IBP, Inc., 280 F.3d 1169, 1176 (7th Cir. 2002)
(“[A]bsent evidence that subjective hiring criteria were used as a mask for discrimination, the
fact that an employer based a hiring or promotion decision on purely subjective criteria will
rarely, if ever, prove pretext under Title VII.” (internal quotation marks omitted) (quoting
Denney, 247 F.3d at 1185)); Dukes v. Wal-Mart Stores, Inc., 222 F.R.D. 137, 149-50 (N.D. Cal.
2004) (stating that “where, as here, [excessive] subjectivity is part of a consistent corporate
policy and supported by other evidence giving rise to an inference of discrimination, courts have
not hesitated” to certify the class (emphasis added)).
[FN189]. See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1033 (11th Cir. 2000) (“[S]ubjective
evaluations of a job candidate are often critical to the decisionmaking process....”); Sengupta v.
Morrison-Knudsen Co., 804 F.2d 1072, 1075 (9th Cir. 1986) (describing subjective criteria as
“indispensable” to decision-making process in “many situations”).
[FN190]. Hart, supra note 156, at 772 & n.160, 773 & n.164 (citing cases).
66
[FN191]. See, e.g., Watson, 487 U.S. at 999 (“It is self-evident that many jobs, for example those
involving managerial responsibilities, require personal qualities that have never been considered
amenable to standardized testing. In evaluating claims that discretionary employment practices
are insufficiently related to legitimate business purposes, it must be borne in mind that ‘[c]ourts
are generally less competent than employers to restructure business practices, and unless
mandated to do so by Congress they should not attempt it.”’ (quoting Furnco Constr. Corp. v.
Waters, 438 U.S. 567, 578 (1978))).
[FN192]. Hart, supra note 156, at 788 (“When an employer permits largely uncabined discretion
to its supervisors, the risk of the pervasive operation of unconscious biases and stereotypes in
decisionmaking is considerable.”).
[FN193]. Chris Guthrie et al., Blinking on the Bench: How Judges Decide Cases, 93 Cornell L.
Rev. 1, 43 (2007) (“Despite their best efforts... judges, like everyone else, have two cognitive
systems for making judgments--the intuitive and the deliberative--and the intuitive system
appears to have a powerful effect on judges' decision making.”); id. at 6 (“Our results
demonstrate that judges, like others, commonly make judgments intuitively, rather than
reflectively, both generally and in legal contexts.”); see also R. George Wright, The Role of
Intuition in Judicial Decisionmaking, 42 Hous. L. Rev. 1381, 1420 (2006) (“Deciding judicial
cases inescapably requires the exercise of intuition.”). See generally Malcolm Gladwell, Blink:
The Power of Thinking Without Thinking (2005).
[FN194]. Guthrie et al., supra note 193, at 29 (“The intuitive approach to decision making is
quick, effortless, and simple, while the deliberative approach to decision making is slow,
effortful, and complex. The obvious advantage of the former is its speed; judges with heavy
dockets can rely on intuition to make judgments quickly.”).
[FN195]. Id. at 31 (quoting Amos Tversky & Daniel Kahneman, Judgment under Uncertainty:
Heuristics and Biases, 185 Sci. 1124, 1124 (1974)); id. at 43 (“The intuitive approach might
work well in some cases, but it can lead to erroneous and unjust outcomes in others.”).
[FN196]. Id. at 31.
[FN197]. Id. (footnote omitted); id. at 5 (“[J]udges are predominantly intuitive decision makers,
and intuitive judgments are often flawed.... [I]ntuition is generally more likely than deliberation
to lead judges astray. We suspect this happens with some frequency, but even if it is uncommon,
millions of litigants each year might be adversely affected by judicial overreliance on intuition.”
(footnote omitted)); see also Christine Jolls & Cass R. Sunstein, The Law of Implicit Bias, 94
Cal. L. Rev. 969, 971 (2006) (explaining how the Implicit Association Test reveals that the
majority of people make decisions based, at least in part, on biased assumptions of race or
67
gender); Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1512-14 (2005) (describing
implicit bias revealed through association tests performed); Jerry Kang & Mahzarin R. Banaji,
Fair Measures: A Behavioral Realist Revision of “Affirmative Action,” 94 Cal. L. Rev. 1063,
1072 (2006) (75% of men and women did not associate female with career as readily with
family).
[FN198]. Guthrie et al., supra note 193, at 35 (“Judges facing cognitive overload due to heavy
dockets or other on-the-job constraints are more likely to make intuitive rather than deliberative
decisions because the former are speedier and easier.”).
[FN199]. Id. at 4-5 & nn.16-17.
[FN200]. Id. at 32.
[FN201]. Id. at 5, 27-29.
[FN202]. Id. at 43 (emphasis added) (footnote omitted) (quoting Nugent, supra note 183, at 4);
see also Access to Justice Denied, supra note 130, at 91-92 (statement of Debo P. Adegbile)
(“While experience can inform a judge's assessment of a case, it is precisely because judges
come to the bench with differing life experiences that rules promoting greater objectivity and
reliance upon the introduction of facts are preferred.”). While noting the prevalence of intuition,
the authors also concluded that judges can and do override it with deductive reasoning at times,
resulting in more just outcomes. Guthrie et al., supra note 193, at 3, 9, 13, 18, 19, 27-29. But see
id. at 37-38 & n.187 (citing studies that conclude deliberation can result in inferior outcomes
than those from intuition where aesthetic judgment is involved).
[FN203]. See Nugent, supra note 183, at 4 (noting judges' efforts to “reach their decisions
utilizing facts, evidence, and highly constrained legal criteria, while putting aside personal
biases, attitudes, emotions, and other individuating factors”). But see Geoffrey P. Miller, Bad
Judges, 83 Tex. L. Rev. 431, 431 (2004) (describing “bad judges” as those who are
“incompetent, self-indulgent, abusive, or corrupt”).
[FN204]. See Access to Justice Denied, supra note 130, at 85 (statement of Debo P. Adegbile)
(“[W]rongdoers will escape accountability.”).
[FN205]. See Suzette M. Malveaux, Statutes of Limitations: A Policy Analysis in the Context of
Reparations Litigation, 74 Geo. Wash. L. Rev. 68, 84 (2005) (“[T]he federal judicial system has
often protected minorities and other disenfranchised groups from the tyranny of local
government and private actors.”); see also England v. La. State Bd. of Med. Exam'rs, 375 U.S.
411, 427 (1964) (Douglas, J., concurring) (“[F]ederal judges appointed for life are more likely to
68
enforce the constitutional rights of unpopular minorities than elected state judges.”); United
States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938) (“[P]rejudice against discrete and
insular minorities may be a special condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to protect minorities, and which may call for
a correspondingly more searching judicial inquiry.”).
[FN206]. 639 F. Supp. 2d 217, 219-20 (D.P.R. 2009).
[FN207]. Id. at 226 n.4.
[FN208]. Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 460 (2006); Holmes v. Sec. Investor
Prot. Corp., 503 U.S. 258, 269-70 (1992); Evans v. Jeff D., 475 U.S. 717, 745 (1986) (“Congress
provided fee awards to ensure that there would be lawyers available to plaintiffs who could not
otherwise afford counsel, so that these plaintiffs could fulfill their role in the federal enforcement
scheme as ‘private attorneys general,’ vindicating the public interest.”).
[FN209]. Tyler T. Ochoa & Andrew J. Wistrich, The Puzzling Purposes of Statutes of
Limitations, 28 Pac. L.J. 453, 502-03 (1997). For example, plaintiffs alleging employment
discrimination under Title VII of the Civil Rights Act of 1964 have played an important
enforcement role in light of the Equal Employment Opportunity Commission's (EEOC)
diminished capacity to handle such claims. The EEOC--the administrative agency tasked with
enforcement--has been underfunded and overburdened for over a decade. See Will Obama's
pledge become reality for people with disabilities?, 12 Fed. EEO Advisor, Mar. 1, 2009 (“EEOC
is processing the most claims it has had since opening its doors in 1965.”); Steve Vogel, EEOC
Confronts Growing Backlog, Dwindling Staff, Wash. Post, Feb. 3, 2009, at A13 (declaring that
EEOC is “facing its largest caseload in at least a quarter-century” resulting in an “overwhelmed
workforce”). Consequently, this “resource starved” institution's capacity to effectively resolve
work place disputes has been severely compromised. See Suzette M. Malveaux, Is It the “Real
Thing”? How Coke's One-Way Binding Arbitration May Bridge the Divide Between Litigation
and Arbitration, 2009 J. Disp. Resol. 77, 126-28 (2009) (describing agency problems); see also
Michael Selmi, The Value of the EEOC: Reexamining the Agency's Role in Employment
Discrimination Law, 57 Ohio St. L.J. 1, 64 (1996) (concluding in 1996 that “the agency is clearly
a failure, serving in some instances as little more than an administrative obstacle to resolution of
claims on the merits” and arguing that private attorneys are better at enforcing employment
discrimination statutes).
[FN210]. See Access to Justice Denied, supra note 130, at 86 (testimony of Debo P. Adegbile)
(“Courts around the country are using Iqbal and Twombly to dismiss pending civil rights and
other cases far more frequently than they had dismissed similar cases under Conley.”); Kendall
W. Hannon, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v.
69
Twombly on 12(b)(6) Motions, 83 Notre Dame L. Rev. 1811, 1838 (2008) (“[A] Twombly civil
rights action was 39.6% more likely to be dismissed than a random case in the set. This result
was statistically significant to the 0.05 level.”); Joseph A. Seiner, The Trouble with Twombly: A
Proposed Pleading Standard for Employment Discrimination Cases, 2009 Univ. Ill. L. Rev.
1011, 1030, 1041-42 (2% increase in dismissal rate of employment discrimination cases postTwombly).
[FN211]. See, e.g., Diaz-Martinez v. Miami-Dade County, No. 07-20914-CIV, 2009 WL
2970468, at *9 (S.D. Fla. Sept. 10, 2009) (Relying on Twombly, court dismissed §1983 claim for
conspiracy to deprive plaintiff his civil rights on grounds that allegations of parallel
constitutional violations alone did not suggest an agreement between police defendants, and
discovery was not appropriate); Dorsey v. Ga. Dep't of State Rd. & Tollway Auth. SRTA, No.
1:09-CV-1182-TWT, 2009 WL 2477565, at *5-7 (N.D. Ga. Aug. 10, 2009) (dismissing §1983
hostile work environment claim and others on grounds that plausibility standard under Twombly
not met under Rule 12(c) motion on the pleadings); Ibrahim v. Dep't of Homeland Sec., No. C
06-00545, 2009 WL 2246194, at *8-10 (N.D. Cal. July 27, 2009) (dismissing claims of
discrimination on basis of national origin, religious beliefs, and other constitutional violations
because plaintiff did not show discriminatory purpose under Iqbal); Kyle v. Holinka, No. 09-cv90-slc, 2009 WL 1867671, at *1-3 (W.D. Wis. June 29, 2009) (dismissing equal protection
claims brought by prisoners against prison officials for alleged racial segregation).
[FN212]. See Malveaux, supra note 205, at 82; Fleming James, Jr. et al., Civil Procedure §6.7, at
311 (4th ed. 1992) (“Another characteristic American value is the right to have one's say,
specifically, to have one's ‘day in court.”’).
[FN213]. Truax v. Corrigan, 257 U.S. 312, 332 (1921); Grannis v. Ordean, 234 U.S. 385, 394
(1914) (“The fundamental requisite of due process of law is the opportunity to be heard.”); see
also Foman v. Davis, 371 U.S. 178, 182 (1962) (“If the underlying facts or circumstances relied
upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to
test his claim on the merits.”); Laurence H. Tribe, American Constitutional Law 666 (2d ed.
1988) (“[T]here is intrinsic value in the due process right to be heard” because “[w]hatever its
outcome, such a hearing represents a valued human interaction in which the affected person
experiences at least the satisfaction of participating in the decision that vitally concerns her....”).
The right to federal court access is also grounded in the Petition Clause of the First Amendment.
See Carol Rice Andrews, A Right to Access to Court Under the Petition Clause of the First
Amendment: Defining the Right, 60 Ohio St. L.J. 557, 563 (1999); Spencer, supra note 147, at
27 n.124 (citing cases); see also U.S. Const. amend. I (“Congress shall make no law...
abridging... the right of the people... to petition the Government for a redress of grievances.”).
70
[FN214]. 5 U.S. (1 Cranch) 137, 163 (1803).
[FN215]. See Robert E. Keeton, Judging 99 (1990) (providing that “a decisionmaker” prefers to
make decisions “squarely on [the] merits”); James et al., supra note 212, §1.1, at 2 (“In its dayto-day application, the law of procedure implements substantive law.”); Malveaux, supra note
205, at 83; Ochoa & Wistrich, supra note 209, at 500-02; see also Foman, 371 U.S. at 181 (“It is
too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for
decisions on the merits to be avoided on the basis of such mere technicalities.”).
[FN216]. See Lawrence M. Solan, The Language of Judges 27 (1993) (“No one... feels satisfied
when a decision announced is based on what seems to be a legal technicality instead of on the
real issues.”).
[FN217]. See Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential
Employment Discrimination Settlements, 64 Wash. & Lee L. Rev. 111, 114 (2007)
(“Conservative pundits assert that employers are being held hostage by the discrimination laws.
They are besieged by frivolous claims and forced into nuisance settlements to avoid out-ofcontrol legal fees.” (footnote omitted) (citing several sources)).
[FN218]. See id. at 111-12 (analyzing 1,170 employment discrimination cases settled by federal
magistrate judges in Chicago over a six-year period “indicat[ing] that employment
discrimination litigation is neither jeopardizing American business nor resulting in undeserved
windfalls for disgruntled employees;” rather, plaintiffs' settlement rates indicate their claims
have some merit).
[FN219]. Professor Brooks analyzes how a judge would analyze the shift from Conley's notice
pleading rule to Twombly's plausibility pleading rule under three critical race theory equality
models: symmetrical, asymmetrical, and hybrid. Examining the federal pleading rule from the
asymmetrical-critical-race-theoretical perspective, a judge would conclude that it results in racial
subordination if the rule “adversely impacts African Americans in such a way to suggest
insiderism.” Brooks, supra note 157, at 58. In other words, the judge would ask if the pleading
rule “invalidates an important African-American value, privileges whites, or in any other way
creates a racial status harm.” Id. Under the asymmetrical model, the judge would answer yes. Id.
[FN220]. Id.
[FN221]. Id. at 59 (“Admittedly, the [plausibility pleading rule] is not race-specific on its face. It
applies to whites as well as African Americans, and to insiders as well as outsiders. Anyone who
sues under the civil rights statutes must comply with this pleading rule.”).
71
[FN222]. More specifically, “[Plausibility pleading rule] disadvantages the prosecution of civil
rights cases because it impose a difficult, if not impossible, burden on the plaintiff to make
specific factual allegations about evidence (or ‘proof’) known only to defendants. For example,
evidence of discriminatory animus or institutional practices is typically not revealed to the
plaintiff until discovery; yet, under the [plausibility pleading rule], the plaintiff is forced to plead
such undiscovered evidence or face early dismissal of his or her civil rights claim. Cases are
dismissed without ever reaching the merits.” Id. at 58 (footnote omitted).
[FN223]. Id. at 45-46, 54 (describing “insiderism”); id. at 33 (describing “people of color,
women, and homosexuals” as “outsiders” under critical race theory).
[FN224]. Id. at 59 (“Not surprisingly... the typical plaintiff in a civil rights case is more likely to
be an African American rather than an insider.”).
[FN225]. Id. at 59-60 (2008). “[C]ivil rights litigation holds a special place in the hearts and
minds of African Americans. Federal litigation in particular has always been the most essential
governmental resource in the protracted struggle for racial equality in America....
....
“[C]ivil rights litigation is an important governmental resource that African Americans have and
continue to use in their protracted struggle for racial equality.” Id.
[FN226]. Id. at 58-61.
[FN227]. Id. at 59.
[FN228]. Malveaux, supra note 205, at 83-84.
[FN229]. Judith N. Shklar, The Faces of Injustice 35 (1990).
[FN230]. See Malveaux, supra note 205, at 84.
[FN231]. See Fed. R. Civ. P. 11(b)(3). It states: “By presenting to the court a pleading... an
attorney or unrepresented party certifies that to the best of the person's knowledge, information,
and belief, formed after an inquiry reasonable under the circumstances:... (3) the factual
contentions have evidentiary support or, if specifically so identified, will likely have evidentiary
support after a reasonable opportunity for further investigation or discovery.” Id .
72
[FN233]. See Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. (2009); Open
Access to the Courts Act of 2009, H.R. 4115, 111th Cong. (2009).
[FN234]. See Fed. R. Civ. P. 9(b).
[FN235]. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009).
[FN236]. Rule 1 of the Federal Rules of Civil Procedure states: “These rules govern the
procedure in all civil actions... in the United States district courts.... They should be construed
and administered to secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1.
[FN237]. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).
[FN238]. See Weiss v. Regal Collections, 385 F.3d 337, 342 (3d Cir. 2004) (“The Federal Rules
of Civil Procedure are designed to be interdependent.... Whenever possible we should harmonize
the rules.”); Canister Co. v. Leahy, 182 F.2d 510, 514 (3d Cir. 1950) (“The Rules.... must be
considered in relation to one another.”).
[FN239]. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007).
[FN240]. It is important to objectively examine whether discovery costs have in fact spiraled out
of control. For a preliminary empirical study of the costs of discovery, see Emery G. Lee III &
Thomas E. Willging, Fed. Judicial Ctr., National, Case-Based Civil Rules Survey: Preliminary
Report to the Judicial Conference Advisory Committee on Civil Rules 35-44 (2009), available at
http:// www.fjc.gov/public/pdf.nsf/lookup/dissurv1.pdf/$file/dissurv1.pdf.
[FN241]. See Bone, supra note 7, at 933 n.249 (“Judges routinely allow targeted discovery
before deciding a motion to dismiss for lack of subject matter or personal jurisdiction, but rarely
before deciding a Rule 12(b)(6) motion.”).
[FN242]. See Crawford-El v. Britton, 523 U.S. 574, 600 (1998) (“[S]ummary judgment serves as
the ultimate screen to weed out truly insubstantial lawsuits prior to trial.”).
[FN243]. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). Specifically, the Court
has stated: “Consistently with the notice-pleading system established by the Rules, discovery is
not limited to issues raised by the pleadings, for discovery itself is designed to help define and
clarify the issues. Nor is discovery limited to the merits of a case, for a variety of fact-oriented
issues may arise during litigation that are not related to the merits. Id. (citation omitted).
73
“For example, where issues arise as to jurisdiction or venue, discovery is available to ascertain
the facts bearing on such issues. Similarly, discovery often has been used to illuminate issues
upon which a district court must pass in deciding whether a suit should proceed as a class action
under Rule 23, such as numerosity, common questions, and adequacy of representation.” Id. at
351 n.13 (citations omitted); see Crawford-El, 523 U.S. at 597-99 (qualified immunity).
[FN244]. Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982) ( “Sometimes the issues
are plain enough from the pleadings to determine whether the interests of the absent parties are
fairly encompassed within the named plaintiffs claim....”), remanded to 686 F.2d 261 (5th Cir.
1982), aff'd, 815 F.2d 317 (5th Cir. 1987); John Randall Whaley et al., Precertification
Discovery: A User's Guide, 80 Tul. L. Rev. 1827, 1865 (2006) (“[S]ome courts have determined
that a certification decision--usually a negative one--can be made on the pleadings, before any
discovery is conducted.”).
[FN245]. Whaley et al., supra note 244, at 1864; Stewart v. Winter, 669 F.2d 328, 331 (5th Cir.
1982) (“[I]n most cases, ‘a certain amount of discovery is essential in order to determine the
class action issue and the proper scope of the class action.”’).
[FN246]. See, e.g., In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996); Pittman v. E.
I. duPont de Nemours & Co., 552 F.2d 149, 150 (5th Cir. 1977) (“Of course, a certain amount of
discovery is essential in order to determine the class action issue and the proper scope of a class
action.”); Huff v. N.D. Cass Co. of Ala., 485 F.2d 710, 712 (5th Cir. 1973).
[FN247]. Gen. Tel. Co. of the Sw., 457 U.S. at 161.
[FN248]. Oppenheimer Fund, Inc., 437 U.S. at 351 n.13; see also Whaley et al., supra note 244,
at 1866 (“[D]iscovery is usually allowed before any decision is made by the court on the
propriety of certification.”).
[FN249]. See Fed. R. Civ. P. 23(c)(1)(A) advisory committee's note (amended 2003).
[FN250]. Manual for Complex Litigation (Fourth) §21.14, at 256 (2004).
[FN251]. See 8 Alba Conte & Herbert B. Newberg, Newberg on Class Actions §24:80, at 309-10
(4th ed. 2002) (“Timely discovery of the defendants by the plaintiffs may be desirable before the
initial class determination when pertinent facts are in dispute, especially when information
concerning these facts is exclusively in the control of the defendants.” (footnotes omitted) (citing
cases)).
[FN252]. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974) (“We find nothing in
74
either the language or history of Rule 23 that gives a court any authority to conduct a preliminary
inquiry into the merits of a suit in order to determine whether it may be maintained as a class
action.”). Whether courts should be permitted to make a preliminary inquiry into the merits at the
class certification stage is the subject of much debate. See Robert H. Klonoff, Edward K. M.
Bilich & Suzette M. Malveaux, Class Actions and Other Multi-Party Lit.: Cases and Materials
325-28 (2d ed. 2006) (discussing conflict).
[FN253]. Manual for Complex Litigation, supra note 250, §21.14, at 256.
[FN254]. Id. (“There is not always a bright line between the two.”); See Coopers & Lybrand v.
Livesay, 437 U.S. 463, 469 n.12 (1978) (“Evaluation of many of the questions entering into
determination of class action questions is intimately involved with the merits of the claim.”);
Gen. Tel. Co. of the Sw. v. Falcon, 457 U.S. 147, 160 (1982) (“[T]he class determination
generally involves considerations that are enmeshed in the factual and legal issues comprising
the plaintiff's cause of action.” (internal quotation marks omitted) (quoting Coopers & Lybrand,
437 U.S. at 469)); Newton v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 168 (3d
Cir. 2001) (“In reviewing a motion for class certification, a preliminary inquiry into the merits is
sometimes necessary to determine whether the alleged claims can be properly resolved as a class
action.”); Stastny v. S. Bell Tel. & Tel. Co., 628 F.2d 267, 274 (4th Cir. 1980) (“[T]he class
action and merit inquiries essentially coincide.”); In re Plastics Additives Antitrust Litig., No.
Civ.A. 03-2038, 2004 WL 2743591, at *4 (E.D. Pa. Nov. 29, 2004) (differentiation between
merits and class discovery difficult in price-fixing case because of “substantial overlap”); Ellis v.
Elgin Riverboat Resort, 217 F.R.D. 415, 423 (N.D. Ill. 2003) (“[T]he inquiry into whether the
plaintiffs meet the commonality requirement (and to some extent the typicality and adequacy of
representation requirements) necessarily overlaps with the merits of the plaintiffs' claim....”
(footnote omitted)).
[FN255]. See Whaley et al., supra note 244, at 1866 (“[I]t is usually very difficult to establish a
bright line between ‘merits' and ‘class certification’ discovery because of inherent overlap and, in
practice, such clear bifurcation normally does not occur.”); Id. at 1868-70 (describing problem);
Manual for Complex Litigation, supra note 250, §21.14, at 256.
[FN256]. See, e.g., In re Hamilton Bancorp, Inc. Sec. Litig., No. 01CV0156, 2002 WL 463314,
at *1 (S.D. Fla. Jan. 14, 2002) (“[B]ifurcation of discovery may well-increase litigation expenses
by protracting the completion of discovery, coupled with endless disputes over what is ‘merit’
verses [sic] ‘class' discovery.”’); see, e.g., In re Plastics Additives Antitrust Litig., 2004 WL
2743591, at * 4 (court refused to bifurcate, in part, because of delay, time, and expense necessary
to resolve disputes over distinguishing merits and class discovery).
[FN257]. Manual for Complex Litigation, supra note 250, §21.14, at 256; see, e.g.,
75
Additives Antitrust Litig., 2004 WL 2743591, at * 4.
[FN258]. Manual for Complex Litigation, supra note 250, §11.213, at 40; In re Plastics Additives
Antitrust Litig., 2004 WL 2743591, at *2; see, e.g., Tracy v. Dean Witter Reynolds, Inc., 185
F.R.D. 303, 305 (D. Colo. 1998) (“In managing discovery in cases of this nature, district courts
are required to balance the need to promote effective case management, the need to prevent
potential abuse, and the need to protect the rights of all parties.”).
[FN259]. See 8 Conte & Newberg, supra note 251, §24:80, at 310-12 (“While discovery must be
broad enough to permit the plaintiffs a real chance to obtain certification, its scope may be
limited when it is overly burdensome under all the circumstances.” (footnotes omitted) (citing
cases)); see, e.g., Tracy, 185 F.R.D. at 305.
[FN260]. See Hart, supra note 156, at 780 (“The vast majority of employment discrimination
class litigation succeeds or fails at the moment of the certification decision.” (citing empirical
studies)); Gary M. Kramer, No Class: Post-1991 Barriers to Rule 23 Certification of Across-theBoard Employment Discrimination Cases, 15 Lab. Law. 415, 416 (2000) (“Once plaintiffs obtain
class certification, the defendant's exposure, plus projected costs of defending hundreds or
thousands of individual claims, places almost overwhelming and irresistible pressure on the
defendant to settle, regardless of the merits of the claims.”).
[FN261]. See Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007).
[FN262]. See 8 Conte & Newberg, supra note 251, §24:80; see also Manual for Complex
Litigation, supra note 250, §21.14, at 256 (“To make [the class discovery] decision, the court
should encourage counsel to confer and stipulate as to relevant facts that are not genuinely
disputed, to reduce the extent of precertification discovery, and to refine the pertinent issues for
deciding class certification.”).
[FN263]. Manual for Complex Litigation, supra note 250, §21.14, at 256 (describing what plan
should include).
[FN264]. Tracy, 185 F.R.D. at 304-05; Cobell v. Babbitt, 30 F. Supp. 2d 24, 46 (D.D.C. 1998)
(court has “substantial discretion under Rule 23(d) to shape the course of discovery in class
actions”).
[FN265]. See Mantolete v. Bolger, 767 F.2d 1416, 1424 (9th Cir. 1985) (plaintiffs “bear[] the
burden of advancing a prima facie showing that the class action requirements of Fed.R.Civ.P. 23
are satisfied or that discovery is likely to produce substantiation of the class allegations.”);
Severtson v. Phillips Beverage Co., 137 F.R.D. 264, 267 (D. Minn. 1991) (plaintiffs must show
76
“some factual basis for [their] claims of class-wide discrimination” prior to class discovery); see,
e.g., Tracy, 185 F.R.D. at 304-05 (concluding that plaintiffs failed to present sufficient
information to persuade court that they ought to be able to conduct extended class discovery).
[FN266]. Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (internal quotation marks omitted)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
[FN267]. Id.
[FN268]. Id. (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)); see also Ashcroft v. Iqbal,
129 S. Ct. 1937, 1945-46 (2009) (qualified immunity “is both a defense to liability and a limited
‘entitlement not to stand trial or face the other burdens of litigation”’ (quoting Mitchell, 472 U.S.
at 526)).
[FN269]. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (“[W]e repeatedly have stressed the
importance of resolving immunity questions at the earliest possible stage in litigation.”).
[FN270]. Pearson, 129 S. Ct. at 815 (“[W]e have made clear that the ‘driving force’ behind
creation of the qualified immunity doctrine was a desire to ensure that “‘insubstantial claims”
against government officials [will] be resolved prior to discovery.”’ (quoting Anderson v.
Creighton, 483 U.S. 635, 640 n.2 (1987))); see also Iqbal, 129 S. Ct. at 1953 (“The basic thrust
of the qualified-immunity doctrine is to free officials from the concerns of litigation, including
‘avoidance of disruptive discovery.”’ (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)
(Kennedy, J., concurring))); Crawford-El v. Britton, 523 U.S. 574, 598 (1998) (“[I]f the
defendant does plead the immunity defense, the district court should resolve that threshold
question before permitting discovery.”).
[FN271]. See Pearson, 129 S. Ct. at 816 (“Qualified immunity is applicable unless the official's
conduct violated a clearly established constitutional right.”).
[FN272]. Hernandez v. Foster, No. 09 C 2461, 2009 WL 1952777, at *1 (N.D. Ill. July 6, 2009).
[FN273]. Id. at *2.
[FN274]. Id.
[FN275]. Id. at *3, *6.
77
[FN277]. Id. at *3-6.
[FN278]. Id. at * 7.
[FN279]. Id. at *7-9.
[FN280]. Id. at *7.
[FN281]. Id. at *10 (citing Crawford-El v. Britton, 523 U.S. 574, 597-99 (1998)).
[FN282]. Id.
[FN283]. A Bivens action is one where a plaintiff sues a federal government official in federal
court for damages stemming from an alleged constitutional violation. A Bivens action refers to
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 397
(1971), in which the Supreme Court recognized an implied right of action for damages against
government officials in their individual capacities. Bivens involved the Fourth Amendment. It
has since been expanded to the Due Process clause of the Fifth Amendment, Davis v. Passman,
442 U.S. 228, 248-49 (1979), and the cruel and unusual punishment prohibition of the Eighth
Amendment, Carlson v. Green, 446 U.S. 14, 19-20 (1980).
[FN284]. Argueta v. U.S. Immigration & Customs Enforcement, No. 08-1652 (PGS), 2009 WL
1307236, at *1-2 (D.N.J. May 7, 2009).
[FN285]. Id. at *1, *21.
[FN286]. Id. at *23. The court relied on allegations in the complaint that were admittedly hearsay
at this juncture. See id.
[FN287]. Id.
[FN288]. Id. (“[P]rior to discovery, this Court is reluctant to deny Defendants' claim about
qualified immunity where controversy exists.... More evidence is needed before this Court can
more capably decide whether defendants were personally involved.”).
[FN289]. Id. at *24; see also id. at *23 (“Rather than overreach on granting motions to dismiss,
courts should rely on control of discovery and summary judgment to ‘wed [sic] out
unmeritorious claims.”’ (quoting Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 168-69 (1993))).
78
[FN290]. See, e.g., Crawford-El v. Britton, 523 U.S. 574, 598, 600 (1998) (finding that once a
plaintiff proves a viable claim, the judge has “broad discretion to tailor discovery narrowly” and
“should give priority to discovery concerning issues that bear upon the qualified immunity
defense... since that defense should be resolved as early as possible”).
[FN291]. See, e.g., Torres v. White, No. 08-CV-196-JHP-FHM, 2009 WL 37617, at *4 (N.D.
Okla. Jan. 6, 2009). In Torres, in the absence of discovery, the court denied police officer's Rule
12(b)(6) motion based on qualified immunity grounds. Under Twombly, the plaintiff plausibly
alleged a Fourth Amendment violation of unreasonable use of excessive and deadly force. Id. at
*2-3. However, without discovery, the court could not ascertain whether the law was clearly
established. Id. at *3 (“[T]he Court finds it premature to rule on the qualified immunity issue
until the facts are sufficiently established.”). Consequently, the court granted limited discovery
solely on the immunity issue, leaving open the possibility of defendant's filing a summary
judgment motion afterwards. Id. at *4. See also Dawe v. Rogers, No. 8:09-cv-620-T-30AEP,
2009 WL 2579359, at *4-5 (M.D. Fla. Aug. 18, 2009) (finding that plaintiff sufficiently pled
§1983 claims for Fourth and Fourteenth Amendment violations under Twombly and Iqbal,
denying 12(b)(6) motion on qualified immunity grounds, and ordering limited discovery on issue
for summary judgment consideration); cf. Henshaw v. Wayne County, No. 2:09-CV-152-TC-SA,
2009 WL 3226503, at *5 (D. Utah Oct. 1, 2009) (granting limited discovery on quasi-judicial
immunity issue for later consideration under summary judgment where record was insufficient to
justify Rule 12(c) dismissal); Hollman v. Lindsay, No. 08-CV-1417 (NGG), 2009 WL 3112076,
at *16 (E.D.N.Y. Sept. 25, 2009) (ordering limited discovery on qualified immunity issue where
record was insufficient to grant summary judgment).
[FN292]. Crawford-El, 523 U.S. at 598 (quoting Siegert v. Gilley, 500 U.S. 226, 236 (1991)
(Kennedy, J., concurring)); see also Schultea v. Wood, 47 F.3d 1427, 1433 (5th Cir. 1995) (“By
definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its
allegations.”). In Schultea, the Fifth Circuit recognized that “ordering a reply to the affirmative
defense of qualified immunity is one of those... instances” where “an additional pleading by the
plaintiff may be helpful to the defendant in laying the groundwork for a motion to test the
sufficiency of the claim.” Id. (quoting 5 Charles A. Wright & Arthur R. Miller, Federal Practice
and Procedure §1185, at 33 (3d ed. 2004)).
[FN293]. 335 F. App'x 466 (5th Cir. 2009).
[FN294]. Id. at 468. Following Hurricane Katrina, the plaintiff in protective custody was
transferred and put into a correctional center with the general prison population. Id. at 469.
Shortly thereafter, he was “beaten and stabbed in his head and neck.” Id.
79
[FN296]. Id. Courts may require a plaintiff whose complaint suffices under Rule 8 to file a reply
in response to a defendant's answer or motion pleading the qualified immunity defense. See
Schultea, 47 F.3d at 1433-34.
[FN297]. Morgan, 335 F. App'x at 468 (“The judge found that [plaintiff] adequately alleged
violation of a constitutional right and that, if the facts in the complaint were accepted as true,
[defendant] acted unreasonably and was not entitled to qualified immunity.”).
[FN298]. Id.
[FN299]. Id. at 470, 472-73.
[FN300]. See, e.g., Maxey v. Fulton, 890 F.2d 279, 283-84 (10th Cir. 1989) (holding that district
court did not properly cabin discovery to qualified immunity question and remanding for
protective order to protect defendant from merits discovery).
[FN301]. Id. at 282 (emphasis added) (quoting Lion Boulos v. Wilson, 834 F.2d 504, 507 (5th
Cir. 1987)); Crawford-El v. Britton, 523 U.S. 574, 588, 598 (1998) (qualified immunity meant to
avoid “burdens of broad-reaching discovery” and “unnecessary and burdensome discovery”
(emphasis added)).
[FN302]. See Schultea v. Wood, 47 F.3d 1427, 1434 (5th Cir. 1995) (requiring “sufficient
precision and factual specificity” in a Rule 7 reply to an answer pleading qualified immunity
defense). Where plaintiff is required to file a reply, the court may stay all discovery on the
merits, and instead order limited discovery on the sole question of the propriety of qualified
immunity, at the pleadings stage. If the plaintiff fails to support his claim “with sufficient
precision and factual specificity,” the court need not grant merits discovery. Id.
[FN303]. Morgan, 335 F. App'x at 472 (“[W]e do not require a plaintiff to plead facts ‘peculiarly
within the knowledge of defendants.”’ (quoting Schultea, 47 F.3d at 1432)).
[FN304]. Id.
[FN305]. Id.
[FN306]. See Stalley ex rel. United States v. Orlando Reg'l Healthcare Sys., Inc., 524 F.3d 1229,
1232-33 (11th Cir. 2008); Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 162 (1st Cir.
2007). A defendant may also substantively challenge the court's subject matter jurisdiction by
calling into question the underlying factual allegations that provide the basis for court's
80
jurisdiction. See Gibbs v. Buck, 307 U.S. 66, 71-72 (1939); Stalley, 524 F.3d at 1232-33; TorresNegrón, 504 F.3d at 162 n.8.
[FN307]. McElmurray v. Consol. Gov't of Augusta-Richmond County, 501 F.3d 1244, 1251
(11th Cir. 2007). However, plaintiff's burden of proof is greater. The plaintiff must prove by a
preponderance of the evidence that the court has subject matter jurisdiction. The party invoking
the jurisdiction of the court has the burden of proof on this matter. Hamm v. United States, 483
F.3d 135, 137 (2d Cir. 2007); Skwira v. United States, 344 F.3d 64, 71 (1st Cir. 2003); Toxgon
Corp. v. BNFL, Inc., 312 F.3d 1379, 1383 (Fed. Cir. 2002); New Mexicans for Bill Richardson
v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995).
[FN308]. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (“[I]t may appear on the face of the
pleadings that a recovery is very remote and unlikely but that is not the test.”).
[FN309]. Newell Operating Co. v. Int'l Union of United Auto., Aerospace, & Agric. Implement
Workers of Am., U.A.W., 532 F.3d 583, 587 (7th Cir. 2008); Lane v. Halliburton, 529 F.3d 548,
557 (5th Cir. 2008).
[FN310]. See Newell Operating Co., 532 F.3d at 587; Hastings v. Wilson, 516 F.3d 1055, 1058
(8th Cir. 2008) (“finding that ‘the non-moving party receives the same protections [for facial
attacks under 12(b)(1)] as it would defending against a motion brought under Rule 12(b)(6)”’
(quoting Osborn v. United States, 918 F.2d 724, 729 n.6 (8th Cir. 1990))); Torres-Negrón v. J &
N Records, LLC, 504 F.3d 151, 162 (1st Cir. 2007); McElmurray, 501 F.3d at 1251.
In Scheuer v. Rhodes, the Supreme Court stated that “it is well established that, in passing on a
motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the complaint should be construed favorably
to the pleader.” Scheuer, 416 U.S. at 236. However, the Court relied upon Conley's “no set of
facts” language as support for this assertion. Id. With the Conley mantra now retired, the Court's
deference to the complaint may arguably have waned.
[FN311]. Stalley ex rel. United States v. Catholic Health Initiatives, 509 F.3d 517, 521 (8th Cir.
2007).
[FN312]. Id.; see also Lane, 529 F.3d at 557 (applying plausibility standard in Rule 12(b)(1)
facial challenge); see, e.g., Foresta v. Centerlight Capital Mgmt., LLC, No. 3:08-cv-1571
(WWE), 2009 WL 928356, at *1-2 (D. Conn. Apr. 3, 2009).
[FN313]. See Lane, 529 F.3d at 557 (stating that only complaint and attachments reviewable
under a Rule 12(b)(6) motion, while additional materials are reviewable under Rule 12(b)(1),
81
where challenge is substantive and not facial); see, e.g., McElmurray, 501 F.3d at 1251.
[FN314]. New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir. 1995)
(explaining that in response to a Rule 12(b)(1) substantive challenge, “[i]t then becomes
necessary for the party opposing the motion to present affidavits or any other evidence” proving
“subject matter jurisdiction” (emphasis added) (citations omitted)); Williamson v. Tucker, 645
F.2d 404, 414 (5th Cir. 1981) (discussing the court's limited procedural discretion when deciding
a Rule 12(b)(1) factual challenge, concluding that court “must give the plaintiff an opportunity
for discovery and for hearing that is appropriate to the nature of the motion to dismiss,” and
citing cases where courts have refused to grant 12(b)(1) substantive challenges where plaintiff
has not had opportunity to take discovery).
[FN315]. Gualandi v. Adams, 385 F.3d 236, 244 (2d Cir. 2004). See also Roswell Capital
Partners LLC v. Alternative Constr. Techs., 638 F. Supp. 2d 360, 372 (S.D.N.Y. 2009) (applying
Gualandi).
[FN316]. See Sizova v. Nat'l Inst. of Standards & Tech., 282 F.3d 1320, 1326 (10th Cir. 2002).
[FN317]. Skwira v. United States, 344 F.3d 64, 71-72 (1st Cir. 2003).
[FN318]. The court has the power to grant a Rule 12(b)(1) motion on three bases: 1) the
complaint; 2) the complaint plus undisputed facts from the record; or 3) the complaint,
undisputed facts, and disputed facts resolved by the court. Lane, 529 F.3d at 557; McElmurray,
501 F.3d at 1251 (“matters outside the pleadings, such as testimony and affidavits are
considered” for factual attacks on the existence of subject matter jurisdiction); BarreraMontenegro v. United States, 74 F.3d 657, 659 (5th Cir. 1996).
[FN319]. See Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subjectmatter jurisdiction, the court must dismiss the action.”).
[FN320]. Torres-Negrón v. J & N Records, LLC, 504 F.3d 151, 163 (1st Cir. 2007).
[FN321]. Id. at 164; see, e.g., Foresta v. Centerlight Capital Mgmt., LLC, No. 3:08-cv-1571
(WWE), 2009 WL 928356, at *2-3 (D. Conn. Apr. 3, 2009) (explaining that Rule 12(b)(1)
motion converted into Rule 56 motion where defendant attached affidavits to its motion).
[FN322]. Skwira, 344 F.3d at 72 n.10.
[FN323]. SEC v. Founding Partners Capital Mgmt., 639 F. Supp. 2d 1291, 1293 (M.D. Fla.
2009) (“[T]he facial attack standard is similar to the Rule 12(b)(6) standard.”).
82
[FN324]. See Platten v. HG Bermuda Exempted Ltd., 437 F.3d 118, 139-40 (1st Cir. 2006);
United States v. Swiss Am. Bank, Ltd., 274 F.3d 610, 625-26 (1st Cir. 2001) (“[E]ven when the
plaintiff has been diligent and has made a colorable claim for personal jurisdiction, the district
court still has ‘broad discretion to decide whether discovery is required.”’ (quoting Crocker v.
Hilton Int'l Barb., Ltd., 976 F.2d 797, 801 (1st Cir. 1992))).
[FN325]. Swiss Am. Bank, Ltd., 274 F.3d at 625 (“We have long held that ‘a diligent plaintiff
who sues an out-of-state corporation and who makes out a colorable case for the existence of in
personam jurisdiction may well be entitled to a modicum of jurisdictional discovery if the
corporation interposes a jurisdictional defense.”’ (quoting Sunview Condominium Ass'n v.
Flexel Int'l, Ltd., 116 F.3d 962, 964 (1st Cir. 1997))); Mass. Sch. of Law at Andover, Inc. v. Am.
Bar Ass'n, 107 F.3d 1026, 1042 (3d Cir. 1997) (“Our rule is generally that jurisdictional
discovery should be allowed unless the plaintiff's claim is ‘clearly frivolous.”’ (quoting
Nehemiah v. The Athletics Congress, 765 F.2d 42, 48 (3d Cir. 1985))).
[FN326]. Butcher's Union Local No. 498 v. SDC Inv., Inc., 788 F.2d 535, 540 (9th Cir. 1986);
see also, Trintec Indus., Inc. v. Pedre Promotional Prods., Inc., 395 F.3d 1275, 1283 (Fed. Cir.
2005); GTE New Media Servs., Inc. v. BellSouth Corp., 199 F.3d 1343, 1351-52 (D.C. Cir.
2000); United States v. Swiss Am. Bank, Ltd., 191 F. 3d 30, 45 (1st Cir. 1999) (“A timely and
properly supported request for jurisdictional discovery merits solicitous attention.”).
[FN327]. See, e.g., Doe v. Unocal Corp., 248 F.3d 915, 921 (9th Cir. 2001).
[FN328]. Butcher's Union Local No. 498, 788 F.2d at 540; Boschetto v. Hansing, 539 F.3d 1011,
1020 (9th Cir. 2008), cert. denied, 129 S. Ct. 1318 (2009); Negrón-Torres v. Verizon Commc'ns,
Inc., 478 F.3d 19, 23 (1st Cir. 2007) (declaring discovery denial should be overturned only where
there has been “clear showing of manifest injustice, that is,... discovery order was plainly wrong
and resulted in substantial prejudice to the aggrieved party” (quoting Crocker, 976 F.2d at 801));
Swiss Am. Bank, Ltd., 274 F.3d at 626 (standard for reversing discovery denial is “high”).
[FN329]. See, e.g., Platten, 437 F.3d at 139-40 (discovery denial not an abuse of discretion
where plaintiff's request was untimely).
[FN330]. See, e.g., Boschetto, 539 F.3d at 1020 (stating that denial was not abuse of discretion
where plaintiff's request for discovery was “based on little more than a hunch that it might yield
jurisdictionally relevant facts”); Best Van Lines, Inc. v. Walker, 490 F.3d 239, 255 (2d Cir.
2007) (concluding that where plaintiff failed to make out a prima facie case of jurisdiction,
denial of discovery was not an abuse of discretion); Carefirst of Md., Inc. v. Carefirst Pregnancy
Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003) (deciding that plaintiff's speculation and
83
conclusory statements about contacts with forum state justified discovery denial); Mass. Sch. of
Law at Andover, Inc., 107 F.3d at 1042 (clarifying that where jurisdictional claims were “clearly
frivolous,” denial of discovery was not an abuse of discretion); Butcher's Union Local No. 498,
788 F.2d at 540 (observing that denial was not an abuse of discretion where plaintiffs “state only
that they ‘believe’ that discovery will enable them to demonstrate” sufficient minimum contacts).
[FN331]. See Terracom v. Valley Nat'l Bank, 49 F.3d 555, 562 (9th Cir. 1995) (finding that
discovery denial not an abuse of discretion where plaintiff failed to show discovery would satisfy
jurisdiction).
[FN332]. See Credit Lyonnais Secs. (USA), Inc. v. Alcantara, 183 F.3d 151, 153-54 (2d Cir.
1999).
[FN333]. See id.; In re Magnetic Audiotape Antitrust Litig., 334 F.3d 204, 206 (2d Cir. 2003).
Of course, plaintiff still must ultimately prove, by a preponderance of the evidence, that the court
has personal jurisdiction over the defendant. Credit Lyonnais, 183 F.3d at 154; Doe v. Unocal
Corp., 248 F.3d 915, 922 (9th Cir. 2001).
[FN334]. See Credit Lyonnais, 183 F.3d at 153.
[FN335]. See Walk Haydel & Assocs., Inc. v. Coastal Power Prod. Co., 517 F.3d 235, 241 (5th
Cir. 2008) (“When the defendant disputes the factual bases for jurisdiction,... the court may
receive interrogatories, depositions, or ‘any combination of the recognized methods of
discovery’ to help it resolve the jurisdictional issue.” (quoting Thompson v. Chrysler Motors
Corp., 755 F.2d 1162, 1165 (5th Cir.1985))).
[FN336]. See id.; Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008); Air Prods. &
Controls, Inc. v. Safetech Int'l, Inc., 503 F.3d 544, 549 (6th Cir. 2007) (where court relied solely
on written submissions and affidavits, prima facie burden is all that is required).
[FN337]. See Walk Haydel & Assocs., Inc., 517 F.3d at 241; Boschetto, 539 F.3d at 1015;
Negrón-Torres v. Verizon Commc'ns, Inc., 478 F.3d 19, 23 (1st Cir. 2007); Unocal Corp., 248
F.3d at 922. However, conclusory allegations and “far fetched inferences” need not be credited.
Negrón-Torres, 478 F.3d at 23.
[FN338]. The court need not actually hold a hearing, but instead may enable the parties to be
fully heard through the evidentiary record. See Greene v. WCI Holdings Corp., 136 F.3d 313,
316 (2d Cir. 1998) (“Every circuit to consider the issue has determined that the ‘hearing’
requirements of Rule 12... do not mean that an oral hearing is necessary, but only require that a
party be given the opportunity to present its views to the court.”).
84
[FN339]. See, e.g., Walk Haydel & Assocs., Inc., 517 F.3d at 242 (conceding that where parties
were limited in discovery and not permitted a full-blown evidentiary hearing, the court erred in
requiring more than a prima facie showing of jurisdiction).
[FN340]. See id. at 241-42.
[FN341]. See id. at 241 n.9.
[FN342]. See Hartnett, supra note 8 (manuscript at 44-48), for a persuasive argument that courts
have the authority under the Federal Rules to permit discovery while a 12(b)(6) motion is
pending. See also Page, supra note 8, at 466 (arguing same). But see Bone, supra note 7, at 93435 (“If pleading-stage discovery is a good way to deal with the uninformed plaintiff, the Federal
Rules should be revised to authorize it explicitly. Allowing pleading-stage discovery fits the
current Rules awkwardly at best.”). Some courts have suggested that discovery is not permitted
pre-dismissal. See Ibrahim v. Dep't of Homeland Sec., No. C 06-00545, 2009 WL 2246194, at
*10 (N.D. Cal. July 27, 2009) (“A good argument can be made that the Iqbal standard is too
demanding. Victims of discrimination and profiling will often not have specific facts to plead
without the benefit of discovery. District judges, however, must follow the law as laid down by
the Supreme Court.”); Kyle v. Holinka, No. 09-cv-90-slc, 2009 WL 1867671, at *2 (W.D. Wis.
June 29, 2009) (refusing to stay ruling on defendants' Rule 12(b)(6) motion so that plaintiff can
conduct discovery to determine if prison officials implemented a policy of segregation in
violation of equal protection).
[FN343]. Fed. R. Civ. P. 26(b)(1).
[FN344]. See Fed R. Civ. P. 26(b)(1) advisory committee's note (2000) ( “The rule change...
signals to the parties that they have no entitlement to discovery to develop new claims or
defenses that are not already identified in the pleadings.”); Oppenheimer Fund, Inc. v. Sanders,
437 U.S. 340, 352 (1978) (“[I]t is proper to deny discovery of matter that is relevant only to
claims or defenses that have been stricken....”); cf. Sallis v. Univ. of Minn., 408 F.3d 470, 47778 (8th Cir. 2005) (stating that, after the amendment to Rule 26 in 2000, “discovery must relate
more directly to a ‘claim or defense’ than it did previously” (quoting Elvig v. Calvin
Presbyterian Church, 375 F.3d 951, 968 (9th Cir. 2004))).
[FN345]. Fed. R. Civ. P. 26(b)(1); Castillo v. Norton, 219 F.R.D. 155, 160 n.2 (D. Ariz. 2003)
(noting that, while the scope of discovery in a discrimination suit does not necessarily extend to a
retaliation claim, the court could order such discovery upon a showing of good cause).
[FN346]. Fed. R. Civ. P. 26(d)(1) (emphasis added).
85
[FN347]. See, e.g., Arista Records LLC v. Does 1-19, 551 F. Supp. 2d 1, 6-7 (D.D.C. 2008);
Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 275-76 (N.D. Cal. 2002).
[FN348]. See Rule 12(d), which states: “If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleadings are presented to and not excluded by the court, the motion must be treated
as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity
to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d). See Spencer,
supra note 7, at 161 (expressing concern that initial limited discovery would transform Rule
12(b)(6) into a Rule 56 summary judgment motion).
[FN349]. See, e.g., Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir.
2008) (finding no conversion occurred where court chose to “ignore” supplementary materials
attached to Rule 12(b)(6) motion); Jones v. City of Cincinnati, 521 F.3d 555, 561-62 (6th Cir.
2008) (finding no abuse of discretion where court “disregarded” defendants' public document
and videotape attached to Rule 12(b)(6) motion).
[FN350]. See, e.g., Stahl v. U.S. Dep't of Agric., 327 F.3d 697, 701 (8th Cir. 2003); Terracom v.
Valley Nat'l Bank, 49 F.3d 555, 558 (9th Cir. 1995) (ruling that where court did not rely on
defendant's affidavit, court's Rule 12(b)(6) dismissal was not error).
[FN351]. Fed. R. Civ. P. 10(c) (“A copy of a written instrument that is an exhibit to a pleading is
a part of the pleading for all purposes.”); Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d
Cir. 1993); see also Local 15, Int'l Bhd. of Elec. Workers, AFL-CIO v. Exelon Corp., 495 F.3d
779, 782 (7th Cir. 2007) (relying on Rule 10(c), court considered arbitration award attached to
complaint in Rule 12(b)(6) analysis).
[FN352]. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 127 S. Ct. 2499, 2509 (2007). A
document need not be attached to the complaint if it is “integral to or explicitly relied upon in the
complaint.” Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir.
2000) (citation omitted).
[FN353]. Tellabs, Inc., 127 S. Ct. at 2509.
[FN354]. See Levy v. Ohl, 477 F.3d 988, 990-91 (8th Cir. 2007); see also Roth v. Jennings, 489
F.3d 499, 509 (2d Cir. 2007) (finding that it was appropriate for the court to consider SEC public
records not attached to complaint in Rule 12(b)(6) determination).
[FN355]. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.2 (3d Cir.
1994).
86
[FN356]. Brass, 987 F.2d at 150; see also Trans-Spec Truck Serv., Inc. v. Caterpillar Inc., 524
F.3d 315, 321 (1st Cir. 2008) (“[W]hen... a complaint's factual allegations are expressly linked
to--and admittedly dependent upon--a document (the authenticity of which is not challenged),
that document effectively merges into the pleadings and the trial court can review it in deciding a
motion to dismiss under Rule 12(b)(6).” (quoting Beddall v. State St. Bank & Trust Co., 137
F.3d 12, 17 (1st Cir. 1998))); Roth, 489 F.3d at 509 (“[E]ven if not attached or incorporated by
reference, a document ‘upon which [the complaint] solely relies and which is integral to the
complaint’ may be considered by the court in ruling on such a motion.” (alteration in original)
(emphasis omitted) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir.
1991))); Cooper v. Pickett, 137 F.3d 616, 623 (9th Cir. 1997) (“[A] court ruling on a motion to
dismiss may consider the full texts of documents which the complaint quotes only in part.”);
Hines v. City of Albany, 542 F. Supp. 2d 218, 230 n.7 (N.D.N.Y. 2008) (“While normally the
letters could not be considered by the court in deciding a Rule 12(b)(6) motion, because they are
‘documents either in plaintiff's possession or of which plaintiffs had knowledge and relied on in
bringing suit[,]’ they are properly considered.” (alteration in original) (quoting Mueller-Paisner
v. TIAA, 446 F. Supp. 2d 221, 226-27 (S.D.N.Y. 2006))). But see Sira v. Morton, 380 F.3d 57,
67 (2d Cir. 2004) (finding that “[l]imited quotation from or reference to documents that may
constitute relevant evidence in a case is not enough to incorporate those documents, wholesale,
into the complaint” for Rule 12(c) consideration).
[FN357]. See Cooper, 137 F.3d at 622-23. More specifically: “[A] document is not “outside” the
complaint if the complaint specifically refers to the document and if its authenticity is not
questioned.... [W]hen [the] plaintiff fails to introduce a pertinent document as part of his
pleading, [the]defendant may introduce the exhibit as part of his motion attacking the pleading....
[D]ocuments whose contents are alleged in a complaint and whose authenticity no party
questions, but which are not physically attached to the pleading, may be considered in ruling on a
Rule 12(b)(6) motion to dismiss.” Id. (alterations in original) (emphasis added) (quoting Branch
v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994)); see also Curran v. Cousins, 509 F.3d 36, 44
(1st Cir. 2007) (finding that documents which are undisputedly authentic, central to plaintiff's
claim, and sufficiently referenced in the complaint may be considered by the court under Rule
12(b)(6) “even when the documents are incorporated into the movant's pleadings”).
[FN358]. See discussion supra Part III.B.2.
[FN359]. See Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). As noted by the Supreme
Court: “Before the shift to “notice pleading” accomplished by the Federal Rules, motions to
dismiss a complaint... were the principal tools by which factually insufficient claims... could be
isolated and prevented from going to trial.... But with the advent of ‘notice pleading,’ the motion
to dismiss seldom fulfills this function any more, and its place has been taken by the motion for
87
summary judgment.” Id.
[FN360]. See discussion supra Part III.B & notes 138-40.
[FN361]. See First Commercial Trust Co., N.A. v. Colt's Mfg. Co., 77 F.3d 1081, 1083 n.4 (8th
Cir. 1996) (“Litigants, of course, have no right to discovery in the absence of a plausible legal
theory.”); see also Mitchell v. McNeil, 487 F.3d 374, 379 (6th Cir. 2007) (finding no error in
denying discovery where plaintiffs did not state cognizable claim); Tucker v. Union of
Needletrades, Indus. & Textile Employees, 407 F.3d 784, 787-88 (6th Cir. 2005) (stating that
Rule 12(b)(6)'s “very purpose” is to challenge a complaint's legal sufficiency absent discovery
(quoting Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir. 2003))); Rutman Wine Co.
v. E. & J. Gallo Winery, 829 F.2d 729, 738 (9th Cir. 1987) (“It is sounder practice to determine
whether there is any reasonable likelihood that plaintiffs can construct a claim before forcing the
parties to undergo the expense of discovery.”).
[FN362]. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009).
[FN363]. See Hartnett, supra note 8 (manuscript at 48-49) (distinguishing Iqbal on grounds that
it dealt with qualified immunity, not “motions to dismiss generally”); but see Scott Dodson,
Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43 (2010); Scott
Dodson, New Pleading, New Discovery0, 49-51 (William & Mary Law Sch., Research Paper
No. 09-20), available at http://ssrn.com/abstract=1525642 [hereinafter Dodson, New Pleading].
[FN364]. In recognizing the importance of protecting government officials from non-meritorious
claims early in the litigation process, the Second Circuit noted how a district court could achieve
this objective while still allowing a complaint to survive. In particular, the Circuit Court stated:
“[E]ven though a complaint survives a motion to dismiss, a district court... may nonetheless
consider exercising its discretion to permit some limited and tightly controlled reciprocal
discovery so that a defendant may probe for amplification of a plaintiff's claims and a plaintiff
may probe such matters as a defendant's knowledge of relevant facts and personal involvement
in challenged conduct.” Iqbal v. Hasty, 490 F.3d 143, 158 (2d Cir. 2007).
[FN365]. Iqbal, 129 S. Ct. at 1953-54 (explaining how petitioners Ashcroft and Mueller would
be burdened by discovery of lower level governmental officials); id. (“We decline respondent's
invitation to relax the pleading requirements on the ground that the Court of Appeals promises
petitioners minimally intrusive discovery.”).
[FN366]. Id. In particular, the Second Circuit described various options available to the district
court: “[A] district court might wish to structure such limited discovery by examining written
responses to interrogatories and requests to admit before authorizing depositions, and by
88
deferring discovery directed to high-level officials until discovery of front-line officials has been
completed and has demonstrated the need for discovery higher up the ranks. If discovery directed
to current or former senior officials becomes warranted, a district court might also consider
making all such discovery subject to prior court approval.” Iqbal, 490 F.3d at 158; see also id. at
178.
[FN367]. Iqbal, 129 S. Ct. at 1953-54. The Court was particularly mindful of the need to protect
high-level officials via qualified immunity. Id. at 1954. (“[The Second Circuit's] promise [of
minimally intrusive discovery] provides especially cold comfort in this pleading context, where
we are impelled to give real content to the concept of qualified immunity for high-level officials
who must be neither deterred nor detracted from the vigorous performance of their duties.”).
[FN368]. Id. at 1953 (“We have held... that the question presented by a motion to dismiss a
complaint for insufficient pleadings does not turn on the controls placed upon the discovery
process....” (citing Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1967 (2007))).
[FN369]. Id.
[FN370]. See Twombly, 127 S. Ct. at 1967 (“It is no answer to say that a claim just shy of a
plausible entitlement to relief can, if groundless, be weeded out early in the discovery process
through careful case management given the common lament that the success of judicial
supervision in checking discovery abuse has been on the modest side.” (citation omitted)); see
also id. at 1967 n.6 (“Given the system that we have, the hope of effective judicial supervision is
slim....”).
[FN371]. Iqbal, 129 S. Ct. at 1953 (“[O]ur rejection of the careful-case-management approach is
especially important in suits where Government-official defendants are entitled to assert the
defense of qualified immunity.”).
[FN372]. Moreover, the Court may be diminishing the extent to which district courts can, and
do, successfully manage their cases and concomitant discovery through a variety of tools. See
Twombly, 127 S. Ct. at 1987 n.13 (Stevens, J., dissenting) (“The Court vastly underestimates a
district court's case-management arsenal.”); Iqbal, 129 S. Ct. at 1961-62 (Breyer, J., dissenting)
(describing various case management tools for protecting government officials from unwarranted
interference); Brief of Professors of Civil Procedure and Federal Practice as Amici Curiae
Supporting Respondents at 31-32, Iqbal, 129 S. Ct. 1937 (2009) (No. 07-1015) (describing
various case management approaches available under the Rules).
[FN373]. 608 F. Supp. 2d 465 (S.D.N.Y. 2009).
89
[FN374]. In particular, the court concluded: “The Court finds that under Twombly's plausibility
standard, [the plaintiff] Kregler's amended complaint remains at best borderline in stating a First
Amendment retaliation claim. To survive the new motion to dismiss the pleadings as modified
would require the Court to accept as true numerous conclusory allegations, to make substantial
inferential leaps, and to resolve considerable doubts in Kregler's favor.” Id. at 474; see also id. at
476 (complaint would “barely survive dismissal at this point”).
[FN375]. See id. at 476-77 (describing how denying defendants' dismissal motion would likely
lead to extensive merits discovery that would “culminate-- many months, or even years from
now, and at a financial cost of tens if not hundreds of thousands of dollars in a motion for
summary judgment that in all probability would turn on resolution [of] the same threshold
issues....”).
[FN376]. Id. at 475 (“[A]cknowledging that this case presents a close call, to minimize
additional motion practice at this stage and avert potentially unnecessary extensive discovery,”
the court permitted the parties to present affidavits, depositions, documents, live testimony, and
other evidence at a pre-trial hearing “limited to Defendants' objections to the pleadings,
specifically the threshold legal issues upon which, under the... plausibility test, the sufficiency of
Kregler's retaliation claim is grounded.”); see also Kregler v. City of New York (Kregler II), 646
F. Supp. 2d 570, 581 (S.D.N.Y. 2009) (documents).
[FN377]. See Kregler II, 646 F. Supp. 2d at 574-75, 578-81.
[FN378]. See id. at 581.
[FN379]. See In re Graphics Processing Units Antitrust Litig., No. C 06-07417 WHA, 2007 WL
2127577, at *5 (N.D. Cal. July 24, 2007) (“[If] the complaint proves to be solid save for perhaps
a single soft element for which evidence would normally be outside the reach of plaintiffs'
counsel without discovery, then it may be that a narrowly-directed and less burdensome
discovery plan should be allowed with leave to amend to follow,” but if “the complaint proves to
be so weak that any discovery at all would be a mere fishing expedition, then discovery likely
will be denied.”).
[FN380]. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) ( “Litigation, though necessary to
ensure that officials comply with the law, exacts heavy costs in terms of efficiency and
expenditure of valuable time and resources that might otherwise be directed to the proper
execution of the work of the Government.”).
[FN381]. Rule 11(b) states: “By presenting to the court a pleading... an attorney or unrepresented
party certifies that to the best of the person's knowledge, information, and belief, formed after an
90
inquiry reasonable under the circumstances:... (3) the factual contentions have evidentiary
support or, if specifically so identified, will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery....” Fed. R. Civ. P. 11(b)(3).
[FN382]. Post-Iqbal, it behooves a plaintiff facing this type of evidentiary inequity to specifically
identify those factual contentions that “will likely have evidentiary support after a reasonable
opportunity for further investigation or discovery,” Fed. R. Civ. P. 11(b)(3), in the event they are
lacking at filing. This explicit acknowledgment places the court on notice that plausibility
discovery is warranted, and potentially shields plaintiffs from a Rule 11(b)(3) challenge. See,
e.g., Kregler v. City of New York (Kregler I), 608 F. Supp. 2d 465, 475 (S.D.N.Y. 2009)
(deciding to hold a pre-dismissal preliminary hearing to flesh out the complaint's plausibility and
to discern if plaintiff properly conducted a pre-suit investigation required by Rule 11(b)(3)).
[FN383]. 577 F.3d 816, 819, 821-22, 832 (7th Cir. 2009).
[FN384]. Id. at 821 (quoting Billman v. Ind. Dep't of Corr., 56 F.3d 785, 789 (7th Cir. 1995)).
[FN385]. Id. (“[I]f the circumstances are such as to make it infeasible for the prisoner to
identify... someone before filing his complaint, his suit should not be dismissed as frivolous.”
(quoting Billman, 56 F.3d at 789)).
[FN386]. Id. (quoting Billman, 56 F.3d at 789).
[FN387]. Id.; see also id. (“Dismissal would gratuitously prevent him from using the tools of
pretrial discovery to discover the defendants' identity.” (quoting Billman, 56 F.3d at 789)).
[FN388]. See Page, supra note 8, at 465 (“[B]oth before and after Twombly, courts have
specifically permitted limited merits discovery to allow the plaintiff the opportunity to frame a
sufficient complaint.”). See, e.g., Int'l Audiotext v. AT&T, 62 F.3d 69, 70 (2d Cir. 1995)
(affirming district court's 12(b)(6) dismissal after “limited pre-answer discovery conducted
pursuant to a stipulation and order” pre-Twombly); Kendall v. Visa U.S.A., Inc., 518 F.3d 1042,
1051-52 (9th Cir. 2008) (affirming district court's 12(b)(6) dismissal of amended complaint after
court permitted plaintiffs to conduct discovery to collect facts necessary to adequately plead
antitrust violation after dismissal of initial complaint); In re Netflix Antitrust Litig., 506 F. Supp.
2d 308, 321 (N.D. Cal. 2007) (allowing for limited discovery under Twombly).
[FN389]. 542 F. Supp. 2d 218 (N.D.N.Y. 2008).
[FN390]. Id. at 222, 232 n.8.
91
[FN391]. See Bone, supra note 7, at 933 n.249 (citing cases); see, e.g., Cordero-Hernández v.
Hernández-Ballesteros, 449 F.3d 240, 244 (1st Cir. 2006); New England Data Servs., Inc. v.
Becher, 829 F.2d 286, 290 (1st Cir. 1987); Parish v. Beneficial Ill., Inc., No. 94 C 4156, 1996
WL 172127, at *4-5 (N.D. Ill. Apr. 10, 1996); cf. Reints v. Sheppard, 90 F.R.D. 346, 347 (M.D.
Pa. 1981) (recognizing a willingness to grant limited discovery in some cases, but declining to do
so in this case).
[FN392]. See discussion supra at Part III. See also Bone, supra note 7, at 933-34. Professor Bone
makes this point in his discussion of the issue: “As a threshold matter, the plaintiff should be
required to file an affidavit with her complaint describing in detail all the steps she took to
investigate the merits before filing and stating what she learned [prior to engaging in limited predismissal discovery]. This requirement would help assure that the plaintiff does not substitute
discovery for a pre-filing investigation and impose costs on the defendant without good reason.”
Id.
[FN393]. Fed. R. Civ. P. 1 (emphasis added).
[FN394]. See Wood v. GCC Bend, LLC, 422 F.3d 873, 882-83 (9th Cir. 2005) (“The first of the
Federal Rules of Civil Procedure mandates construing the rest of the rules ‘to secure the just,
speedy, and inexpensive determination of every action.”’ (quoting Fed. R. Civ. P. 1)), aff'd, 270
F. App'x 484 (9th Cir. 2008) (mem.); cf. Johnson v. Bd. of County Comm'rs, 868 F. Supp. 1226,
1230 (D. Colo. 1994) (explaining that the court is obligated to raise sua sponte ethical issues
related to compliance with Rule 1, even where parties do not (citing Schmidt v. Ford Motor Co.,
112 F.R.D. 216, 221 (D. Colo. 1986))), aff'd in part and disapproved in part, 85 F.3d 489 (10th
Cir. 1996).
[FN395]. Hill v. MacMillan McGraw-Hill Sch. Publ'g Co., C 93-20824 RPA, 1995 WL 317054,
at *1 (N.D. Cal. May 22, 1995) (“[L]itigants have an obligation to the court to refrain from
conduct that frustrates the aims of [Rule 1].”).
[FN396]. Reebok Int'l Ltd. v. Sebelen, 959 F. Supp. 553, 558 n.1 (D.P.R. 1997).
[FN397]. Brown Shoe Co. v. United States, 370 U.S. 294, 306 (1962).
[FN398]. Professor Hartnett suggests a similar approach. See Hartnett, supra note 8 (manuscript
at 46-47).
[FN399]. Fed. R. Civ. P. 8(a)(2) requires that the complaint set forth “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
92
[FN400]. See discussion supra Part IV.B.2.
[FN401]. Courts have the authority and discretion to order pre-dismissal discovery for a variety
of reasons. Therefore, the presence of an informational inequity is a justification, not a prerequisite, for a court's ordering plausibility discovery. Thus, a court is not required to make a
factual finding that there is an informational inequity in order to permit plausibility discovery.
[FN402]. An “informational inequity” refers to the difference in knowledge and access to
information between the parties. This asymmetry or imbalance is inequitable because of its
deleterious impact on civil rights and other types of claims, described supra Part IV.B.2.
[FN403]. The court may consider using an iteration of some or all of the criteria for a Rule 56(f)
request for discovery: “To request discovery under Rule 56(f), a party must file an affidavit
describing: (1) what facts are sought and how they are to be obtained; (2) how these facts are
reasonably expected to raise a genuine issue of material fact; (3) what efforts the affiant has
made to obtain them; and (4) why the affiant's efforts were unsuccessful.” Gualandi v. Adams,
385 F.3d 236, 244 (2d Cir. 2004). See, e.g., Roswell Capital Partners LLC v. Alternative Constr.
Techs., 638 F. Supp. 2d 360, 371-72 (S.D.N.Y. 2009) (discovery request denied on bare
assertion that defendant had the evidence). Courts have borrowed, by analogy, these criteria
when determining if jurisdictional discovery should be permitted in response to a Rule 12(b)(1)
motion. See Gualandi, 385 F.3d. at 245.
[FN404]. Similarly, when a court grants a motion to dismiss, it normally describes why and how
the complaint is insufficient and grants leave to amend the complaint. This enables a plaintiff to
try to address the deficiencies identified by the court. A plausibility discovery order would do the
same.
Likewise, a court may grant class certification, provided that certain measures are taken. For
example, a court may condition certification on plaintiffs' dividing the class into subclasses or
narrowing the class definition. Again, this enables a plaintiff to try to address the issues
identified by the court. While a court must remain impartial and not attempt to help any party, a
court must provide sufficient transparency to inform the parties and enable the appellate courts
adequate review.
[FN405]. Similarly, it is not uncommon for courts, in the Rule 12(d) context, to defer ruling on
the sufficiency of the complaint's allegations until after the development of a fuller record. Rule
12(d) states: “If, on a motion under Rule 12(b)(6),...matters outside the pleadings are presented
to and not excluded by the court, the motion must be treated as one for summary judgment under
Rule 56. All parties must be given a reasonable opportunity to present all the material that is
pertinent to the motion.” Fed. R. Civ. P. 12(d).
93
See, e.g., Flue-Cured Tobacco Coop. Stabilization Corp. v. U.S. EPA, 857 F. Supp. 1137, 1145
(M.D.N.C. 1994) (deferring determination of legal sufficiency of Due Process claim “until the
next dispositive stage of litigation,” rather than granting Rule 12(b)(6) motion, so that parties
could develop the factual record), partial summary judgment granted, 4 F. Supp. 2d 435
(M.D.N.C. 1998), vacated, 313 F.3d 852 (4th Cir. 2002); Evello Invs., N.V. v. Printed Media
Servs., Inc., 158 F.R.D. 172, 173 (D. Kan. 1994) (deferring determination of sufficiency of
defendant's Rule 12(b)(6) defense at “early stage” of litigation where determination of
“[w]hether or not plaintiffs have stated a claim turn[ed] on complicated factual and legal
questions”); see also Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225, 1230 (11th Cir. 1990) (declining
to affirm court's dismissal of liability claim on alternative theory where “court did not develop
the factual record required for determination” of claim).
[FN406]. See United States v. High Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993)
(“Rule 1 prevents party from flouting spirit of rules, even if party fits within their literal
meaning.” (citing Marquis Theatre Corp. v. Condado Mini Cinema, 846 F.2d 86, 89 (1st Cir.
1988))); see also Foman v. Davis, 371 U.S. 178, 181 (1962) (“It is too late in the day and entirely
contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be
avoided on the basis of such mere technicalities.”); Rodi v. S. New England Sch. of Law, 389
F.3d 5, 20 (1st Cir. 2004) (“The view that the pleading of cases is a game in which every miscue
should be fatal is antithetic to the spirit of the federal rules.”); Marquis Theatre Corp., 846 F.2d
at 89 (concluding that defendant's refusal to turn over documents solely in his possession and
necessary for plaintiff to prove case “offend[ed] the court and the spirit of the rules of procedure”
(citing Fed R. Civ. P. 1)). But see Cent. States, Se. & Sw. Areas Pension Fund v. Cent. Cartage
Co., 69 F.3d 1312, 1314-15 (7th Cir. 1995) (“[T]he need to consider the objectives in [Rule] 1
when construing all of the rules does not justify disregarding limitations explicitly built into
them....”).
[FN407]. The courts are divided over whether a district court that grants a motion to dismiss with
leave to amend can order discovery. See Hartnett, supra note 8 (manuscript at 50-51). Compare
In re Netflix Antitrust Litig., 506 F. Supp. 2d 308, 321 (N.D. Cal. 2007) (although plaintiffs'
claims were dismissed for failure to sufficiently plead the claims, “narrowly-tailored discovery”
was “permitted to go forward” post-Twombly), with In re Flash Memory Antitrust Litig., No. C
07-0086, 2008 WL 62278, at *5 (N.D. Cal. Jan. 4, 2008) (“Discovery in the absence of any
operative pleading [here, amended consolidated complaints]... does not fit easily within the
framework established by the Federal Rules.”).
[FN408]. Following plausibility discovery, plaintiff will undoubtedly request leave to amend the
complaint, potentially prompting defendant to renew its motion to dismiss.
[FN409]. See Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
94
(“[T]he mere metaphysical possibility that some plaintiff could prove some set of facts in support
of the pleaded claims is insufficient; the complaint must give the court reason to believe that this
plaintiff has a reasonable likelihood of mustering factual support for these claims.”); see, e.g.,
Henshaw v. Wayne County, No. 2:09-CV-152-TC-SA, 2009 WL 3226503, at *3 (D. Utah Oct. 1,
2009) (where plaintiff “ha[d] not shown that even with discovery, he could muster factual
support for his claims” court denied pre-dismissal discovery request and dismissed claims).
[FN410]. Giving the court the discretion to determine on a case-by-case basis what is required
ensures that the scope of plausibility discovery is appropriate. But see Bone, supra note 5, at 934
(expressing concern over judge's ability to determine appropriate amount of pre-dismissal
discovery and therefore contending that “the amount of discovery should be defined by general
rule”).
[FN411]. See discussion supra at III.A.1 (class certification).
[FN412]. See Neitzke v. Williams, 490 U.S. 319, 326-27 (1989) (stating that the Rule 12(b)(6)
procedure “streamlines litigation by dispensing with needless discovery and factfinding”).
[FN413]. See Bone, supra note 7, at 933 n.251.
[FN414]. Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1986-87 (2007) (Stevens, J., dissenting).
[FN415]. Brief for Respondents at 25, Twombly, 127 S. Ct. 1955 (No. 05-1126).
[FN416]. Twombly, 127 S. Ct. at 1987 (Stevens, J., dissenting).
[FN417]. See Iqbal v. Hasty, 490 F.3d 143, 158, 178 (2d Cir. 2007).
[FN418]. Id. at 158.
[FN419]. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1961-62 (2009) (Breyer, J., dissenting).
[FN420]. Kregler v. City of New York (Kregler II), 646 F. Supp. 2d 570, 581 (S.D.N.Y. 2009)
(describing defendant's live testimony at Rule 12(i) hearing as “equivalent of Court-supervised
testimony at depositions”).
[FN421]. Kregler v. City of New York (Kregler I), 608 F. Supp. 2d 465, 475 (S.D.N.Y. 2009)
(describing plan); Kregler II, 646 F. Supp. 2d at 577-81 (describing hearing held). Although the
court heard testimony from the plaintiff and defendants to “preserve the widest range of options
and fullest flexibility in its resolution of this matter,” it ultimately concluded that defendants
95
were entitled to dismissal on the pleadings alone. Id. at 578 n.2.
[FN422]. Rule 12(i) states: “If a party so moves, any defense listed in Rule 12(b)(1)-(7)--whether
made in a pleading or by motion--and a motion under Rule 12(c) must be heard and decided
before trial unless the court orders a deferral until trial.” Fed. R. Civ. P. 12(i). The court may
order a preliminary hearing to determine Rule 12 threshold issues sua sponte. See Kregler I, 608
F. Supp. 2d at 475 (citing Rivera-Gomez v. de Castro, 900 F.2d 1, 2 (1st Cir. 1990) (“[W]e are
confident that a federal district court has the authority to set a preliminary evidentiary hearing
sua sponte when ... the balance of practical and equitable considerations so dictates.”)).
[FN423]. Id. at 475-76; see also Greene v. WCI Holdings Corp., 136 F.3d 313, 316 (2d Cir.
1998) (“[D]ecision whether or not to hold an oral hearing on a motion to dismiss lies in the
sound discretion of the trial court.”).
[FN424]. The court also held the hearing to determine whether the plaintiff was reasonable in
alleging retaliation under Rule 11(b)(3). Id. at 475, 477. While useful, this approach should be
followed cautiously because of the chilling effect it could have on the filing of potentially
meritorious claims.
[FN425]. Id. at 477. Ultimately, the court concluded that the plaintiff failed to state a plausible
claim of retaliation and dismissed the case. The court also denied leave to replead on the grounds
of futility. Kregler II, 646 F. Supp. 2d at 581-82.
[FN426]. Kregler I, 608 F. Supp. 2d at 477.
[FN427]. Kregler II, 646 F. Supp. 2d at 581.
[FN428]. Id.
[FN429]. Id.
[FN430]. Kregler I, 608 F. Supp. 2d at 477. A bit of caution is warranted. While a court may
hold a Rule 12(i) hearing--in response to a party's request or sua sponte--to determine whether to
grant a defendant's 12(b)(6) motion, it is not clear if such a hearing is the proper vehicle to use
here. When read in conjunction with Rule 43(c) --which explicitly authorizes oral testimony to
be taken when a motion relies on facts outside the record -- an argument can be made that the
court's taking oral testimony to resolve a 12(b)(6) challenge was not contemplated by Rule 12(i).
In any event, the appropriateness of plausibility discovery does not rest on the propriety of
Kregler's use of the Rule 12(i) hearing in this manner.
96
[FN431]. Fed. R. Civ. P. 15(a)(2).
[FN432]. Fed. R. Civ. P. 8(e).
[FN433]. See Foman v. Davis, 371 U.S. 178, 182 (1962); Laurie v. Ala. Court of Criminal
Appeals, 256 F.3d 1266, 1274 (11th Cir. 2001) (“There must be a substantial reason to deny a
motion to amend.”); Martin's Herend Imps., Inc. v. Diamond & Gem Trading U.S.A. Co., 195
F.3d 765, 770 (5th Cir. 1999) (Rule 15(a) “evinces a bias in favor of granting leave to amend”
(quoting Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 597 (5th Cir. 1981))). But see Lee v.
MBNA Long Term Disability & Benefit Plan, 136 F. App'x 734, 746 (6th Cir. 2005) (stating
that, despite Rule 1's support of liberal pleading, it does not condone transforming a clearly
stated ERISA claim into a state claim).
[FN434]. See, e.g., Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000); Lopez v. Smith, 203 F.3d
1122, 1130 (9th Cir. 2000) (citing Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995)).
A plaintiff should file a motion for leave to amend the complaint with an attached proposed
amended complaint. See United States ex rel. Atkins v. McInteer, 470 F.3d 1350, 1361-62 (11th
Cir. 2006); see also Spadafore v. Gardner, 330 F.3d 849, 853 (6th Cir. 2003); Meehan v. United
Consumers Club Franchising Corp., 312 F.3d 909, 913-14 (8th Cir. 2002).
[FN435]. Cf. Foman, 371 U.S. at 182 (stating that leave should be freely given absent an
“apparent or declared reason” like “undue delay, bad faith or dilatory motive on the part of the
movant, repeated failure to cure deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment,
etc.....”).
[FN436]. Id.
[FN437]. In re Graphics Processing Units Antitrust Litig., 527 F. Supp. 2d 1011 (N.D. Cal.
2007).
[FN438]. Id. at 1013, 1017-18.
[FN439]. Id. at 1021-22.
[FN440]. Id. at 1023.
97
[FN442]. Id. at 1024. Plaintiffs alleged that the changes in pricing before and after the alleged
conspiracy were unprecedented, which the court also found conclusory. However, in response to
the court's dissatisfaction with the “before” evidence, plaintiffs contended that such information
could then be culled from public records, if necessary. Id. at 1024-25.
[FN443]. Id. at 1025, 1032. It is not clear whether a court may order plausibility discovery
following dismissal. The courts disagree on this matter.
[FN444]. Id. at 1024, 1033.
[FN445]. Id. at 1032-33.
[FN446]. Id. at 1033. Plaintiffs were tasked with identifying those facts that could be asserted in
the complaint even in the absence of additional discovery, explaining why they would make a
difference, and attaching an amended complaint that highlighted them. The court specifically
recognized the possibility that such additional facts could negate the need for pre-repleading
discovery altogether, and admonished plaintiffs to “take nothing for granted and make the best
case for a sustainable complaint.” Id.
[FN447]. Id.
[FN448]. Id.
[FN449]. Neitzke v. Williams, 490 U.S. 319, 329-30 (1989). The Court stated: “Under Rule
12(b)(6), a plaintiff with an arguable claim is ordinarily accorded notice of a pending motion to
dismiss for failure to state a claim and an opportunity to amend the complaint before the motion
is ruled upon. These procedures alert him to the legal theory underlying the defendant's
challenge, and enable him meaningfully to respond by opposing the motion to dismiss on legal
grounds or by clarifying his factual allegations so as to conform with the requirements of a valid
legal cause of action. This adversarial process also crystallizes the pertinent issues and facilitates
appellate review of a trial court dismissal by creating a more complete record of the case.” Id.
(footnote omitted) (citing Brandon v. D.C. Bd. of Parole, 734 F.2d 56, 59 (D.C. Cir. 1984)).
[FN450]. Fed. R. Civ. P. 1.
98
END OF DOCUMENT
(c) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works
Bottom of Form
99
Top of Form
FOR EDUCATIONAL USE ONLY
59 Rutgers L. Rev. 705
Rutgers Law Review
Summer 2007
Article
*705 THE DANGERS OF SUMMARY JUDGMENT: GENDER AND FEDERAL CIVIL
LITIGATION
Elizabeth M. Schneider [FNa1]
Copyright (c) 2007 Rutgers University, The State University of New Jersey; Elizabeth M.
Schneider
I. Introduction
The interconnections of procedure and gender have been the subject of much national attention,
as many federal and state Gender Bias Task Force reports have documented ways in which
gender bias impacts procedure. [FN1] These issues have also been the focus of considerable
scholarship. [FN2] In this Article, I turn to one of the most *706 important procedural devices in
federal civil procedure--summary judgment--and examine its problematic application through a
study of gender cases. Identifying a new dimension of the interrelationship between procedure
and gender, I explore the ways in which summary judgment impacts cases involving gender and
how gender impacts judicial decision making on summary judgment. I use these insights to
analyze the dangers of current summary judgment practice and propose reforms.
Summary judgment in the federal courts is an area of civil practice in which there has been
considerable change over many years. [FN3] Rule 56 of the Federal Rules of Civil Procedure
(FRCP) provides that summary judgment can only be granted if there is “no genuine issue as to
any material fact and . . . the moving party is entitled to a judgment as a matter of law.” [FN4]
Historically, summary judgment was disfavored, and was not to be granted liberally because of
the preference for jury trial. Cases that presented issues of credibility and weight of evidence
100
were deemed inappropriate for summary judgment. However, the trilogy of Supreme Court
decisions in 1986--Matsushita, [FN5] Liberty Lobby, [FN6] and Celotex [FN7]--provided
impetus and encouragement to district courts to grant summary judgment. [FN8] Federal trial
judges are now more likely to grant summary judgment, [FN9] depriving litigants of the
opportunity for jury *707 trial (and the chance to have the merits of their claims determined by a
more diverse group of decision makers). [FN10] For this reason, the federal “summary judgment
industry” [FN11] has been the subject of much recent scholarly attention. [FN12] Increasing
concern with “the vanishing trial” in federal civil cases [FN13] makes summary judgment a
particularly important subject of inquiry.
This trend toward more frequent granting of summary judgment has had troubling consequences.
In 1998, Judge Patricia Wald, a *708 former Chief Judge of the United States Court of Appeals
for the D.C. Circuit, expressed concern about the development and direction of summary
judgment in the federal courts. [FN14] She emphasized the importance of:
[E]nsuring that summary judgment stays within its proper boundaries, rather than [of]
encouraging its unimpeded growth. Its expansion across subject matter boundaries and its
frequent conversion from a careful calculus of factual disputes (or the lack thereof) to something
more like a gestalt verdict based on an early snapshot of the case have turned it into a potential
juggernaut which, if not carefully monitored, could threaten the relatively small residue of civil
trials that remain. [FN15] Other scholars have also been critical of the “new” summary judgment
[FN16] and proposed reforms of summary judgment. [FN17] Some recent scholarship has
proposed that summary judgment should be abolished on the ground that it is unconstitutional
and/or inefficient. [FN18] There are, of course, other views. [FN19] But regardless of one's view
of summary judgment in theory or as a matter of policy, summary judgment is not going away.
New decisions of the Supreme Court last Term on civil procedure underscore the Court's
enthusiasm for and endorsement of summary judgment. [FN20] My read of the current
procedural landscape, based on these and other decisions, presentations to and discussions with
many federal judges, and the *709 scope of current Advisory Committee on Civil Rules
consideration of Rule 56, [FN21] is that summary judgment is here to stay.
Summary judgment is necessarily a very case-specific and fact- and law-specific determination.
Summary judgment decision making at the trial level, and appellate review of grants of summary
judgment, involves subtle assessment of the strength of the plaintiff's case based on what may be
a very abbreviated record--assessment of the plaintiff's legal case in the context of discovery.
Traditional application of summary judgment meant that judges should not grant it if there were
material issues of fact in dispute, for issues of fact and credibility were to be assessed by the jury.
These days, however, federal judges, spurred on by the Supreme Court, pressure to clear dockets,
and perhaps even dislike of or discomfort with certain claims--whether employment
discrimination, sexual harassment, or Family Medical Leave Act cases--grant summary
judgment. Summary judgment decision making necessarily involves a tremendous amount of
discretion, and discretion can be the locus of hidden discrimination. Recent data suggest that
101
seventy percent of summary judgment motions in civil rights cases and seventy-three percent of
summary judgment motions in employment discrimination cases are granted--the highest of any
type of federal civil case. [FN22] The question I ask is, where women plaintiffs are involved, or
where gender is an issue in the case, how is summary judgment applied?
Several federal Gender Bias Task Force reports have suggested that the application of summary
judgment, at least in employment *710 discrimination cases, is problematic. [FN23] These
reports concluded that summary judgment was more likely to be granted to defendants in
employment discrimination cases involving women plaintiffs. [FN24] For example, the Eighth
Circuit Report and Ninth Circuit Report specifically discuss how gender plays a role in summary
judgment in employment discrimination cases. The Eighth Circuit Task Force conducted a
survey that revealed that “[o]ne-half of plaintiffs' attorneys and 10% of defendants' attorneys
reported that summary judgment was granted too easily to defendants in discrimination cases.”
[FN25] In addition, “[j]udges reported that summary judgments were granted to defendants
much more frequently than plaintiffs” and that “summary judgment in sex discrimination cases
was relatively rare for plaintiffs.” [FN26] The Ninth Circuit Report had similar findings and
noted that judges were often impatient with sex-based employment discrimination claims.
[FN27] Indeed, the Ninth Circuit Report found that a review of published opinions showed that
“the majority of such claims filed over the past five years have been dismissed by the district
courts, either by granting the defendant's motion to dismiss or for summary judgment.” [FN28]
Several scholars have documented and analyzed these developments on summary judgment in
sex-based employment discrimination cases. [FN29] Racial and ethnic bias is an additional
component for plaintiffs who are women of *711 color. [FN30] District Judge Jack Weinstein
has cautioned that “[t]he dangers of robust use of summary judgment to clear trial dockets are
particularly acute in current sex discrimination cases,” [FN31] and more recently, other judges
have written decisions sharply criticizing summary judgment. [FN32]
This Article addresses “the dangers of robust use of summary judgment . . . in current sex
discrimination cases,” but expands the purview of Judge Weinstein's concern. I argue that these
dangers are not just acute in sex discrimination cases, but in other cases involving women
plaintiffs in federal court. There are many subtle ways in which judicial decision making with
respect to summary judgment can be problematic: in judicial evaluations of female plaintiff
credibility (which the Gender Bias Task Force reports and other studies have recognized as
particular hurdles for women litigants and witnesses); in judicial assessment of the facts of the
case or the strength of novel claims or rejection of novel arguments “as a matter of law”; in
judicial determination of whether a “reasonable juror” could find for the plaintiff; and in judicial
diminution and trivialization of the seriousness of harms suffered by women plaintiffs seeking
redress in court. [FN33] These subtle problems of interpretation lurk in judicial assessment of
both fact and law in the two prongs of summary judgment: whether there is a “genuine issue
*712 as to any material fact” or whether “the moving party is entitled to a judgment as a matter
of law.” [FN34] The interpretation of what facts are “genuine” or “material” rests on the judge's
102
broader understanding of the legal issues presented in the case. Law is inevitably malleable. Yet,
these subtle aspects of bias may be invisible to the outside observer.
Why is the granting of summary judgment a problem? The first reason is that it ends the case for
the plaintiff, and the plaintiff does not have the opportunity for a jury trial (in those cases where
the plaintiff does have a right to jury trial). [FN35] But, of course, not every plaintiff should have
the right to jury trial--for not every case is meritorious. The purpose of summary judgment is to
separate out “necessary” trials from “unnecessary” trials, and the issue in any case in which a
motion for summary judgment is made is whether trial is “necessary.” However, in cases
involving women plaintiffs where legal arguments are frequently novel and innovative, where
subtle issues of credibility, inferences, and close legal questions may be involved, where issues
concerning the “genuineness” or “materiality” of facts are frequently intertwined with law, a
single district judge may be a less preferable decision maker than a jury. Juries are likely to be
far more diverse and bring a broader range of perspectives to bear on the problem. [FN36]
*713 Even if we do not assume that a jury would reach a different conclusion on the facts of a
particular case than a judge [FN37] (which, of course, we can never know), the presentation of
live evidence before a jury and the telling of the full story in a public setting can make an
important difference to a plaintiff, even if she ultimately loses. She will have had her “day in
court,” the facts of her case will have been heard, and arguably even authenticated. These issues
of “process” can matter a great deal to plaintiffs. [FN38] Public disclosure of legal issues also
matters in important ways to the evolution of the law. If women's experiences of harm that would
otherwise be “invisible” are heard more frequently in courts and public settings, those
experiences may ultimately be viewed by judges as constituting a legal claim, and take on legal
“visibility.” As others have argued, federal jurisprudence should be developed on a live record,
with law shaped by facts, not on summary judgment. [FN39]
The critical role of summary judgment in cases involving women plaintiffs discussed in this
Article is a new dimension of research on civil litigation, gender discrimination, and gender bias
in the federal courts. As a teacher and scholar of procedure and gender and law, and a former
civil rights lawyer, much of my teaching and writing has centered on the intersection of gender
and procedure. [FN40] This *714 Article details this intersection in the context of summary
judgment in order to deepen understanding of both gender cases and procedure. Looking at
summary judgment through the lens of gender focuses on the troubling operation of current
summary judgment practice in concrete contexts. Examining cases of women plaintiffs through
the lens of summary judgment offers new insights to analysis of gender discrimination litigation.
Many major women's rights cases that have brought about important changes in the law were
originally dismissed on summary judgment. Some of these cases were recuperated on appeal or
in the Supreme Court, where there was ultimate recognition of the merits and, indeed, the
significance, of the legal claim. [FN41] If the litigants had not been able to appeal, and there had
not been reversal on appeal, those claims would have been lost. Many other innovative claims
concerning issues of gender may have been lost because they were dismissed on summary
103
judgment and were not appealed. Thus, as Judge Wald has cautioned, the role that summary
judgment plays in cutting off the development of the law warrants concern. [FN42] In cases that
involve subtle aspects of gender bias, there are special risks.
In this Article, I explore the way in which gender plays a role in cases involving summary
judgment in federal court, utilizing both qualitative and quantitative analysis, and focusing on a
range of cases involving women plaintiffs. [FN43] I argue that judicial decision *715 making in
gender cases illustrates the way in which current summary judgment practice permits subtle bias
to go unchecked, and reveals the dangers of summary judgment generally. I do not suggest that
cases involving women plaintiffs are the only, or even the worst, examples of these problems.
My concern is with both the troubling development and use of summary judgment to dismiss
cases involving gender claims and problems with summary judgment practice generally; the
application of summary judgment in cases involving women plaintiffs in ways that suggest
gender bias, as well as the implications of increased use of summary judgment for the American
civil justice system.
In Part II, I begin with recent developments in the law and practice of summary judgment. In
Part III, I turn to the role of summary judgment in cases involving women plaintiffs, introduce
these issues with two contrasting cases involving gender claims and summary judgment, and
describe my case research on gender and summary judgment. In Part IV, I discuss summary
judgment in gender discrimination cases and in Part V, I briefly discuss tort cases. In Part VI, I
describe empirical data compiled for this Article on whether summary judgment is granted
disproportionately against women plaintiffs in federal court. In Part VII, I consider complex
issues of judge and jury decision making that underlie concerns about summary judgment in
general, and focus on these problems in the context of gender cases. In Part VIII, I discuss the
special need for cases that present subtle problems of gender to be heard through live testimony
and adversarial presentation in a public forum, and explain how summary judgment practice
reinforces the troubling “privatization” trend in federal civil litigation. In Part IX, I conclude
with thoughts on summary judgment in general and federal civil litigation involving gender
issues in particular.
II. Summary Judgment In Practice
Today, summary judgment plays a major role in federal civil litigation. [FN44] For plaintiffs,
summary judgment is the place of “do or *716 die.” Summary judgment lurks over pleading,
Rule 12(b)(6) motions to dismiss, Rule 11, discovery, and mediation or dispute resolution if the
case is diverted to a “neutral,” [FN45] for the question is always what will happen on summary
judgment. It impacts upon and is intertwined with every aspect of litigation-- ADR, pleading,
discovery, and trial. The threat of summary judgment shapes settlement even in advance of a
104
motion being filed. And when summary judgment is denied, lawyers and judges report that
defendants immediately offer to settle, often with far more generous settlement offers than they
might have otherwise considered. A shift in power from plaintiffs to defendants is the result.
[FN46]
The language of Rule 56 concerning summary judgment is complex [FN47] and the actual
process is often lengthy--a trial on paper, that is often linked to and confused with Rule 12(b)(6).
[FN48] A *717 memorandum of law and the results of discovery are usually filed in support of
the summary judgment motion. [FN49] The motion is usually based on affidavits--and there are
often questions concerning admissibility. Equivalent papers must be filed in opposition and lists
of material facts in dispute must be submitted. Since summary judgment rests on discovery,
discovery becomes even more crucial. [FN50] There are now many local rules for summary
judgment. [FN51] In some jurisdictions, like the Southern District of New York, parties have to
craft statements of material facts, which judges must look at first. [FN52] A pre-motion
conference [FN53] and certification of prior consultation [FN54] might be required before the
filing in order to narrow the issues in the case. There might even be a hearing and/or oral
argument, and *718 there could be submission of expert testimony. [FN55] Overall, there are
many hoops for the parties to jump through. Summary judgment has become a trial on paper.
There is a difference between “law” and “fact” summary judgments. In a “law summary
judgment,” the district judge is ruling that there is no legal basis for the claim--a delayed Rule
12(b)(6) motion on legal sufficiency, which takes place after discovery. In “fact summary
judgments,” the district court rules on whether there are “genuine issues of material fact” so that
the case should be heard by a jury. But these two types of summary judgment are not always
distinct. “Law summary judgments” are shaped by the facts of the case, and the district judge
will be deciding whether the plaintiff's claim can go forward as a matter of law based on a very
particular factual record. And of course “fact summary judgments” are shaped by the district
court's evaluation of the law, because it is the law that determines the relevance, weight, and
significance of facts and possible factual disputes. [FN56]
In a ruling on summary judgment, the judge writes a decision in which, if there are material facts
in dispute, the judge is often acting as fact finder, determining whether there is enough to get to a
jury. The judge draws inferences from the record and then grants summary judgment if the court
concludes that no “rational trier of fact” could find for the nonmoving party based on the
showing made *719 in the motion and response, [FN57] or to put it more directly, no reasonable
juror could find for the nonmovant or disagree with the judge. [FN58] The determination of
whether a “reasonable juror” could find for the plaintiff is key. On summary judgment, the judge
is effectively sitting as a juror and deciding whether he or she could find for the plaintiff.
There is of course discretion on the part of the District Judge--but how much discretion? [FN59]
One judge cites Liberty Lobby for the proposition that because summary judgment is a “drastic
procedural weapon,” [FN60] “trial courts must act with caution in granting it and may deny it in
105
the exercise of their discretion when ‘there is reason to believe that the better course would be to
proceed to a full trial,”’ [FN61] but this is not the predominant view. But how much discovery
will be allowed before summary judgment will be considered? Some district courts are granting
summary judgment before discovery is closed and, in any event, before a factual record is
developed. [FN62]
How much proof is enough to deny summary judgment? Most lawyers believe that the plaintiff
has to convince the judge of the merits of the case--perhaps even that the plaintiff would win the
case--to survive summary judgment, and that the primary impact of the trilogy is that it focuses
judges entirely on the sufficiency and weight of the plaintiff's proof as developed in discovery.
[FN63] But this proof is in the form of affidavits and depositions. While depositions are subject
to cross-examination, affidavits are problematic because they are not. This should mean that
affidavits are not very useful or *720 persuasive. [FN64] “Snippets” of testimony from either
party can be problematic because they are likely to be misleading. [FN65] Questions of proof
may inevitably involve issues of admissibility and judicial determination of weight of the
evidence. [FN66] Of course, it depends on the discovery that was completed and the substantive
law requirements of the claims made. This presents a fundamental conundrum of summary
judgment: issues of credibility are supposed to be decided by the jury, but in order to decide if
the proof is enough for a “reasonable juror,” the judge must implicitly decide issues of
credibility. [FN67]
The Supreme Court's decision last Term in Scott v. Harris [FN68] provides a dramatic example
of this problem. Scott involved a 42 U.S.C. § 1983 action brought by a motorist against the
police and other officials claiming use of excessive force during a high-speed chase, in violation
of his Fourth Amendment rights. The district court had denied summary judgment and the
Eleventh Circuit affirmed. In the Supreme Court, seven justices reversed the denial of summary
judgment and entered judgment for the defendants. The Justices watched a videotape of the
chase and concluded that no “reasonable jury” could find for the plaintiff. Only Justice Stevens,
writing a vigorous dissent, challenged this view. He criticized his colleagues for sitting as
“jurors,” rather than a reviewing court, in the following language:
*721 Relying on a de novo review of a videotape of a portion of a nighttime chase on a lightly
traveled road in Georgia where no pedestrians or other “bystanders” were present, buttressed by
uninformed speculation about the possible consequences of discontinuing the chase, eight of the
jurors on this Court reach a verdict that differs from the views of the judges on both the District
Court and the Court of Appeals who are surely more familiar with the hazards of driving on
Georgia roads than we are. The Court's justification for this unprecedented departure from our
well-settled standard of review of factual determinations made by a district court and affirmed by
a court of appeals is based on its mistaken view that the Court of Appeals' description of the facts
was “blatantly contradicted by the record” and that respondent's version of the events was “so
utterly discredited by the record that no reasonable jury could have believed him.”
106
Justice Stevens continues in the opinion to call the other Justices “my colleagues on the jury,”
[FN70] criticizing the Court for having “usurped the jury's factfinding function and, in doing so,
implicitly labeled the four other judges to review the case unreasonable.” [FN71] Significantly,
he notes that “[i]f two groups of judges can disagree so vehemently about the nature of the
pursuit and the circumstances surrounding that pursuit, it seems eminently likely that a
reasonable juror could disagree with this Court's characterization of events.” [FN72]
If summary judgment requires so much discovery and is so fact intensive, there is a serious
question as to whether it is worth it for a judge to do this much on paper, rather than just let the
case go forward to trial, [FN73] and implicates old procedural disputes concerning the
dichotomy between law and equity. In law, there is a presumption in favor of oral testimony,
while equity favors paper trials. [FN74]
Finally, judicial opinions on summary judgment are often so mechanistic that they become
“sliced and diced,” a process that, as Stephen Burbank puts it, “sees less in the parts by
subjecting the *722 non-movant's ‘evidence’ to piece-by-piece analysis” and is not analyzed
contextually. [FN75] Some have suggested that this is because law clerks are writing the
opinions instead of judges. [FN76] There may also be similar problems with summary judgment
cases sent to magistrates. [FN77]
A grant of summary judgment is subject to de novo review on appeal. [FN78] Appellate courts
therefore can examine the whole case on the record. Since district court judges do not always
fully explain the basis for their decisions, [FN79] it is often hard to know whether the district
court is deciding summary judgment on the basis of law or fact. Thus, it is also unclear whether
reversal is on law or fact, although it appears that reversals are generally on law. [FN80]
Scholars have argued that de novo review does not serve as an appropriate safeguard for
overzealous grants of summary judgment. [FN81] The *723 appellate court must make
determinations based on documents “merely heaped before” them. [FN82] Jeff Stempel argues
that, in the trial court, even “less than stellar trial counsel” will draw attention to certain
documents or testimony and allow for clarification, whereas a cold record on appeal presents
documents en masse for the court to review without this benefit. [FN83] Summary judgment
adjudication does not allow for the fleshing out of the facts of a case and results in the appellate
court necessarily ruling on a limited record. [FN84]
Summary judgment is widely viewed as the major procedural hurdle in federal civil litigation.
Strict standards of summary judgment in federal court and the likelihood that summary judgment
will be granted are viewed as reasons that plaintiffs would prefer to be in state court rather than
federal court. Thus, in cases that could be filed in either state or federal court, summary
judgment now plays a role in choice of forum. [FN85] And now, with the Class Action Fairness
Act of 2005, more cases that would otherwise be heard in state court will be heard in federal
court.
107
Another important development is the significant interplay between summary judgment and
Daubert on judicial determination of expert evidence. [FN87] Daubert plays a critical role in
summary *724 judgment cases because if the judge gets rid of plaintiff's expert evidence,
granting summary judgment becomes easier. Daubert is now viewed as a “summary judgment
substitute.” [FN88] Daubert has a more limited “abuse of discretion” standard of review, as
compared with the more general summary judgment de novo standard of review; thus, Daubert
may be the preferred method of district court resolution since there is greater play for district
court judges and smaller chance of reversal on appeal. [FN89]
There is no question that Daubert has changed the way that federal district judges assess expert
evidence in civil cases and has impacted summary judgment as well. A 2001 empirical study
prepared for the Rand Corporation [FN90] found that “[t]he rise that took place in both the
proportion of evidence found unreliable and the proportion of challenged evidence excluded
suggests that the standards for admitting evidence have tightened.” [FN91] The authors of the
Rand study included a special section on the interplay between Daubert and summary judgment,
and concluded that challenges to expert evidence increased summary judgments and case
dismissals. [FN92] They noted that:
This increased frequency of [summary judgment] requests may be due partly to Daubert, but it
may be driven by broader *725 trends in litigation practices that have nothing to do with
Daubert. For example, judges may have become more receptive to summary judgment requests
in an attempt to resolve cases more quickly and at lower cost. But Daubert may have led
challengers to expand the scope of their challenges to the point where they increasingly
challenged the entire basis of the case and thus more frequently requested summary judgment.
[FN93]
Although the primary impact of Daubert was thought to be in toxic tort cases, it now impacts a
wide range of cases. Daubert has been applied to antitrust cases involving economic experts,
[FN94] as well as cases involving social science experts, including gender discrimination and
gender stereotyping cases. [FN95] But in the tort context, “[t]he resulting effects of Daubert have
been decidedly pro-defendant.” [FN96] Indeed, “In the civil context, Daubert has empowered
defendants to exclude certain types of scientific evidence, substantially improving their chances
of obtaining summary judgment and thereby avoiding what are perceived to be unpredictable and
often plaintiff-friendly juries.” [FN97]
Margaret Berger has detailed how Daubert has exacerbated the reallocation of power to
defendants resulting from the prior summary judgment trilogy:
Not only are district judges granting an increasing number of Daubert motions, but in doing so
they escape the more stringent de novo standard of review that applies to grants of summary
judgment, in favor of the more lenient abuse of discretion standard that governs evidentiary
rulings on the admissibility of expert proof. If they have not abused their discretion in excluding
108
all the plaintiffs' experts on causation, they cannot have erred in granting summary judgment, as
no material facts remain in issue. [FN98] Indeed, some scholars have argued that Daubert has
effectively changed the substantive law of torts. [FN99] Others assert that Daubert's *726
elimination of jury deliberation for certain litigants has serious race and class consequences.
[FN100] The interrelationship between Daubert and summary judgment is a crucial dimension of
current summary judgment practice. [FN101]
From empirical work on summary judgment and the “vanishing trial,” we have information on
the actual practice of summary judgment in federal district courts. Longitudinal Federal Judicial
Center studies on summary judgment show a high rate of termination by summary judgment in
certain kinds of cases, particularly civil rights and employment discrimination cases. [FN102] It
also appears that there is wide variation in practice between different district courts. [FN103]
Although summary judgment is transsubstantive, like all federal procedural rules, scholars have
reported the particular use of summary judgment to dismiss sexual *727 harassment and hostile
work environment cases, [FN104] race and national origin discrimination cases, [FN105]
American with Disabilities Act (ADA) cases, [FN106] age discrimination cases, [FN107] toxic
tort cases, [FN108] and prison inmate cases. [FN109] “Vanishing trial” statistics also suggest
that jury trials are decreasing, but bench trials are increasing. [FN110]
There have been critiques of summary judgment by many scholars. [FN111] Arthur Miller
argues that consideration of objective standards of “human behavior, reasonableness, and state of
mind [are] matters historically considered at the core of the province of jurors.” [FN112] There is
serious concern whether district courts have abdicated their norm-developing roles. [FN113]
Federal jurisprudence is now being made on summary judgment. [FN114] Judges are making
summary judgment decisions without a full record; these decisions are “arid, [and] divorced from
[a] full factual context. [FN115] District court judges are slicing and dicing issues of material
fact and substantive legal context into smaller and smaller parts so that the decision *728 almost
defies common-sense understanding of the full picture and the context. [FN116] District judges
are now evaluating intent and credibility and acting as fact-finders. Determination of summary
judgment almost completely rests on assessment of the plaintiff's case. District judges are often
disinclined to find genuine material issues of fact or to “permit discovery to unearth them,”
[FN117] and decide “on the basis of their predilections about the worthiness of the case [rather]
than . . . [on] the principles encompassed in Rule 56.” [FN118] Judges are demanding more
evidence at summary judgment than would suffice to support a jury verdict. [FN119]
There are also new issues with the role of summary judgment in a “settlement” as opposed to a
“trial” culture. [FN120] Among the most important concerns are docket pressures. Some district
and circuit judges, such as Judge Richard Posner, have expressed their concerns regarding the
use of summary judgment to alleviate “caseload pressures” and simply clear the civil calendar.
[FN121] In a recent article, Judge Mark Bennett, Chief Judge of the United States District Court
for the Northern District of Iowa, criticized judges for overuse of summary judgment. [FN122]
He observed:
109
I think that the trend away from jury trials toward a new focus on expensive discovery and
summary judgment has been fueled by the complicity of federal trial and appellate judges. The
rise *729 of summary judgment as a means of trial avoidance has been made easier by the U.S.
Supreme Court's trilogy of decisions in 1986, so that summary judgment is now the Holy Grail
of “litigators.” In my view, trial and appellate judges engage in the daily ritual of docket control
by uttering too frequently the incantation, “We find no material question of fact.” [FN123]
One district judge described the dilemma of contemporary summary judgment practice in the
following way: “[C]urrent practice mandates tedious analysis in factually complex cases, and
rulings that avoid jury deliberations based on sheer guesswork or the popular appeal or
unpopularity of the witnesses.” [FN124] He concludes: “If a reversion toward historic hostility to
summary judgment practice is desirable, I leave it to rule-makers and the appellate courts to
provide guidance.” [FN125]
III. Gender and Summary Judgment--An Introduction
Cases that involve women plaintiffs and issues of gender underscore the problems of summary
judgment. These cases inevitably involve judicial evaluation of credibility, which many social
science studies and Gender Bias Task Force reports have identified as a serious problem for
women litigants, particularly women plaintiffs (as well as women witnesses, expert witnesses,
and lawyers). [FN126] These cases involve judicial assessment of what are frequently
controversial, novel, or innovative claims, and they may raise questions of harm or bias with
which many district judges are unfamiliar or uncomfortable. In ruling on summary judgment
motions, judges frequently slice and dice law and fact in a technical and mechanistic way
without evaluating the broad context on an arid record, a record that is limited to discovery.
[FN127]
A. Ganzy and Declue
To introduce some of these issues, I turn to two decisions on gender and summary judgment
written by two very different federal judges--Judge Richard Posner of the Seventh Circuit in
DeClue v. Central Illinois Light Co., [FN128] and Judge Jack Weinstein of the *730 Eastern
District of New York in Ganzy v. Allen Christian School. [FN129] While both are employment
cases, they provide a useful illustration of the subtle ways in which gender comes into play with
summary judgment.
Audrey DeClue, a woman whom Judge Posner referred to as a female “lineman” for an electric
company, alleged hostile environment sexual harassment, resting her claim on incidents that
110
included “a coworker's deliberately urinating on the floor near where the plaintiff was working,
repeated shoving, pushing, and hitting her, sexually offensive touching, exposing her to
pornographic magazines,” and what Posner called “failing to make adequate provision for
restroom facilities.” [FN130] Translated more directly, this meant there were no bathroom
facilities because the male linemen (who were all the other workers) all went to the bathroom in
public. [FN131] The plaintiff ran up against the 300-day statute of limitations rule on all the
incidents except the bathroom claim. [FN132] The district court granted summary judgment, and
Posner wrote an opinion for the Seventh Circuit majority affirming this decision. [FN133] Posner
held that the plaintiff's claim for what he called “civilized bathroom facilities” constituted an
arguable claim for “disparate impact” discrimination, because it impacted women more
adversely, but was not a hostile environment claim. [FN134] The case, however, was not
litigated as a “disparate impact” case. He therefore upheld summary judgment and dismissal of
Audrey DeClue's bathroom claim, and her entire case, as a matter of law.
Judge Ilana Rovner wrote a stinging dissent. [FN135] She took a very different view of the
seriousness of the bathroom claim. [FN136] She began her opinion with a personal story about
bathroom facilities for women judges in her own court, and wrote that “[w]omen know that this
disparity, which strikes many men to be of secondary, if not trivial, importance, can affect their
ability to do their jobs in concrete and material ways.” [FN137] She went on to detail this harm:
As recently as the 1990s, for example, women elected to the nation's Congress-- which had
banned gender discrimination in the workplace some 30 years earlier-- found that without careful
planning, they risked missing the vote on a bill by *731 heeding the call of nature, because there
was no restroom for women convenient to the Senate or the House chamber. [FN138]
Judge Rovner argued that although DeClue's restroom claim could be viewed within a “disparate
impact” framework, it could also be viewed as creating a hostile work environment:
[W]hen, in the face of complaints, an employer fails to correct a work condition that it knows or
should know has a disparate impact on its female employees-that reasonable women would find
intolerable-it is arguably fostering a work environment that is hostile to women, just as surely as
it does when it fails to put a stop to the more familiar types of sexual harassment. Indeed, the
cases teach us that some employers not only maintain, but deliberately play up, the lack of
restroom facilities and similarly inhospitable work conditions as a way to keep women out of the
workplace. [FN139] Rovner went on to closely analyze the evidence presented at trial
concerning bathroom facilities within the framework of a hostile environment. She criticized
Posner's technical and formalistic distinction between disparate impact and hostile environment
claims on the ground that, as she put it, “Discrimination in the real world many times does not fit
neatly into the legal models we have constructed.” [FN140] She would have reversed the district
court's grant of summary judgment on this claim as a matter of law. [FN141]
111
In Ganzy, we see a different scenario. Michelle Ganzy was an unmarried teacher in a churchaffiliated school, who was fired when she became pregnant. [FN142] She sued the school under
Title VII and state employment statutes. [FN143] The school took the position that the plaintiff
was fired because of sexual activity outside of marriage, which violated the school's religious
policy, and not because of pregnancy, which would constitute gender discrimination. [FN144]
Plaintiff was offered reemployment following the birth of her child, which seemed to support the
plaintiff's view that the basis of her termination was the pregnancy, not nonmarital sex. [FN145]
In considering summary judgment, Judge Weinstein wrote a lengthy opinion exploring the issues
of pregnancy, sexuality, women's employment and discrimination in faith-based contexts, and
placing *732 these issues in a broader social and historical framework. [FN146] Weinstein
emphasized that there was a sparse record; for example, there was no evidence as to whether any
other teacher had been fired for sex outside of marriage. [FN147] But he effectively held that
there were genuine issues of material fact as to “whether it was pregnancy or fornication that
caused the Defendant to dismiss the Plaintiff” and went on to underscore the important role of
the jury. [FN148] Weinstein ruled that:
The complex history of women's rights, employment, and sexuality . . . as well as normal
methods of determining witnesses' credibility, might lead different jurors to evaluate differently
the veracity of the witnesses and the honesty of the Defendant's proffered reason for dismissal.
Under such circumstances, a decision by a cross-section of the community in a jury trial is
appropriate. [FN149]
Although both of these cases are employment cases raising explicit gender issues, and thus are
cases that the Gender Bias Task Force reports warn may involve gender bias in the operation of
summary judgment, they illustrate broader problems with judicial decision making with respect
to summary judgment. In affirming the district court's dismissal on summary judgment in
DeClue, Judge Posner trivializes the plaintiff's bathroom claim and rejects this claim as part of a
broader problem of hostile environment, although the employer's failure to provide a bathroom
could easily be understood as “hostility” that would send a message to a worker not to apply
there. Here, summary judgment was used as a weapon to cut off plaintiff's redress and to stunt
the development of the law (as well as penalizing the plaintiff for what may have been her
counsel's inadequacy). Judge Rovner's dissent engages Posner on precisely this point--the
destructive role that summary judgment can play in dismissing novel claims. In contrast, Judge
Weinstein's affirmative use of historical and social context to elucidate and underscore the
determination of “issues of material fact,” and shape the need for jury consideration, utilizes a
core insight of both feminist legal theory, and what I would argue is almost common sense--that
history, social context, and broader themes of pattern and practice shape our understanding of the
significance of “facts” and “law” in individual cases. Law is shaped by “facts” and fact
determination is shaped by “law.” These are crucial dimensions of judicial decision making in
summary judgment that have a particular impact on gender cases.
112
*733 Insights from feminist legal theory that help make visible the often hidden role of gender
are useful in considering these two cases and the case studies that follow. [FN150] First, as
already mentioned, gender claims cannot be assessed in any particular case without looking at
larger context and patterns, for these patterns illuminate inequality that may be invisible in a
particular case or set of facts. [FN151] This is the dispute between Judges Posner and Rovner in
DeClue. Second, gender cases may shape the development of doctrine generally and “migrate” in
ways that are problematic, so that more onerous requirements for proving legal claims can
develop when the claim becomes cognitively associated with women and injuries linked to
women. [FN152] Legal doctrine can be malleable and can highlight or suppress discrimination.
[FN153] The exercise of discretion in any doctrinal area is an important place to look for the
operation of patterns of race or gender bias that result from overt prejudice or subconscious
perceptions. [FN154] Finally, procedure can be an important locus of hidden gender
discrimination, for procedure shapes how substantive law is applied, but often looks more
“neutral.”
B. Case Studies On Gender and Summary Judgment
Because I wanted to examine summary judgment cases involving women plaintiffs, I have read
many judicial decisions and reported cases on summary judgment. My purpose was to analyze
the ways in which judges decided summary judgment cases involving women plaintiffs, looking
for possible examples of subtle gender bias. [FN155] In *734 the next sections, I look at two
different sets of cases involving women plaintiffs in federal court. First, I look at cases that raise
explicit gender discrimination arguments, whether in employment discrimination or in some
other context. Second, I look at tort cases in federal court where the plaintiff is a woman, but
where gender discrimination is not the subject of the case. I chose these two areas because they
involve different dimensions of gender claims. [FN156] In the first set of cases, gender is explicit
and is central to the legal claim for which relief is sought; in the second, gender is in the
background.
My thesis is not that the dangers of summary judgment arise only in cases of women plaintiffs,
but that they are particularly acute in these cases and that we can learn a great deal about the
dangers of summary judgment in general by examining them. Others have looked at cases
involving racial discrimination and found similar problems. [FN157] We do not know how race
and gender compare, although these are frequently overlapping categories rather than discrete
cases. One scholar concludes that the situation is worse where race is concerned. [FN158] We do
not know if gender-based claims are thrown out more often than comparable claims involving
employment discrimination based on age and race. [FN159]
*735 Before I turn to the case studies, I offer a number of caveats. First, I do not read these
published opinions to draw empirical conclusions about the differential impact of summary
judgment on the basis of sex, but solely to provide a “snapshot” of how judges handle summary
113
judgment in cases involving women plaintiffs. [FN160] Second, reading and evaluating a district
court decision on summary judgment based on a published opinion, or even a circuit court
decision affirming or reversing a grant of summary judgment, is necessarily limited since the
reader is not reviewing the entire record submitted to the district court. In addition to the actual
record, affidavits, depositions, motions, and responses on summary judgment, there might be
representations to judges by lawyers in conferences or off the record that could not be retrieved
or evaluated. And in many of the cases in which the circuit court reverses a grant of summary
judgment by a district judge, the district court opinion is not published. Here, with whatever
published judicial materials I have available, I am necessarily interpreting the opinion (or
opinions, if the case is appealed), sometimes reading between the lines to explore what is going
on. Some of the cases that I discuss involve district court grants of summary judgment in which
circuit courts reversed the dismissal on summary judgment, or in which they affirm but with a
dissenting opinion. I discuss these cases because it is important to see the disagreement between
the district court and the circuit court on what is presumably the same record. And in any event,
district court decision making is significant and can have a broad impact, even if it is eventually
reversed.
Finally, drawing conclusions based on summary judgment cases involving different substantive
legal claims is arguably difficult because every summary judgment case involves different
substantive legal issues. The summary judgment decision is particular to the specific legal claims
and issues that are presented in the case, the facts of the case as developed in discovery and
presented on summary judgment, and the procedural burdens that accompany the substantive
law. One could argue that some of the problems that I *736 describe in the context of summary
judgment really reflect judicial discomfort or disagreement with substantive law in the particular
area, rather than with the application of summary judgment. Clearly there is an intersection
between the two. Judges frequently use procedural rules in general and summary judgment in
particular to resist or make new rulings on substantive law. [FN161]
However, I purposely look at cases in a number of different substantive areas in order to explore
whether there are common ways that gender may impact judicial decision making in summary
judgment. The cases that follow are a rich source of information on judicial decision making; not
empirical data to be sure, but more than anecdotal evidence, more than what District Judge Lee
Rosenthal, Chair of the Standing Committee on Rules of Practice and Procedure, has called
“anecdata.” [FN162] I find common themes in summary judgment decision making, regardless
of the different substantive legal and factual contexts. Summary judgment provides a “crosscutting” framework for, and an important procedural perspective on, subtle dimensions of gender
bias in the courts.
The case studies in the sections that follow illustrate important themes in summary judgment
practice introduced by DeClue and Ganzy. First, they suggest that current summary judgment
practice may allow revival of a narrow proceduralism that can foreclose the development of
novel claims. Second, they reveal the importance of attribution of credibility to analysis of
114
complex claims and matters involving gender: judicial determination of whether a “reasonable
jury” might find for the plaintiff on summary judgment inevitably involves assessment of
plaintiffs and other witnesses' credibility. Third, these cases highlight the elusive connections
between the fact-law distinction, burden of proof, use of experts, and why these things matter,
given the complex interrelationship of fact and law in summary judgment. They underscore the
need for judges to bring a broader range of information to bear on summary judgment decision
making and to interpret the law on the basis of a full factual record. They highlight the
significance of who the decision maker is and the *737 importance of public consideration and
scrutiny in assessment of claims of gender discrimination.
DeClue and Ganzy illustrate issues that are especially problematic in these cases: 1) judges
minimizing the harm that is claimed by the woman plaintiff; 2) judges making credibility
determinations that accord less credibility to the woman plaintiff and frequently drawing
inferences against the woman plaintiff; 3) judges doing fact-finding themselves and actually
weighing the evidence, not simply determining if there are genuine issues of material fact that
preclude summary judgment; 4) judges slicing and dicing plaintiffs' legal claims to decide that a
claim is not cognizable as a matter of law when the law is not clear, or deciding that the facts do
not support the legal claim as opposed to looking at the record as a whole; 5) judges demanding
more proof from plaintiffs than what summary judgment requires (and what the plaintiff's proof
would be at trial) in determining the issue of whether a “reasonable juror” would find for the
plaintiff, and dismissing when that level of proof is not met; 6) judges confusing and failing to
distinguish between law and fact; and 7) the role of Daubert decision making in strengthening
and reinforcing dismissal on summary judgment. These issues are explored in the following
Parts.
IV. Summary Judgment Decision Making In Gender Discrimination Cases
In this Part, I examine a wide range of gender discrimination cases to see how summary
judgment operates. I look at major women's rights cases that were dismissed on summary
judgment and then reversed on appeal, leading to important decisions that changed the law and
resulted in new understandings of sex discrimination. I examine innovative arguments that have
been cut off at summary judgment. In many of these cases, district courts have thwarted the
development of the law through rulings on summary judgment. Although in some cases circuit
courts reversed problematic grants of summary judgment, in many cases they did not.
The specific area of gender discrimination litigation that has been most explored with respect to
summary judgment is employment discrimination. These are the cases that several of the Gender
Bias Task Force reports identified as problematic, both in terms of judicial attitudes and,
specifically, summary judgment. [FN163] There is now extensive literature on problems of
115
cognitive bias in gender discrimination cases in employment and analyses of how *738 poorly
employment discrimination plaintiffs fare in federal court. [FN164] Serious sex discrimination
still exists--in overt forms in many areas--although some argue that it is subtler. “By 2000,
employment discrimination cases constituted nearly 10 percent of federal civil cases.” [FN165]
Scholars such as Theresa Beiner, [FN166] Ann McGinley, [FN167] Isabel Medina, [FN168] and
Eric Schnapper [FN169] have identified summary judgment as problematic in these cases,
particularly in cases of sexual harassment. In the following sections I discuss how summary
judgment impacts a wide range of gender discrimination cases in a number of different ways.
*739 A. District Court Assessment of Reasonableness
In order for a district court to conclude that a case is inappropriate for summary judgment, the
court has to decide that a “reasonable juror” could find for the plaintiff. Thus, a district court's
assessment of what would be reasonable for a juror to find is crucial.
“Maternal wall” or “sex-plus” cases--cases in which there are allegations of caregiver
discrimination--are cases where there are likely to be problems on summary judgment, because
the claims are novel. [FN170] In Back v. Hastings on Hudson Union Free School District,
[FN171] Elana Back, an elementary school psychologist, sued under 42 U.S.C. § 1983, claiming
that she was denied equal protection when her superiors campaigned to deny her tenure. They
questioned her commitment to the job when she returned to work after having a baby, despite the
fact that she had received several outstanding performance reviews before and after giving birth.
She alleged that as her tenure review approached in 2000, two superiors repeatedly questioned
whether she would be able to work a full day. One allegedly said “she did not know how she
could perform [her] job with little ones” and it was “not possible for [her] to be a good mother
and have this job.” [FN172] Her bosses also questioned whether she would show the same level
of commitment once she had tenure, given that she was raising a family. [FN173] She alleged
that they encouraged parents who had complained about her in the past to put their complaints in
writing, and that she began getting negative evaluations of her performance, which she argued
were a pretext for discrimination. [FN174] District Judge Brieant granted summary judgment for
the defendants, finding in part that the superiors' comments were “stray remarks” that were not
evidence of sex discrimination and that Back had failed to prove that the reasons given for
denying her tenure were pretextual. [FN175]
The Second Circuit reversed the grant of summary judgment. Judge Calabresi noted that the case
presented “a crucial question: *740 What constitutes a ‘gender-based stereotype?”’ [FN176] He
stated that “it takes no special training to discern stereotyping in the view that a woman cannot
‘be a good mother’ and have a job that requires long hours, or in the statement that a mother who
received tenure ‘would not show the same level of commitment [she] had shown because [she]
had little ones at home.”’ [FN177] The court ruled that there was sufficient evidence in the
116
record to show intentional discrimination on the part of her two direct supervisors, and remanded
the case for trial with respect to them. [FN178]
In Plotke v. White, [FN179] Dr. A. Jane Plotke sued the Secretary of the Army under Title VII,
alleging that the Army had unlawfully terminated her from her employment as a historian on the
basis of her gender. [FN180] The district court dismissed her claims of gender discrimination
and pretext on summary judgment and the Tenth Circuit reversed. [FN181] Judge Stephanie
Seymour, writing for the court, carefully analyzed of all the evidence presented below and
concluded that Dr. Plotke had “established a prima facie case of gender discrimination” and had
also “demonstrated genuine issues of material fact as to pretext.” [FN182]
Judge Seymour emphasized that a reasonable juror could find for Dr. Plotke in light of the
following facts:
Dr. Plotke was the first and only female historian hired at Fort Leavenworth and Dr. Lackey
informed her she was hired largely because of administrative pressures to employ a woman at the
facility. Likewise, in contrast to her male counterpart, Dr. Bernstein, Dr. Plotke's job duties were
generally limited to clerical and manual tasks, and she was prohibited from engaging in higherlevel functions within the CTC-WIN due to the unexplained delay in delivering her security
clearance. Many of her male colleagues, at least one of whom had not achieved the same level of
education as she had, referred to her as Jane while referring to other male staff members with
their academic titles of “Dr.” [FN183]
Judge Seymour highlighted these and other facts, such as Dr. Plotke being called a “femi-Nazi”
and “wire-head,” comments “advising her that she ‘should be quiet and not make [her]self
noticed,’ remarking that her presence would prevent the all-male *741 group from ‘sitting
around drinking beer, smoking cigars and farting’ on a professional staff ride,” comments
“disparaging Dr. Plotke's professional competence and yelling at her to ‘keep her mouth shut’ in
the presence of her peers and supervisor.” [FN184] Judge Seymour emphasized that “[o]n a
motion for summary judgment, the district court is required to review the record ‘taken as a
whole,”’ [FN185] and that “[a] reasonable jury could infer from the [evidence] that unlawful
gender bias was a motivating factor in [the] Army's adverse employment decision.” [FN186]
In Hocevar v. Purdue Frederick Co., [FN187] a woman employee brought hostile work
environment and retaliation claims against her employer. Marcia Hocevar was a pharmaceutical
sales representative whose extremely abusive supervisor “distributed sexually explicit material at
business meetings . . . made threats of violence towards female staff members . . . [and]
constantly referred to women as bitches.” [FN188] The district judge granted summary judgment
on both claims, and the Eighth Circuit, in a divided opinion, affirmed summary judgment on the
hostile environment claim and reversed on the retaliation claim. [FN189] In an opinion
dissenting in part, Judge Lay argued that summary judgment was inappropriate because there
were genuine issues of material fact on the hostile work environment claim. [FN190] Judge Lay's
117
opinion carefully analyzes the proof submitted below and concludes that, under a totality of the
circumstances test, there was sufficient evidence for the case to reach a jury. [FN191]
In three other opinions, Judge Lay continued to vigorously object to summary judgment decision
making on gender cases in the Eighth Circuit. He wrote dissenting opinions in cases affirming
grants of summary judgment against women plaintiffs in employment cases in the Eighth Circuit.
In Melvin v. Car-Freshener Corp., [FN192] Lucille Melvin claimed that she was “terminated in
retaliation for suffering a work related injury and filing a workers' compensation claim.”
[FN193] The district court granted summary judgment and a panel of the Eighth Circuit
affirmed. [FN194] Judge Lay, writing in dissent, found that the plaintiff had “presented sufficient
evidence from which a *742 reasonable jury could infer that she was terminated because her
injury qualified her for workers' compensation benefits.” [FN195] He argued that there were
inconsistencies in Car-Freshener's explanations, such as economic reasons for her firing.
[FN196] He explained his decision with the following statement:
Too many courts in this circuit, both district and appellate, are utilizing summary judgment in
cases where issues of fact remain. This is especially true in cases where witness credibility will
be determinative. In these instances, a jury, not the courts, should ultimately decide whether the
plaintiff has proven her case. Summary judgment should be the exception, not the rule. It is
appropriate “only . . . where it is quite clear what the truth is . . . for the purpose of the rule is not
to cut litigants off from their right of trial by jury if they really have issues to try.” [FN197]
This theme of witness credibility continued in Judge Lay's dissenting opinion in Guerrero v. J.W.
Hutton, Inc., [FN198] where Marcie Guerrero sued her former employer, J. W. Hutton, in Iowa
state court, claiming that “she was owed a bonus under the Iowa Wage Payment and Collection
Act (IWPCA) and overtime under the Fair Labor Standards Act (FLSA)” after her employment
as a subrogation analyst was terminated. [FN199] Hutton removed the case to federal court and
counterclaimed for breach of a noncompete agreement. [FN200] The district court granted
Hutton's motion for summary judgment and the Eighth Circuit affirmed summary judgment, with
a dissent from Judge Lay. [FN201] Judge Lay began his opinion with the statement, “Credibility
is the matrix of the factual dispute in this case. Specifically, genuine issues of material fact
remain on Guerrero's IWPCA claim that preclude summary judgment.” [FN202] He described
conflicts in the evidence that he viewed as resting on credibility of the parties generally, and
Marcie Guerrero's credibility specifically. [FN203] He described these credibility issues as
“obvious” and concluded that the case was inappropriate for summary judgment. [FN204]
*743 Finally, in Green v. Franklin National Bank of Minneapolis, [FN205] Linda Green alleged
racial harassment and hostile work environment, discriminatory discharge, and retaliation under
Title VII and 42 U.S.C. § 1981, and “whistle-blowing under the Minnesota Whistleblower Act
for her reporting of discrimination at Franklin National Bank.” [FN206] Green, an African
American woman employed as a bank teller, worked with a white man, who, according to her
deposition testimony, called her “monkey,” “black monkey,” and “chimpanzee,” and told her
118
that she should wear dreadlocks. [FN207] The majority affirmed the district court grant of
summary judgment on all of Green's claims, [FN208] and Judge Lay “dissent[ed] on the issue of
Green's federal retaliation and Minnesota state whistleblower claims.” [FN209] Again, Judge
Lay closely analyzed Green's deposition testimony and concluded that “a reasonable jury could
easily infer pretext.” [FN210]
Jennings v. University of North Carolina at Chapel Hill, [FN211] dealt with claims of sexual
harassment under Title IX and 42 U.S.C. § 1983 were brought by two former University of
North Carolina varsity women's soccer players against the women's soccer coach, Anson
Dorrance, the assistant coach, the athletic trainer, and administrators at UNC-Chapel Hill.
[FN212] At forty-five years old, Anson Dorrance was the most powerful intercollegiate women's
soccer coach in the United States (because UNC was one of the best women's intercollegiate
soccer teams in the country at the time). [FN213] He asked team members “who are you f--ing?” and made comments to them regarding sexual partners. [FN214] He touched team
members frequently and asked them questions and made comments that suggested his
inappropriate interest in their sexual activities. [FN215] On a detailed record of truly shocking
statements, the district judge granted the defendant's motion for summary judgment. [FN216]
The Fourth Circuit first affirmed the grant of summary judgment, with a strong *744 dissenting
opinion from Judge M. Blane Michael. [FN217] After rehearing en banc, in a decision written by
Judge Michael, the Fourth Circuit vacated the district court's grant of summary judgment on the
Title IX claim and on the § 1983 claims against some of the defendants. [FN218]
Jennings is a classic example of the problem of both district and circuit courts taking a slice and
dice approach to summary judgment. The majority opinion, written by Judge James Dever,
analyzes each part of the plaintiff's claims, but does not look at the evidence in a holistic way.
Judge Dever focuses on the fact that Coach Dorrance did not have a sexual relationship with
either of the individual plaintiffs, that his comments were part of ordinary locker-room banter,
and that it was important to differentiate comments that were “merely vulgar and mildly
offensive” from those that were “deeply offensive and sexually harassing.” [FN219] Yet Judge
Dever clearly recognized that the coach's comments were more than “mildly offensive” since his
opinion does not cite the actual words that the coach spoke but disguises them with a series of
asterisks. [FN220]
In his dissent in the first Fourth Circuit decision, and his majority opinion in the rehearing en
banc decision, Judge Michael writes that Melissa Jennings was entitled to have her day in court.
[FN221] He rejects the majority view that the coach's comments were locker-room language that
was to be expected, and quotes the coach's “sexually charged comments” in full from the record
below: his unflattering comments about the players' physical appearances, his views of their sex
appeal, and his comments concerning sexual fantasies that he had about them. [FN222] He
highlights the power imbalance between the coach and the players and the players' dependence
on him for any future career in soccer to which they might aspire. [FN223] He concludes that the
coach's comments and behavior raise serious questions about whether there were violations of
119
gender equity and sexual harassment laws and that a reasonable juror could reach that conclusion
on the record presented. [FN224]
District court attitudes on the “reasonableness” of jury determination on summary judgment not
only affect judicial decision making on summary judgment, but can persist throughout a case and
affect other procedural decisions. One example is the procedural *745 history of Sorlucco v.
New York City Police Department, [FN225] involving employment discrimination claims by a
woman police officer who was raped and sexually assaulted by another officer, and was
subsequently terminated from her job. [FN226] District Judge Michael Mukasey first dismissed
Karen Sorlucco's claims of gender discrimination in violation of § 1983 and Title VII on
summary judgment, [FN227] but this decision was reversed by the Second Circuit. [FN228]
After the case was remanded, went to jury trial, and the plaintiff won substantial damages, Judge
Mukasey granted judgment as a matter of law to set aside the jury verdict and a motion for a new
trial; he was again reversed by the Second Circuit. [FN229] Here, the judge's initial summary
judgment determination and view of “reasonableness” permeated the entire case, shaping the
decision to grant judgment as a matter of law. [FN230] Judge Mukasey's resistance to
“reasonableness,” first reflected in his summary judgment ruling, clearly persisted and shaped his
ultimate decision to set aside the jury verdict.
B. Summary Judgment Decisions “On The Law”
There are many gender cases in which the district courts have dismissed on summary judgment
as a matter of law, ruling that there really were no “legal” claims. Over the last forty years, as
women's rights cases first began winding their way through the courts, many district courts
granted summary judgment to these claims at the trial level. In many of these cases, district
courts were narrow and cautious in their legal interpretation and held that plaintiffs had no
cognizable claim as a matter of law. In some of these cases, the circuit court, the Supreme Court,
or both ultimately reversed the district court. As mentioned earlier, these decisions should not be
viewed as pure “law” cases because the district courts' *746 rulings on and assessments of the
law, and the circuit or Supreme Court's reversal of these rulings, are inevitably shaped by the
facts of each case.
Early examples of cases in this vein are Mississippi University for Women v. Hogan, [FN231]
California Federal Savings & Loan Ass'n v. Guerra, [FN232] International Union v. Johnson
Controls, Inc., [FN233] Burlington Industries, Inc. v. Ellerth, [FN234] and Jackson v.
Birmingham Board of Education. [FN235] All of these cases involved innovative claims of
inequality in education or employment that district courts rejected on summary judgment as a
matter of law, and were later reversed by circuit courts or the Supreme Court.
Nevada Department of Human Resources v. Hibbs [FN236] is a more recent example of this
phenomenon. In Hibbs, a husband who was unable to take off from work to care for his severely
120
ill wife sued the state of Nevada for denial of family leave under the Family Medical Leave Act
(FMLA). [FN237] The district court dismissed the FMLA claim on summary judgment as a
matter of law on the basis of Eleventh Amendment immunity and prior decisions of the Supreme
Court interpreting the Eleventh Amendment. [FN238] The circuit court reversed the district
court's grant of summary judgment and the Supreme Court affirmed. [FN239] Justice Rehnquist's
decision for the Court emphasized the importance of the FMLA as a matter of law and policy in
light of the compelling facts of the case. [FN240] He concluded that *747 because of the
importance of the FMLA claim, precedent on Eleventh Amendment immunity was not
applicable to these claims. [FN241] The Supreme Court's surprising decision on the immunity
issue was shaped by its view of the importance of the FMLA and the factual record below.
[FN242] Commentators have suggested that Justice Rehnquist's experience helping his daughter,
a single mother who worked full time, with child care may have affected his view of family
caretaking and the importance of the FMLA. [FN243]
Another recent Supreme Court case, Pennsylvania State Police v. Suders, [FN244] involved an
analogous procedural context. Nancy Suders worked as a police communications expert for the
Pennsylvania State Police (PSP). [FN245] She sued the PSP, alleging that the sexual harassment
by her supervisors, which caused her to resign, constituted a constructive discharge. [FN246]
The district court dismissed her claims on summary judgment, interpreting Burlington Industries,
Inc. v. Ellerth [FN247] and Faragher v. City of Boca Raton [FN248] to preclude her action.
[FN249] On appeal to the Third Circuit, Judge Julio Fuentes reversed on the ground that there
were genuine issues of material fact that precluded summary judgment on Suders's claims of
both hostile work environment and constructive discharge, and then ruled as a matter of law that
constructive discharge was a “tangible employment action” within the meaning of Ellerth and
Faragher; PSP was precluded from raising an affirmative defense to vicarious liability or
damages for sexual harassment by supervisors. [FN250] Finally, the Supreme Court held that, as
a matter of *748 law, there was a constructive discharge and reiterated that the employer has the
burden to demonstrate the existence of an effective remedial process and the employee's
unreasonable failure to utilize that process. [FN251]
In Jespersen v. Harrah's Operating Co., [FN252] the Ninth Circuit Court of Appeals, sitting en
banc, affirmed and reversed a district court ruling granting summary judgment. Darlene
Jespersen claimed that a Harrah's casino gaming policy, which required female, but not male,
bartenders to wear makeup, violated Title VII. [FN253] The Ninth Circuit ruled that the relevant
legal standard was whether the makeup policy imposed on the plaintiff created an unequal
burden on the plaintiff's gender, and held that the plaintiff had failed to present sufficient
evidence of such an unequal burden. [FN254] This is an example of summary judgment “on the
law,” in which a district court and the circuit court clarify legal standards in a controversial and
developing area of the law. [FN255]
Another example of a grant of summary judgment as a matter of law where novel gender claims
are involved is EEOC v. National Education Ass'n, Alaska. [FN256] In this case, the EEOC
121
brought a Title VII action against the employer on behalf of three women employees, alleging
that the employer created a sex-based, hostile work environment and constructively discharged
one of the employees. [FN257] The sex-based harassment claim alleged that a supervisor,
Thomas Harvey, was directing harassing conduct at women employees in violation of Title VII,
including shouting, the use of foul language, and hostile physical actions, though the behavior
was not explicitly sex- or gender-related. [FN258] In the majority's words:
[T]he district court recognized that plaintiffs ‘presented substantial evidence that Harvey is rude,
overbearing, obnoxious, loud, vulgar, and generally unpleasant’ but nonetheless held that
because ‘there is no evidence that any of the exchanges between Harvey and Plaintiffs were
motivated by lust’ or by ‘sexual animus toward women as women,’ his conduct was not
discriminatory. [FN259] *749 The Ninth Circuit reversed, as a matter of law, the grant of
summary judgment below, holding that “differences in subjective effects (along with, of course,
evidence of differences in objective quality and quantity) is relevant to determining whether or
not men and women were treated differently, even where the conduct is not facially sex- or
gender-specific.” [FN260] The court also suggested that the record revealed “a debatable
question as to the objective differences in treatment of male and female employees, and strongly
suggests that differences in subjective effects were very different for men and women.” [FN261]
It concluded that the facts presented a triable issue as to whether the work environment that
Harvey created was sufficiently severe to constitute illegal hostile work environment on the basis
of sex under Title VII. [FN262]
These are cases in which judges have ruled on summary judgment as a matter of law in the
context of novel claims. Yet the district courts' grant of summary judgments and the appellate
courts' review of these decisions are made on a record based on discovery, not live testimony.
Judge Wald emphasized the need for federal jurisprudence to be based on a full testimonial
record that demonstrates the complexity of these legal questions in the context of the facts.
[FN263] This was a serious problem for the women plaintiffs in these cases.
C. Determination Of Genuine Issues Of Material Fact
District court determinations of whether there are genuine issues of material fact presented in the
case, so as to preclude summary judgment, are also problematic. In Bryant v. Farmers Insurance
Exchange, [FN264] Judith Bryant sued Farmers Insurance Exchange for age and gender
discrimination under Title V when she was fired from her job as claims director within the
specialty claims unit of the western division of Farmers. The district court excluded substantial
portions of her affidavit opposing summary judgment and then granted summary judgment.
[FN265] In a careful opinion, the Tenth Circuit found that the district court had improperly
excluded the affidavit and that Bryant had presented sufficient evidence calling into question the
veracity of Farmers' nondiscriminatory reasons for firing her to establish pretext for summary
judgment purposes. [FN266]
122
*750 Similarly, in Watson v. Blue Circle, Inc. [FN267] Lisa Watson sued Blue Circle, a
company that provided ready-mix concrete in Georgia and Alabama, for hostile work
environment sexual harassment under Title VII at the Athens, Georgia facility, where she was
one of only three women employed as a concrete truck driver. The district court granted
summary judgment for the defendant. [FN268] The Eleventh Circuit reversed on the ground that
there were many genuine issues of material fact and that inferences had been drawn in favor of
Blue Circle by the district court. [FN269] These issues included whether Blue Circle had actual
notice of several alleged incidents of harassment; whether Blue Circle had an effective sexual
harassment policy that precluded a finding of constructive notice, and if not, whether Blue Circle
had constructive notice and thus reasonably should have known of several alleged incidents of
harassment; and whether Blue Circle took immediate and appropriate corrective action in
response to those incidents. [FN270] Judge Wald suggests that in many cases where there is
reversal because of determinations that there are genuine issues of material fact in dispute, there
are issues of law appended to them. [FN271] Blue Circle is such a case.
Simpson v. University of Colorado [FN272] is another good example of district court factfinding. This case involved Title IX claims against the University of Colorado by two female
students who were raped during football recruitment season where there was evidence that
football recruits had been promised “a good time.” [FN273] There was significant discovery
concerning the University of Colorado's football program and sexual assault that took place over
many years. [FN274] The University of Colorado moved for summary judgment and District
Judge Blackburn granted the motion, finding that there were no genuine issues of material fact
respecting the legal requirements of the defendants' actual notice and willful disregard under
Title IX. [FN275] In a lengthy opinion, the district judge did extensive fact-finding based on
discovery, drew inferences from the record, and concluded that there was not sufficient evidence
to reach a jury. [FN276] This is a classic example of a district court slicing and dicing, analyzing
the legal claims and breaking down the legal requirements so technically *751 that the context
and interrelated aspects of evidence that are relevant to the plaintiff's claims are lost. All of this
work was done by the district court to keep the case from the jury.
On appeal, the Tenth Circuit reversed and vacated the district court's grant of summary
judgment, with the following conclusions:
In sum, the evidence before the district court would support findings that by the time of the
assaults on Plaintiffs, (1) Coach Barnett, whose rank in the CU hierarchy was comparable to that
of a police chief in a municipal government, had general knowledge of the serious risk of sexual
harassment and assault during college-football recruiting efforts; (2) Barnett knew that such
assaults had indeed occurred during CU recruiting visits; (3) Barnett nevertheless maintained an
unsupervised player-host program to show high-school recruits “a good time”; and (4) Barnett
knew, both because of incidents reported to him and because of his own unsupportive attitude,
that there had been no change in atmosphere since 1997 (when the prior assault occurred) that
would make such misconduct less likely in 2001. A jury could infer that “the need for more or
123
different training [of player-hosts was] so obvious, and the inadequacy so likely to result in [Title
IX violations], that [Coach Barnett could] reasonably be said to have been deliberately
indifferent to the need.”
In light of the summary-judgment standard, and taking into account all favorable inferences for
Plaintiffs, we conclude that they submitted sufficient evidence for “a reasonable jury [to] return a
verdict for [them].” Summary judgment was therefore inappropriate. [FN277]
Finally, in Williams v. General Motors, a Sixth Circuit opinion reversing summary judgment in a
“hostile environment” sexual harassment case, [FN278] Judge Martha Daughtrey used the phrase
“impermissible disaggregation of incidents” to describe what the district court had done in its
opinion, and why the grant of summary judgment should be reversed. [FN279] She argued that
the district judge had isolated aspects of evidence of “hostile environment,” rather than looking
at the evidence in light of the “totality of the circumstances.” [FN280] She also reversed the
district court's determination that there was no “hostile environment” as a matter of law. [FN281]
*752 These cases bear out Judge Wald's point regarding how summary judgment decisions
distort the context of decision making and shape federal jurisprudence. [FN282] Although in
several of these cases the plaintiff's claim was recuperated on appeal, who knows how many
other cases existed involving novel claims or arguments made by plaintiffs in which district court
judges dismissed the case on summary judgment as a matter of law, and the plaintiff did not
appeal or the dismissal was not reversed? In light of what we know both about appeals of
summary judgment generally and appeals in employment discrimination cases specifically, with
their “anti-plaintiff effect,” [FN283] there is a huge impact on limiting the development of the
law at the trial level. On the other hand, what are novel and innovative claims in the context of
gender cases? Do Title VII or Title IX gender cases really continue to present novel or
innovative issues, or is it arguable that they are cut and dry after all these years of litigation?
[FN284] I think the cases presented here suggest there are new and innovative claims that are
being developed all the time.
A change in substantive law standards in gender cases will also impact on summary judgment-Charles Sullivan and Michael Zimmer have discussed the impact of Desert Palace on Title VII
and summary judgment. [FN285] Sullivan observes that although the Supreme Court may have
read Title VII to permit a plaintiff to prove that discrimination was a motivating factor for a
challenged decision without the need for direct evidence in Desert Palace, a doctrinal
reformulation that was generally viewed as beneficial to individual plaintiffs, there may be
downsides because of summary judgment. [FN286] He notes that in the new regime, “district
judges will have even more discretion in summary judgment dispositions, as the central question
will reduce to one determination of whether a reasonable jury can find discrimination. It is not so
clear that, on balance, this will be exercised in allowing discrimination cases to go to trial.”
[FN287]
124
*753 D. The Importance of Jury Determination
In Gallagher v. Delaney, [FN288] Judge Weinstein, sitting on a panel of the Second Circuit,
wrote an opinion reversing summary judgment in a sex discrimination case. In it, Judge
Weinstein emphasizes the reasons why a district judge should not decide this type of case and the
importance of having a jury decide these kinds of issues. [FN289]
Gender and employment scholars have a dark view of summary judgment in women's rights and
employment discrimination cases because of their views of federal judges, their backgrounds and
the kinds of work and life experiences they have had, and what they have observed concerning
judicial attitudes toward these cases. [FN290] Mary Becker writes about the predominance of
summary judgment in Title VII and maternal caretaking cases [FN291] and suggests that there is
little hope for the future of Title VII as a remedy because of the prevalence of summary
judgment. Michael Selmi details the problems of summary judgment in employment cases and
explains why many federal judges don't “get” these cases. [FN292] Do judges have more than
discomfort with these cases? Is it really judicial hostility? [FN293] Wendy Parker has
highlighted a deeper problem of “anti-plaintiff ideology” in employment cases generally, and in
race cases in particular, that is reflected in grants of summary judgment. [FN294]
E. Daubert
Experts are now widely used in gender cases, particularly in women's rights and employment
cases. [FN295] Gender stereotyping is an *754 issue that is at the heart of many cases, whether
“maternal wall” or sexual harassment, and there has been considerable scholarship and expert
testimony on cognitive bias in many gender discrimination contexts. Cognitive bias research
examines the subtle, often unconscious biases that affect behavior and decision making. [FN296]
Expert testimony on cognitive bias can address problems of sex discrimination in the workplace.
[FN297] Joan Williams discusses the potential use of expert testimony on cognitive bias to
defeat motions for summary judgment by shifting judicial inferences in “maternal wall” cases.
[FN298] Theresa Beiner proposes the admission of social science evidence in sexual harassment
cases to deal with the gap between the judge and the jury. [FN299] But, with Daubert, would this
testimony even be admitted? [FN300]
There are Daubert issues now in a wide range of gender discrimination cases. Has social science
evidence been admitted? Would admission of such evidence make a difference? Although more
research on these questions is necessary to determine how Daubert is impacting gender cases,
there is a practical conundrum here. The use of expert testimony might be advocated to provide a
broader context to educate judges, but judges may be ruling on Daubert to prevent admission of
this testimony, and that increases the use (and likelihood of grants) of summary judgment as
well.
125
V. Gender, Torts, And Summary Judgment Decision Making
Over the last several years, there has been considerable recognition by tort scholars of the
gendered nature of certain torts. Martha Chamallas, [FN301] Lucinda Finley, [FN302] Thomas
Koenig and *755 Michael Rustad, [FN303] Joan Steinman, [FN304] and Anita Bernstein,
[FN305] among others, have examined the ways in which gender issues play out in torts. Tort
cases in federal court are therefore an additional place to look at the interplay between gender
and summary judgment.
Koenig and Rustad have argued “that tort remedies are bifurcated into ‘his' and ‘her’ tort worlds
based upon gender roles.” [FN306] In their study of tort cases involving punitive damages,
“women were more likely than men to receive punitive damage awards for injuries from
household consumer products.” [FN307] In contrast, the punitive damages awarded to males
arose from accidents involving industrial and farm machinery, asbestos, chemicals, industrial
containers and vehicles. [FN308] Two out of three plaintiffs receiving punitive damage awards
in medical malpractice litigation were women who were seeking redress for mismanaged child
birth, cosmetic surgery, sexual abuse, and neglect in nursing home gender-based injuries.
[FN309] Other scholars have emphasized the cluster of sexual- and reproductive-based harms
that are involved in women's tort cases. [FN310] As others have argued, tort cases can also
involve civil rights issues. [FN311]
While many tort cases are litigated in state court, some tort cases are filed in federal court on the
basis of diversity jurisdiction, or federal statutory or regulatory claims. [FN312] As in all tort
cases, *756 expert witnesses are frequently required. Thus, in these federal cases, summary
judgment is shaped by the role of Daubert hearings, in which judges have to assess the
admissibility of the plaintiff's expert witnesses.
Since the majority of plaintiffs in these toxic torts cases are women, general judicial hostility to
tort cases, “tort reform,” and Daubert have had an impact on summary judgment involving
women plaintiffs. Arthur Miller has described how “tort reform” plays into summary judgment.
[FN313] There are special pressures on plaintiffs in tort cases raising questions about causation,
and special pressure to put plaintiffs to their proof early on. “Lone Pine orders” in toxic tort
litigation, which require plaintiffs to produce basic evidence supporting a prima facie case early
in the discovery process, [FN314] are frequently used in conjunction with defense motions for
summary judgment. Many of these cases involve claims concerning “female injuries,” such as
DES, breast implants, Parlodel, Dalkon Shield, and Bendectin. [FN315]
The devastating impact of Daubert means that many torts cases are not even getting past motions
in limine or summary judgment motions because of expert testimony, the most efficient way for
126
defendants to dismiss the case at an early stage. Most cases appear to be dismissed on summary
judgment on Daubert issues and are not even reaching an arguably “discovery-based” or “meritsbased” summary judgment determination. Yet the legal questions that are raised in these cases
are classic issues of mixed law and fact, cases involving issues of negligence. Arthur Miller
notes that “[n]egligence is the paradigmatic mixed question of law and fact,” and where the legal
standard is certain, “the [fact-finder] is not simply determining *757 ‘what happened'-the
historical facts-it is also determining the legal effect of its findings as to ‘what happened.”’
[FN316] One district judge agreed that the legal questions in these cases are “appropriately
answered not by a trial judge on summary judgment, but by a jury whose primary function is to
make determinations about people's conduct based on objective standards,” [FN317] and
emphasized that a decision by a district judge that no reasonable jury could make a particular
determination “discount[s] (1) the importance of a jury's evaluation of witnesses, (2) the greater
sensory impact on the trier of live testimony, and (3) the value of trial cross-examination based
on . . . a full presentation of the evidence.” [FN318]
Here, judges may not be dealing with cases that directly implicate attitudes relating to gender
roles, work, and family in the same way that employment discrimination or other gender
discrimination cases do. In tort cases, the gender issues are more subtle, more below the surface,
because these cases do not allege gender discrimination as a legal claim. With women plaintiffs
in tort cases, these general attitudes may be complicated by views of the credibility of the
plaintiff, and judicial lack of understanding of, or discomfort with, reproductive or “women's
harms.” Where there are claims concerning harm to women's bodies and reproductive capacity,
there may be special judicial minimization of these claims, which includes the possibility of
disposition on summary judgment. For these reasons, aspects of gender bias on summary
judgment may seem less obvious in federal tort cases. I now briefly discuss a few examples of
problems of judicial decision making in tort that present problems that are similar to those
discussed in the previous section.
A. Reasonableness
There are numerous examples of these issues in tort cases involving women plaintiffs. In a
Parlodel case, Johnson v. Sandoz Pharmaceuticals Corp., [FN319] the Sixth Circuit reversed a
grant of summary judgment by the district court on the ground that there were genuine issues of
material fact that existed as to when the plaintiff, in the exercise of due diligence, should have
discovered the alleged association between her suffering a stroke and her taking Parlodel, for the
purposes of the statute of limitations. [FN320] Judge Martha Daughtrey, writing for the court,
noted that:
*758 In products liability cases arising from exposure to allegedly harmful substances, Kentucky
law requires that a plaintiff be given a reasonable opportunity to discover the causal relationship
between the substance and her injury before the statute of limitations clock begins to run against
127
her. Here, Johnson's ingestion of Parlodel and her subsequent stroke did not occur
simultaneously, and the surrounding circumstances made the alleged causal relationship less than
obvious to a lay person. Accordingly, we conclude that the case must be remanded for
determination by a jury whether Johnson, at the time of her stroke, “in the exercise of reasonable
diligence should have discovered not only that [she] ha[d] been injured but also that h[er] injury
may have been caused by” her use of Parlodel. [FN321]
In Smith v. Wal-Mart Stores, Inc., [FN322] the Sixth Circuit reversed the district court's grant of
summary judgment to a disabled woman who sued Wal-Mart, for injury she suffered using a
bathroom in a store, with claims for negligence per se, common law negligence, and ADA
violations. [FN323] The Court held that summary judgment had been improperly granted on
claims of common law negligence and negligence per se based on ADA claims which seemed to
rest on the district court's assessment of the plaintiff's credibility. [FN324] And in Adams v.
Synthes Spine Co., [FN325] the Ninth Circuit affirmed the district court's grant of summary
judgment to a woman who brought a products liability suit against a spinal plate manufacturer
for a surgically implanted broken spinal plate. [FN326] The court held that the manufacturer's
warning that the plate could break and that it should be removed following surgery were
adequate warnings to the surgeons. [FN327] In dissent, Judge Ferguson argued that summary
judgment should not have been granted because there were two genuine issues of material fact:
1) whether the doctor's reasonable expectations were met, and 2) whether Synthes Spine's
warnings were adequate. [FN328]
A case in which the district court seems to minimize the harm experienced by the woman
plaintiff is Akers v. Alvey, [FN329] a more explicit gender discrimination case. In this case, the
plaintiff alleged *759 sexual harassment as well as a tort claim of outrage. [FN330] The district
court granted summary judgment on the plaintiff's claims of “discrimination, retaliation, and tortof-outrage.” [FN331] The Sixth Circuit reversed on the tort of outrage claim, holding that
material issues of fact existed that made summary judgment improper. [FN332] The plaintiff
alleged many serious allegations of sexual harassment and the district court said that while these
allegations were “crude,” they did not rise to the level of outrageousness necessary to constitute
the tort. [FN333] In reversing, the Sixth Circuit held that this was a jury question because the
standard for outrageous behavior was to be determined by “an average member of the
community.” [FN334] The court noted “Alvey's behavior went far beyond the sexual jokes,
comments, and innuendos that this court has previously found insufficient to withstand a motion
for summary judgment on a tort-of-outrage claim.” [FN335]
B. Daubert
As mentioned, Daubert has had a substantial impact on these cases. A particularly egregious
example is Rider v. Sandoz Pharmaceuticals Corp., [FN336] one of the Parlodel cases. In Rider,
plaintiffs Bridget Siharith and Bonnie Rider sued Sandoz, “alleging that their postpartum
128
hemorrhagic strokes were caused by ingestion of Parlodel,” which had been prescribed to
suppress lactation after childbirth. [FN337] After discovery, Sandoz moved, in limine, to exclude
the opinions and testimony of the plaintiffs' experts on causation and for summary judgment.
[FN338] Because the motions, documentary evidence, experts, and issues were the same in both
cases, the district court addressed the motions together. The district court held a Daubert hearing
to determine the admissibility of the evidence. In a three-day *760 hearing, the district court
examined the evidence and found that the plaintiffs' claims were based on speculation and
conjecture. [FN339] The district court excluded the evidence and granted summary judgment in
favor of the pharmaceutical company. [FN340] On appeal, the Eleventh Circuit affirmed the
opinion and held that the district court had not abused its discretion. [FN341]
As mentioned earlier, restrictive Daubert and summary judgment rulings in federal tort cases can
have a considerable impact on choice of forum. Since the purpose of the recent Class Action
Fairness Act is to allow class-action tort cases filed in state court to move to federal court,
[FN342] where Daubert and summary judgment will apply, [FN343] it will be important to see
what happens with these cases.
VI. Disproportionate Grants of Summary Judgment on the Basis of Gender
This Article was animated by anecdotal data from the Gender Bias Task Force reports, and the
work of other scholars on summary judgment in employment discrimination cases that identified
issues of gender bias in judicial treatment of summary judgment claims. [FN344] In the two
previous Parts, I examined problems of gender bias in judicial decision making in summary
judgment cases involving women plaintiffs. My analysis raises the question of whether the
problems that I have identified with judicial decision making on summary judgment in cases
involving women plaintiffs actually lead to disproportionate granting of summary judgment
against women plaintiffs compared to male plaintiffs in federal courts.
In order to explore the question of disproportionate granting of summary judgment, I worked
with the Federal Judicial Center (FJC), which studies the operation of the federal courts and
compiles data based on court records. As part of its ongoing study of summary judgment
practice, the FJC has developed a dataset that includes information drawn from records of federal
courts on cases terminated for six time periods from 1975 through 2000. [FN345] The FJC
generously *761 provided me access to data from the most recent random sample of
approximately 630 cases terminated in 2000 in each of eight federal district courts--Maryland,
Eastern Pennsylvania, Southern New York, Eastern Louisiana, Central California, Northern
Illinois, Massachusetts, and Southern Florida--and a supplemental nonrandom sample of civil
rights cases and product liability cases from each of the courts, for a small study concerning
differential grants of summary judgment on the basis of gender. [FN346] For each case, FJC
129
researchers recorded the identification of the moving party, [FN347] the type of summary
judgment motion made, [FN348] the court's ruling on the action, [FN349] and whether the action
terminated the case. They also recorded the nature of the case (tort, contract, civil rights, other),
[FN350] as well as the court and time period. Piggybacking on this data previously coded by the
FJC, my research assistants coded the gender of the parties, [FN351] the parties' attorneys,
[FN352] the judge presiding *762 over the case, [FN353] and, when applicable, the magistrate
judge, [FN354] along with the cause of action and the statute cited, if applicable. [FN355]
The crux of this study was to examine and compare only summary judgment motions made
against female and male plaintiffs, and the outcomes of these motions. Of the 1198 summary
judgment-type motions [FN356] made against individual plaintiffs (as opposed to corporate or
government plaintiffs), 395 were made against female plaintiffs and 518 were made against male
plaintiffs; the rest were made against either multiple plaintiffs or plaintiffs coded as “unknown.”
[FN357] FJC researchers then performed several statistical analyses on this newly coded data.
[FN358] They determined that, overall, the gender of the plaintiff had no statistically significant
effect on the outcome of defendants' summary judgment-type motions. [FN359]
*763 While the results were not what was expected, they did show that gender may play at least
some role in the outcome of summary judgment motions. The study, using a broad approach, did
not detect *764 a differential effect in the granting of summary judgment motions against women
plaintiffs. My analytical interest appeared to outstrip the empirical data. Of course, the study was
not initially designed to assess the effects of gender in specific types of cases, and for that reason
did not permit a strong assessment of some of the proposed effects. [FN360]
The results of this study did not support the hypothesis that problems with summary judgment
decision making resulted in summary judgment being granted disproportionately against women
plaintiffs as compared with male plaintiffs, at least during this time period. The study also did
not reveal significant disparities in summary judgment dispositions based on gender of the
plaintiff. [FN361] However, there are many factors at play in judicial decision making, and it
was difficult to isolate the subtle issues of gender bias that may be involved, and identify
whether and how gender may play a role.
One reason why it is hard to test the hypothesis that there may be differences in the granting of
summary judgment between men and women plaintiffs in a random sample is that women
plaintiffs fall into certain categories of cases. Men and women do not appear to be equally
involved as plaintiffs in the same kind of civil cases in federal court, so it is difficult to have a
control group and know what results from case-type bias or gender bias. [FN362] Women
plaintiffs are involved in many employment discrimination cases, and many medical malpractice
and products liability cases, although not other kinds of torts, such as accidents. Some of the data
that has been gathered concerning specific areas of discrimination litigation bear this out. In a
recent empirical study of litigation under the Family Medical Leave Act--where eighty-six
percent of the plaintiffs were *765 women--sixty-eight percent of all cases resulted in summary
130
judgment being granted to dismiss the claims, and seventy-six percent of all district court
decisions were upheld by the court of appeals. [FN363] These claims are highly controversial.
As I have discussed, there is wide recognition of the fact that judges are hostile to employment
discrimination claims, and hostility to medical malpractice and products liability claims is part of
the general wave of tort reform. Two different aspects of the purported “litigation explosion” are
represented. [FN364] Gender dimensions of these decisions may very well relate to the types of
cases that are involved. How much is gender specifically, and how much is judicial dislike of the
substantive claims that women plaintiffs are likely to bring to court, such as employment
discrimination? This is hard to know, and needs further research.
Is there a perception error in the Gender Bias Task Force reports, the case analyses, the sense
that something is amiss with gender and summary judgment? I do not believe that the fact that
this study does not show a disproportionate impact on the granting of summary judgment based
on gender during this particular time period minimizes the significance of the prior case studies
showing problems in judicial decision making. The empirical data cannot get at the subtlety of
the bias. Although many of the problems with judicial decision making that I have identified lead
to full grants of summary judgment by district judges, not all do. Some problems with judicial
decision making lead to partial grants of summary judgments, or erroneous interpretations of the
law, and some grants of summary judgment by district judges are reversed on appeal. It is
judicial decision making that is the larger problem, and although these problems in judicial
decision making often lead to dismissal, they do not always. This study did not and could not test
for these more subtle issues.
Just as I argue that in many cases judges need a fuller record for decision making, before cutting
off inquiry and granting summary judgment, we need a fuller record on which to analyze the
interrelationship between gender and summary judgment. This *766 Article suggests that there
are many different ways of trying to understand, or “know,” this problem methodologically, just
as we have seen that there is the need for a broader range of information and “knowledge” for
judges in deciding summary judgment. [FN365] More quantitative data and qualitative analysis
of judicial decision making on both gender and summary judgment are necessary in order to fill
out the picture of the role of gender in summary judgment. This Article is only a first step in this
effort.
VII. Judge And Jury Decision Making
The critical issue presented on summary judgment is the issue of judge versus jury
determination. We differentiate the judge's decision-making role on summary judgment from the
decision making that would be going on in jury trial. We focus on the importance of the jury for
many reasons: the Seventh Amendment, the importance of the right to jury trial, the central role
131
of juries as a democratic institution, the way in which juries bring a broader range of social and
community norms to bear on subjects of importance, as well as their enhanced ability to do
thoughtful fact-finding. [FN366] Summary judgment implicates all of these dimensions. [FN367]
Although there are many ways of interpreting judicial grants of summary judgment, they can be
viewed as “the jury snub” . [FN368]
In theory, on summary judgment, district courts are deciding “legal” issues, [FN369] which are
especially appropriate where a court can provide consistency, or infuse relevant policies, to a
question. In contrast, they should be loath to decide issues where the jury can play a role in
defining community values. [FN370] This means that the district judge has to decide what a
reasonable jury could decide. But what if the judge does not realize the differences between
those views--his or her perspective and those of a “reasonable juror”? What *767 if a judge does
not have the humility, self-awareness, or insight to recognize the limitations of his or her own
perspective? [FN371]
Judge Weinstein highlights this issue in Gallagher v. Delaney. [FN372] With respect to
interpretation of sexual harassment, he emphasizes the importance of the “jury made up of a
cross-section of our heterogeneous communities” assessing the facts of the case versus “a federal
judge [who] usually lives in a narrow segment of the enormously broad American
socioeconomic spectrum, generally lacking the current real-life experience required to interpret
subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and implicit
communications.” [FN373] Numerous other courts have followed his lead and relied on Delaney
for this proposition. [FN374]
In addition, there is obviously room for widespread disagreement among judges on the question
of “reasonableness.” Judges on circuit panels in summary judgment cases frequently disagree
with each other about what a “reasonable juror” could conclude, and circuit court judges reverse
district court judges on this very issue. [FN375] Indeed, this is the very issue that was presented
in the Supreme Court's decision last Term in Scott v. Harris, [FN376] where Justice Stevens
criticized the majority for sitting as “jurors” because of their own viewing of a videotape, and
reversal of the four district and circuit judges who had denied summary judgment below.
[FN377] He argued that the conflict between the various judges who had heard the case
necessarily showed that a “reasonable juror” could find for the plaintiff. Of course, judicial
attitudes change on who a “reasonable juror” is and what a “reasonable juror” might think,
depending on the type of case and the factual context. [FN378]
Is it so clear that a judge and jury would come to a different conclusion in a particular case?
Some scholars say no. [FN379] However, in *768 cases involving explicit issues of gender, or
even more subtle issues of gender as in tort cases, it may make more of a difference who the
decision makers are. [FN380] Although there is some increase in diversity of the federal
judiciary, [FN381] there appears to be greater diversity on federal juries. [FN382]
132
Many studies have been conducted over the years in order to determine whether the gender of a
judge plays a role in decision-making behavior, [FN383] and results have been inconsistent.
Though some studies have found gender to play a role in judicial decision making, [FN384]
other studies have found no perceptible effect. [FN385] A new study of federal appellate
decision making in sex discrimination cases led by Lee Epstein, which seeks to “untangl[e] the
causal effects of sex on judging,” uses new statistical methodology. This study finds that male
judges are much less likely to decide in favor of the party alleging discrimination than female
judges, and that the probability of a judge deciding in favor of the party alleging discrimination
decreases by about ten percentage points when the *769 judge is male. It also finds that when a
woman serves on an appellate panel with male judges, the male judges are significantly more
likely to rule in favor of the sex discrimination litigant. [FN386] Another recent study of threejudge panels in federal appellate courts also found that the presence of a female judge on the
panel increased the probability that plaintiffs in sexual harassment and discrimination cases
would succeed. [FN387] Others suggest that other factors, including political affiliation, are
more accurate predictors of how a judge will decide a case. [FN388] Some argue that these
results are inconclusive because of the small number of women in the federal judiciary, and that
the significance of gender in judging may show itself more clearly over time. [FN389] Though
all of these studies do not consistently show that a particular judge's gender affects decision
making, they do reinforce the importance of diversity for decision makers in these types of cases.
Although they complicate an “essentialist” view of judging by gender on summary judgment
cases (and the FJC data just discussed seems to raise questions about that), [FN390] these studies
do underscore the significance of having a diverse group of decision makers.
There are many issues about gender and judging to consider in this context. Would the challenge
of showing a legal or factual dispute have a gendered quality if what a woman plaintiff wants to
*770 dispute “requires imagination, appreciation of nuance, or developing evidence of harm or
injury that itself requires a change in understanding, such as the movement to intentional
infliction of emotional distress”? [FN391] Will the gender composition of the federal courts
“favor defendant motions for summary judgment as male judges identify with defendants and
appreciate the efficiency the motion offers while trials are more untidy and sprawling”? [FN392]
We have to look to factors other than gender, such as political party affiliation, that also seem to
make a difference. [FN393] Judge Weinstein, in Gallagher, assumes that there is a difference
between what judges would see and how juries would bring different perspectives to bear.
[FN394] Judge Rovner, in DeClue, suggests that gender and experience count in recognition of
the seriousness of the “bathroom problem”--and underscores how the judge's “knowledge” and
type of “knowledge” is important in evaluating gender claims. [FN395]
What about judge versus jury decision making generally--Judge Scheindlin's response to
Gallagher that judges should be setting the boundaries of the law? [FN396] Are these “explicit”
gender cases, or even “implicit” gender in tort cases--cases that juries, not judges, should be
deciding? How does gender figure in there? What about other issues? Who gets to decide which
133
issues are more appropriate for judge or jury? Should it be dependent on current “social issues”?
[FN397] There is not necessarily a bright line between current “social issues,” as in the gender
cases, and other issues that may seem more mundane, as in the torts cases.
What about bench trials? A judge who is deciding summary judgment is effectively having a
bench trial, but the trial is based on affidavits and depositions, not full live presentation. On
bench trials *771 there is the requirement for findings of fact and conclusions of law, [FN398]
and, although most grants of summary judgment are decided by a full opinion, a bench trial has
more robust procedural requirements. Usually there is no oral argument on summary judgment,
so there is no opportunity to really argue about possible inferences or interpretation of
depositions and discovery except in written memoranda. There is certainly no opportunity to
observe witnesses or have them subjected to cross-examination. When a judge would be the trier
of fact at trial, such as in FTCA cases where there is no right to a jury trial, or where the parties
have chosen a bench trial, summary judgment is more complex. In Sullivan v. United States
Department of Navy, [FN399] the Ninth Circuit reversed a district court's grant of summary
judgment in a case where a woman plaintiff, who had undergone breast reconstructive surgery at
a navy hospital after a mastectomy, sued the government on the grounds of medical malpractice
under the FTCA. The court held that genuine issues of material fact existed and precluded
summary judgment, and that exclusion of the plaintiff expert surgeon's opinion was improper.
[FN400] The court remanded the case for reassignment to a different district judge because the
previous judge had demonstrated his commitment to the government's view of the facts. [FN401]
Clermont and Schwab say that employment discrimination plaintiffs do much worse in bench
trials than in jury trials. [FN402]
VIII. Preference for Trial, Live Testimony, and Public Resolution
Part of our theoretical preference for trial is not just for the jury, but a preference for live
testimony and public process so that the plaintiff can have her “day in court.” [FN403] With the
present operation of summary judgment, we are moving to a system of paper trials. [FN404]
Live testimony and adversarial presentation make a difference in decision making;
determinations of law should be shaped by the complexity of facts developed in a live forum.
[FN405] The traditional reluctance for summary judgment rests on the notion that unforeseeable
disclosures at trial or juror/judge perceptions of *772 witnesses may produce a stronger case.
[FN406] Legal claims look different in “life”; the seriousness of harms that are claimed may be
more substantial when plaintiffs and other witnesses testify, and testimony that seemed
reasonable in a deposition transcript may seem less credible in court. After hearing live
testimony, a judge may not see defendant's conduct as shaped by “stray remarks,” but much
134
more. As others have argued, the law should not be developed on “arid” records, but with the
benefit of live testimony. [FN407]
Insights concerning the importance of listening to women's experiences of harm give additional
weight to this general need for live testimony. [FN408] Judges may not see the relevance or
interconnectedness of certain evidence in reviewing discovery for purposes of summary
judgment, but might better understand the context and relevance after hearing live testimony.
Perhaps this is true in all cases, and the idea that hearing live stories can make a difference has
implications not just for cases involving women plaintiffs, but for summary judgment in general.
[FN409] As fewer cases are heard in open court, and pressure to grant summary judgment
increases (which may also have an impact on fewer cases being brought or making those that are
brought more likely to settle even before summary judgment), judges may be losing perspective
on the seriousness of plaintiffs' claims, [FN410] and are more likely to evaluate them based on a
cold record. The increase in private settlements also makes discrimination invisible, [FN411] for
there may be less law made in courts that is “available” to judges to decide these types of cases.
This assumes, optimistically, that some judges grant summary judgment in gender cases because
they don't understand the legal claims or see the relevance of or interrelatedness of certain
evidence. Gender stereotypes may also be shaping and limiting their analyses of the seriousness
of legal claims, their evaluation of evidence that has been proffered, and the harms that the
plaintiff has suffered.
Another important impact of summary judgment is the absence of public resolution. In judges
deciding cases on summary judgment, we have the loss of a “public dimension” to litigation.
Through public *773 airing, claims are heard, understood, and legitimized. They take on a life of
their own and, through public and media attention, individuals who might have suffered harm,
and judges who may be ruling on claims, may recognize claims as harms. Law is developed
through the airing of those claims, which may validate them. Press coverage of sexual
harassment, for example, links individual experiences and makes them common--think of Anita
Hill and the impact of that case on sexual harassment. We now see patterns of newly reported
cases on a host of women's rights issues where only individual claims were previously made.
While the civil litigation system is often viewed as only involving parties, there is an important
“public dimension” to litigation. [FN412] The “public dimension” helps set norms and shapes
laws, makes public education possible, and legitimizes litigants' claims. Summary judgment
threatens to eliminate these vital aspects of our dispute resolution process since these claims are
taken out of the public arena--they are decided in chambers instead of in the courtroom. By
eliminating the opportunity for live trial and substituting a trial by motion, the public role is
diminished.
Concern for the “public dimension” of federal civil litigation requires claims to be brought out in
the open. For example, recent cases exposed widespread issues of sex discrimination and sexual
harassment in the securities industry, which had occurred in silence for many years and had been
135
taken for granted as the cost for women of participating in a “man's world.” [FN413] However,
as sexual harassment claims were filed in court, these issues were brought to light. As a result of
litigation, there was widespread publicity, companies were forced to develop diversity and
sensitivity training programs, and there were substantial settlements of these claims. [FN414]
Another key element of live trials is the opportunity for exposure, validation, and legitimization
of the harms for both the parties and the public. [FN415] Many cases discussed in this Article
*774 describe horrendous aspects and experiences of gender discrimination, particularly in
employment and education. In many of these cases, through summary judgment, judges are
effectively censoring these stories and keeping the details of these cases invisible from public
scrutiny. [FN416] In these cases, a public forum is particularly crucial. Not only should juries be
playing a role in determining appropriate workplace behavior, but a larger public should be able
to evaluate what is and is not discrimination. It may be difficult for a court, or the public, to
determine what sex discrimination means in detail, or what a work environment is actually like
“without hearing the witnesses describe it live.” [FN417] Furthermore, the litigant, in telling her
experience live, may experience validation of her claims.
In addition to the benefits conferred upon a litigant through expressing her story, there is a
collective benefit to the public as a whole. The stories of litigants “may become the shared tales
of a variety of citizens--across social and ethnic boundaries.” [FN418] If there is no exposure to
stories and claims made within litigation, public education cannot occur. Public access helps
strengthen public and community rejection of certain practices. The public can then serve as a
“check” on the judiciary, encouraging judges to apply these norms properly. [FN419]
The privatization dimension of summary judgment is part of a larger problem of privatization in
federal procedural law. We can see this in the “increased use of alternative dispute resolution
methods,” [FN420] including arbitration, [FN421] secret settlements, [FN422] and *775
decisions to keep court opinions from being published. [FN423] A preference for public
resolution does not mean that there should be no summary judgment. However, if it is a close
case and important social issues or issues of public importance are involved, summary judgment
should be denied.
IX. Implications For Reform Of Summary Judgment
Although there is more quantitative and qualitative research to do on the interrelationship of
gender and summary judgment presented in this Article, what does the material presented here
tell us? What do the gender cases suggest about summary judgment generally? How do they help
us assess the operation of summary judgment more broadly and consider proposed reforms?
136
First, they suggest that summary judgment can be “dangerous,” and is likely to be more
“dangerous” in particular contexts. Recent data on the high rate of grants of summary judgments
in employment and discrimination cases support this view. [FN424] But the implications go
beyond gender cases. The challenge is how to keep district court decision making on summary
judgment within proper *776 boundaries. [FN425] The legal standards for summary judgment in
Rule 56 are not sufficiently determinate, so judicial decision making is bound to get out of
control. [FN426] Now, there is nothing that constrains or limits district court judges' decision
making on summary judgment. [FN427] How can judges be disciplined if they are not
constrained by the Seventh Amendment or by reversal? In summary judgment, we are still
playing out the classic tensions between efficiency versus fairness. [FN428] But efficiency goals
are clearly not met by the new practice of summary judgment-- more time may be spent on the
processes of summary judgment than might be spent on trial.
What would make a difference? The gender cases suggest the importance of more research on
the interrelationship of summary judgment and Daubert. In the gender cases, we see the need for
judges to look more broadly and less mechanistically at the evidence presented in light of the
law, and to base their decisions on a fuller record. More social science and expert testimony
could illuminate the interrelationship of fact and law in gender cases, yet the admission of such
evidence is limited by Daubert. These cases also highlight the limits of decision making by an
individual judge. What about having more than one judge deciding any summary judgment
motion, or even a three-judge court? [FN429] This would undercut the purported efficiency
rationale for summary judgment, but it would increase the possibility of more nuanced and
inclusive decision making. What about having a summary jury trial that would advise the judge
on the decision on summary judgment? [FN430] That would also undercut efficiency, but
expand the possibilities for broader input for decision making. Why not restrict summary
judgment, and just have expanded judgment as a matter of law after the judge has heard the case?
Even if summary judgment is here to stay, the picture of gender and federal civil litigation
presented in this Article suggests the need for some “out of the box” rethinking of summary
judgment.
At a minimum, this Article suggests that district judges should pause and reconsider before
granting summary judgment. Judges *777 should exercise their discretion to deny summary
judgment, even when it might be “technically appropriate” [FN431] or a “close case.” [FN432]
They should think carefully about the law and the evidence that is presented, look at the evidence
holistically, resist the impulse to slice and dice the facts and the law, and consider the “public
dimension” of federal civil litigation. Most significantly, they should try to get outside the limits
of their own experiences in deciding whether no “reasonable juror” could support a
determination in the plaintiff's favor. They should exercise all discretion in favor of trial. This
historic presumption in summary judgment has been lost, and must be vigorously reasserted in
the federal courts.
137
[FNa1]. Rose L. Hoffer Professor of Law, Brooklyn Law School. Thanks to Margaret Berger,
Vivian Berger, Anita Bernstein, Ed Brunet, Stephen Burbank, Stacy Caplow, Joe S. Cecil,
Martha Chamallas, Ed Cheng, John Darley, Rebecca Eyre, Tom Grunfeld, Susan N. Herman,
Nan Hunter, Deseriee Kennedy, Sally Kenney, Minna Kotkin, Bert Kritzer, Sylvia Law, Ann
McGinley, Martha Minow, Lynn Hecht Schafran, Tony Sebok, Linda Silberman, Larry Solan,
Jeff Stempel, Aaron Twerski, Deborah Widiss, and Stephanie Wildman for helping me to think
through these issues. Grace Albinson, Jaclyn Braunstein, Chelsea Chaffee, Kristin Delaney,
Lauren Edgerton, Melissa Gable, Janell Hafner, Emily Roberts, Tim Sini, Rhiana Swartz, Kara
Troxler, Ashley Van Valkenburgh, and Adam Wexler provided able research assistance. Earlier
versions of this article were presented at a panel on “The New Fact-Finder: Jury to Judge” at the
2006 Third Circuit Judicial Conference; panels at annual conferences of the National Association
of Women Judges; the 2006 AALS Annual Meeting Program “Gender, Race and
Decisionmaking: New Perspectives on Summary Judgment and Damages” jointly sponsored by
the sections on Women in Legal Education and Minority Groups; a roundtable on “New
Perspectives on Summary Judgment” at the 2005 Law and Society Annual Meeting; the AALS
Civil Procedure Workshop; and faculty workshops at Arizona State, Syracuse, Nevada-Las
Vegas, William Mitchell, and Brooklyn Law Schools. I am grateful to participants at these
programs for thoughtful comments. The Brooklyn Law School faculty research program
generously supported my work.
[FN1]. According to the National Center for States Courts website, thirty-nine states, the District
of Columbia, and nine federal circuits currently have a Gender Bias Task Force. See
http://www.ncsconline.org/wc/CourTopics/FAQ.asp? topic=GenFai#FAQ476 (last visited Aug.
8, 2006). For two representative reports, see, e.g., Final Report & Recommendations of the
Eighth Circuit Gender Fairness Task Force, 31 Creighton L. Rev. 9 (1997) [hereinafter Eighth
Circuit Report]; The Effects of Gender in the Federal Courts: The Final Report of the Ninth
Circuit Gender Bias Task Force: The Quality of Justice, 67 S. Cal. L. Rev. 745 (1994)
[hereinafter Ninth Circuit Report].
[FN2]. For gender and procedure scholarship generally, see Symposium, Feminist Jurisprudence
and Procedure, 61 U. Cin. L. Rev. 1139 (1993) (discussing critical ways in which gender
influences procedure, including jurisdiction, jury selection, and gender bias in the courtroom).
[FN3]. See generally Patricia M. Wald, Summary Judgment at Sixty, 76 Tex. L. Rev. 1897
(1998).
[FN4]. Fed. R. Civ. P. 56(c).
[FN5]. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
138
[FN6]. Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).
[FN7]. Celotex Corp. v. Catrett, 477 U.S. 317 (1986).
[FN8]. Some scholars argue that the trilogy merely reflected changes that were already taking
place with respect to summary judgment practice and did not cause those changes. See Stephen
B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: Drifting Toward
Bethlehem or Gomorrah?, 1 J. Empirical Legal Stud. 591 (2004). A new empirical study of
federal court summary judgment practice over the last twenty-five years “call[s] into question the
interpretation that the trilogy led to expansive increases in summary judgment.” Joe S. Cecil,
Rebecca N. Eyre, Dean Miletich & David Rindskopf, A Quarter-Century of Summary Judgment
Practice in Six Federal District Courts, 4 J. Emprical Legal Stud. 861, 862 (2007). But there is no
dispute that the trilogy has encouraged district judges to view summary judgment as an
appropriate and important vehicle to dispose of cases. For a full discussion of the history of
summary judgment, see Burbank, supra, and Wald, supra note 3.
[FN9]. See Wald, supra note 3, at 1942.
My review of the D.C. Circuit's summary judgment rulings over a six-month period suggests that
judges will stretch to make summary judgment apply even in borderline cases which, a decade
ago, might have been thought indisputably trial-worthy. It also suggests that appellate courts
will, by and large, uphold these dispositions, unless they think the trial judge got the law wrong.
Id. See also Arthur R. Miller, The Pretrial Rush To Judgment: Are the “Litigation Explosion,”
“Liability Crisis” and Efficiency Cliches Eroding Our Day in Court and Jury Trial
Commitments?, 78 N.Y.U. L. Rev. 982 (2003) (arguing that courts value efficiency over
litigants' rights to jury trials). Despite a widespread view that summary judgment motions have
increased across the board and that they are more routinely granted, Joe Cecil and his colleagues
suggest that “[a]lthough summary judgment motions have increased over this twenty-five year
period, this increase reflects, at least in part, increased filings of civil rights cases, which have
always experienced a high rate of summary judgment motions.” Cecil et al., supra note 8, at 862.
[FN10]. Although state courts have their own rules, there are signs of similar changes on the
state level. See, e.g., Robert W. Clore, Texas Rule of Civil Procedure 166a(i): A New Weapon
for Texas Defendants, 29 St. Mary's L.J. 813, 821 (1998) (analyzing changes to the summary
judgment rule in Texas and comparing it to the federal rule); see also Kevin Livingston,
California May Shift Burden to Defense, Nat'l L.J., June 18, 2001 (describing proposed
California summary judgment bill that would require the defense to prove that a case is without
merit).
[FN11]. Milton I. Shadur, From the Bench: Trial or Tribulations (Rule 56 Style)?, Litig., Winter
139
2003, at 5 (describing “the growth of the summary judgment industry as a replacement for the
civil trial”).
[FN12]. See Miller, supra note 9; Wald, supra note 3; see also John Bronsteen, Against Summary
Judgment, 75 Geo. Wash. L. Rev. 522 (2007); Edward Brunet, Markman Hearings, Summary
Judgment, and Judicial Discretion, 9 Lewis & Clark L. Rev. 93 (2005); Burbank, supra note 8;
Jack H. Friedenthal & Joshua E. Gardner, Judicial Discretion to Deny Summary Judgment in the
Era of Managerial Judging, 31 Hofstra L. Rev. 91 (2002); Jack Achiezer Guggenheim, In
Summary It Makes Sense: A Proposal to Substantially Expand the Role of Summary Judgment
in Nonjury Cases, 43 San Diego L. Rev. 319 (2006); Martin H. Redish, Summary Judgment and
the Vanishing Trial: Implications of the Litigation Matrix, 57 Stan. L. Rev. 1329 (2005); Adam
N. Steinman, The Irrepressible Myth of Celotex: Reconsidering Summary Judgment Burdens
Twenty Years After the Trilogy, 63 Wash. & Lee L. Rev. 81 (2006); Suja A. Thomas, Why
Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007).
[FN13]. In December 2003, the ABA Section of Litigation convened a meeting of federal and
state judges, law professors, and lawyers to discuss “the vanishing trial” in both civil and
criminal cases. See Adam Liptak, U.S. Suits Multiply, But Fewer Ever Get To Trial, Study Says,
N.Y. Times, Dec. 14, 2003, at A1. See also Symposium, The Vanishing Trial, 1 J. Empirical
Legal Stud. 459 (2004); Vanishing Trial Symposium, 2006 J. Disp. Resol. 1; Margo Schlanger,
What We Know and What We Should Know about American Trial Trends, 2006 J. Disp. Resol.
35. Ironically, this project led to the development of the new ABA Principles Relating to Juries
and Jury Trials. See also Terry Carter, The Verdict on Juries, A.B.A. J., April 2005, at 40
(describing the recommendations). Legal commentators have recently taken note of these
developments. See Adam Liptak, Cases Keep Flowing In, But The Jury Pool Is Idle, N.Y. Times,
Apr. 30, 2007, at A14.
[FN14]. Wald, supra note 3, at 1917.
[FN15]. Id.
[FN16]. See generally Miller, supra note 9.
[FN17]. See, e.g., Burbank, supra note 8; Friedenthal & Gardner, supra note 12; Redish supra
note 12.
[FN18]. See Miller, supra note 9; Thomas, supra note 12; Bronsteen, supra note 12.
[FN19]. District Judge Shira Scheindlin has approached summary judgment more
sympathetically and questioned the assumption that juries, not judges, should be evaluating
140
sexual harassment cases. Shira A. Scheindlin & John Elofson, Judges, Juries, and Sexual
Harassment, 17 Yale L. & Pol'y Rev. 813, 852 (1999) (“For all their virtues, juries cannot
contribute much to the effort to define sexual harassment better-by granting summary judgment
in proper cases and carefully reviewing jury findings, however, judges can.”). See also Randy J.
Kozel & David Rosenberg, Solving the Nuisance-Value Settlement Problem: Mandatory
Summary Judgment, 90 Va. L. Rev. 1849 (2004) (proposing a new mandatory summary
judgment procedure at the beginning of a lawsuit to dispose of “nuisance-value” claims).
[FN20]. In Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007) and Scott v. Harris, 127 S. Ct. 1769
(2007), the Supreme Court affirmed the importance of summary judgment. In Bell Atlantic, the
Court suggested that there should be a heightened standard of pleading for Rule 12(b)(6) motions
that would result in dismissal of cases even earlier than summary judgment. See discussion of
Bell Atlantic infra note 48. In Scott, the Supreme Court reversed the lower court's denial of
summary judgment in a 42 U.S.C. § 1983 action involving a claim for damages against the
police for a car chase because of a video that the court watched, and found that there was no need
for a jury determination. See discussion of Scott infra pp. 720-21.
[FN21]. Current Advisory Committee consideration of summary judgment is focusing on
procedures by which a motion for summary judgment is made. “The Committee has been
reluctant to reconsider the standard for deciding whether there is a genuine issue of material fact.
But there is continuing interest in revising the procedures for considering a Rule 56 motion....”
Minutes of the Civil Rules Advisory Committee Meeting, May 2006,
www.uscourts.gov/rules/Minutes/CV05-2006-min.pdf (last visited Feb. 25, 2007). “The
[Advisory Committee on Civil Rules] is studying possible changes to Rule 56. Principally the
committee is considering amendments that would standardize the processes of moving for and
responding to summary judgment, such that summary judgment practice would be largely
uniform across the federal districts.” Posting of Steven Gensler, Professor of Law, University of
Oklahoma Law School and member of the Advisory Committee on Civil Rules, to CIV-PRO
@listserv.nd.edu (Sept. 12, 2006) (on file with author).
[FN22]. See Joe Cecil & George Cort, Federal Judicial Center, Estimates of Summary Judgment
Activity in Fiscal Year 2006 (2007) [hereinafter Cecil & Cort, Estimates of Summary Judgment
Activity] (submitted to the Advisory Committee on Civil Rules on April 12, 2007). For civil
rights cases, the national average of summary judgment grants was seventy percent and for
employment discrimination cases it was seventy-three percent. See id. There were some judicial
districts in which the grants of summary judgment in employment discrimination cases were as
high as ninety-three percent. See id.
[FN23]. See Wald, supra note 3, at 1938-39.
141
[FN24]. The Ninth Circuit Report suggests that there is subtle gender bias at work in
employment discrimination cases, working against female plaintiffs, witnesses, and lawyers. In
addition to this gender bias, the Ninth Circuit Report suggests that there is a perception that
judges dislike employment discrimination cases and are more dismissive of these cases, finding
for the defendant far more frequently. Over a five year period, the Ninth Circuit reviewed
twenty-six employment discrimination cases. Of these, the defendants had prevailed in twentythree of them. Notably, more than half of these were reversed, either in full or in part, by the
court of appeals. Theresa M. Beiner, The Misuse of Summary Judgment in Hostile Environment
Cases, 34 Wake Forest L. Rev. 71, 126 (1999).
[FN25]. Eighth Circuit Report, supra note 1, at 73. Beiner also notes that the Second Circuit Task
Force on Gender reported judicial impatience or stereotyped thinking in hostile work
environment cases. Beiner, supra note 24, at 129 (citing Preliminary Draft Report of the Second
Circuit Task Force on Gender, Racial, and Ethnic Fairness in the Courts 41-42 (1997)).
[FN26]. Eighth Circuit Report, supra note 1, at 74.
[FN27]. Ninth Circuit Report, supra note 1, at 885-89.
[FN28]. Id. at 886.
[FN29]. See Beiner, supra note 24; Ann C. McGinley, Credulous Courts and the Tortured
Trilogy: The Improper Use of Summary Judgment in Title VII and ADEA Cases, 34 B.C. L.
Rev. 203 (1993); M. Isabel Medina, A Matter of Fact: Hostile Environments and Summary
Judgments, 8 S. Cal. Rev. L. & Women's Stud. 311 (1999); Eric Schnapper, Some of Them Still
Don't Get It: Hostile Work Environment Litigation in the Lower Courts, 1999 U. Chi. Legal F.
277.
[FN30]. See Wendy Parker, Lessons in Losing: Race Discrimination in Employment, 81 Notre
Dame L. Rev. 889 (2006); Michael Selmi, Why Are Employment Discrimination Cases So Hard
to Win?, 61 La. L. Rev. 555 (2001).
[FN31]. Gallagher v. Delaney, 139 F.3d 338, 343 (2d Cir. 1998). Judge Weinstein was sitting on
a Second Circuit panel by designation.
[FN32]. See opinions discussed infra Parts III and IV, particularly recent decisions written by
Judge Lay of the Eighth Circuit Court of Appeals. Numerous federal courts, in a range of
employment discrimination cases, have picked up on Judge Weinstein's language and ideas
concerning the dangers of overbroad use of summary judgment in Gallagher v. Delaney, and the
preferred use of juries, as opposed to judges, in decision making. See, e.g.,
142
Payroll Sys., Inc., 445 F.3d 597, 605 (2d Cir. 2006); Thompson v. Conn. State Univ., 466 F.
Supp. 2d 444, 451 (D. Conn. 2006); Murphy v. M.C. Lint, Inc., 440 F. Supp. 2d 990, 1015 (S.D.
Iowa 2006); Schmidt v. State Univ. of N.Y. at Stonybrook, No. 02CV6083, 2006 WL 1307925,
at *7-9 (E.D.N.Y. May 9, 2006); United States v. Shonubi, 895 F. Supp. 460, 482-88 (E.D.N.Y.
1995), vacated, 103 F.3d 1085 (2d Cir. 1997); see also Distasio v. Perkin Elmer Corp., 157 F.3d
55, 61 (2d Cir. 1998); Cunningham v. Town of Ellicott, No. 04CV301, 2006 WL 2921037, at *4
(W.D.N.Y. Oct. 11, 2006); Kendricks v. Erie County Med. Ctr., No. 02CV853, 2005 WL
3059086, at *2 (W.D.N.Y. Nov. 15, 2005); Scarbrough v. Gray Line Tours, No. 02CV203, 2005
WL 372194, at *1 (W.D.N.Y. Feb. 16, 2005); Cook v. Hatch Assocs., No. 02CV65A, 2004 WL
1396359, at *2 (W.D.N.Y. Mar. 19, 2004); Fagen v. Iowa, 301 F. Supp. 2d 997, 1010 (S.D. Iowa
2004).
[FN33]. See generally Ninth Circuit Report, supra note 1; Report of the Second Circuit Task
Force on Gender, Racial, and Ethnic Fairness in the Courts, 1997 Ann. Surv. Am. L. 9 (1997);
Lynn Hecht Schafran, Credibility in the Courts: Why Is There a Gender Gap?, Judges' J., Winter
1995, at 5.
[FN34]. Fed. R. Civ. P. 56.
[FN35]. Is there a difference between summary judgment and bench trials? The fact-finder is the
same, but the nature of the proof, evidence, and procedural posture are different. See
Guggenheim, supra note 12, at 324. See discussion of bench trials infra Part VII.
[FN36]. In Gallagher, Judge Weinstein observed that “[a] federal judge is not in the best position
to define the current sexual tenor of American cultures in their many manifestations,” and that “a
jury made up of a cross-section of our heterogeneous communities” is the best arbiter of such
issues. 139 F.3d at 342. Judge Weinstein further observed that “[w]hatever the early life of a
federal judge, she or he usually lives in a narrow segment of the enormously broad American
socio-economic spectrum, generally lacking the current real-life experience required in
interpreting subtle sexual dynamics of the workplace based on nuances, subtle perceptions, and
implicit communications.” Id. See also discussion of diversity of the judiciary infra Part VII.
Current statistics on the diversity of the federal judiciary support this view. Across all federal
courts, there are 1288 sitting judges. Federal Judicial Center,
http://www.fjc.gov/history/home.nsf (follow “Judges of the United States Courts” hyperlink;
then follow “The Federal Judges Biographical Database” hyperlink to enter research terms for
sitting judges by gender and/or race). Of these judges, only approximately eighteen percent are
female. Id. Looking at both male and female judges, nine percent are African American, five
percent are Hispanic, and less than one percent of judges are either Asian American or Native
American. Id. Of the female judges, twelve percent are African American, seven percent are
143
Hispanic, and only one female judge, less than one percent, is Asian American. Id. There are no
Native American female judges. Id.
Data seem to support this idea of juries being more diverse and bringing broader perspectives to
bear. In one study of several major cities, women comprised 52.9% of federal court juries. Laura
Gaston Dooley, Our Juries, Our Selves: The Power, Perception, and Politics of the Civil Jury, 80
Cornell L. Rev. 325, 325 n.3 (1995). See also Nancy Marder, Books of Interest, Ass'n of Am.
Law Schools Section on Civil Proc. Newsletter (Ass'n of Am. Law Schools), Fall 2006, at 11, 12
(summarizing James Surowiecki, the Wisdom of Crowds (2004)) (“Groups of people... tend to
reach a more accurate answer than an individual decision-maker when the groups are large and
diverse and when the members can draw from their individual knowledge or perspective and can
hold their views independently without feeling the need to succumb to peer pressure.”).
[FN37]. See discussion of judge versus jury decision making infra Part VII.
[FN38]. See generally Tom R. Tyler & Hulda Thorisdottir, A Psychological Perspective on
Compensation for Harm: Examining the September 11th Victim Compensation Fund, 53 DePaul
L. Rev. 355 (2003).
[FN39]. Miller, supra note 9; Wald, supra note 3.
[FN40]. I have long been interested in the way in which procedural disputes are a locus of
“hidden” issues of gender. See Elizabeth M. Schneider, Gendering and Engendering Process, 61
U. Cin. L. Rev. 1223 (1993) (describing how insights derived from feminist legal theory can
contribute to a richer understanding of procedure); see generally Symposium, Feminist
Jurisprudence and Procedure, supra note 2. Conversely, my work on gender and law, and
violence against women, has been shaped by sensitivity to procedural issues. Elizabeth M.
Schneider, Battered Women and Feminist Lawmaking (2000); Elizabeth M. Schneider, Cheryl
Hanna, Judith G. Greenberg & Clare Dalton, Domestic Violence and the Law: Theory and
Practice (2d ed. 2008); Clare Dalton & Elizabeth M. Schneider, Battered Women and the Law
(2001).
[FN41]. See infra Part IV.
[FN42]. Wald, supra note 3 at 1897-98.
[FN43]. I could look at issues of gender more broadly than in cases of women plaintiffs since
“gender bias” is a broader phenomenon that affects both women and men. See Ann C. McGinley,
Masculinities At Work, 83 Or. L. Rev. 359 (2004) (discussing grants of summary judgment in
hostile environment cases on a broader theory of “masculinities” that comprises both a structure
144
that reinforces the superiority of men over women, and a series of practices, associated with
masculine behavior, performed by men or women, that aid men in maintaining their superior
position over women). I decided to start with women plaintiffs, while recognizing that gender
bias can also operate in many other contexts, particularly in cases involving same-sex
relationships or other “gender nonconformity.” See Julie A. Greenberg, The Gender
Nonconformity Theory: A Comprehensive Approach to Break Down The Maternal Wall and
End Discrimination Against Gender Benders, 26 T. Jefferson L. Rev. 37 (2003); Julie A.
Greenberg, What Do Scalia and Thomas Really Think About Sex? Title VII and Gender
Nonconformity Discrimination: Protection for Transsexuals, Intersexuals, Gays and Lesbians, 24
T. Jefferson L. Rev. 149 (2002); see also EEOC v. Grief Bros. Corp., No. 02-CV-468S, 2004
WL 2202641 (W.D.N.Y. Sept. 30, 2004) (denying summary judgment on gender conformity
theory in sexual harassment case); Centola v. Potter, 183 F. Supp. 2d 403 (D. Mass. 2002)
(denying summary judgment motion in part because fact question existed as to whether coworkers discriminated against employee because of his sex). One commentator has observed that
summary judgment is increasingly being used by district courts to dismiss cases where sexual
orientation discrimination claims and gender nonconformity claims are made, despite “mixed
motive” liability. Katie Eyer, Protecting Lesbian, Gay, Bisexual, and Transgender (LGBT)
Workers: Strategies for Bringing Employment Claims on Behalf of Members of the LGBT
Community in the Absence of Clear Statutory Protections, http:// www.acslaw.org/node/3008.
See Schroer v. Billington, 424 F. Supp. 2d 203 (D.D.C. 2006) (dismissing claim of Title VII
sexual stereotyping in transsexual employment case under Rule 12(b)(6)). Because this Article is
the first piece of a larger project, I hope that it will lead to further exploration along these lines.
[FN44]. See Burbank, supra note 8, for a discussion of the history of summary judgment. For a
general overview of summary judgment, see Edward Brunet & Martin H. Redish, Summary
Judgment: Federal Law And Practice (3d ed. 2006). Judge Patrick Higginbotham has noted the
change in the Administrative Office of the United States Courts definition of trial, which now
includes “any contested matter in which the judge takes evidence.” Patrick E. Higginbotham, So
Why Do We Call Them Trial Courts?, 55 SMU L. Rev. 1405, 1406 (2002).
[FN45]. Vivian Berger, Michael O. Finkelstein & Kenneth Cheung, Summary Judgment
Benchmarks for Settling Employment Discrimination Lawsuits, 23 Hofstra Lab. & Emp. L.J. 45,
46 (2005).
[FN46]. See Samuel Issacharoff & George Loewenstein, Second Thoughts About Summary
Judgment, 100 Yale L.J. 73, 100 (1990); see also Laurens Walker, The Other Federal Rules of
Civil Procedure, 25 Rev. Litig. 79, 89-90 (2006).
[FN47]. The present version of Rule 56 is viewed as a rule that is not easy to understand. In the
preliminary draft of the Proposed Style Revisions of the Federal Rules, Rule 56 has been revised
145
to emphasize the language “no genuine issue as to any material fact.” Though Rule 56(c) uses
this language clearly, Rule 56(d), in its previous form, used “a variety of different phrases” to
express the standard. By uniformly referring to the “no genuine issue as to any material fact”
standard in Rule 56(d), the Advisory Committee Notes to the Proposed Style Revisions argues
that the revised version of Rule 56 achieves consistency and eliminates ambiguity. Rule 56 has
also been revised to emphasize the court's discretion in granting summary judgment where there
is no genuine issue of material fact by replacing “shall” with “should.” However, the Advisory
Committee Notes recognize that this discretion is “seldom” used. Finally, Rule 56 has been
simplified to refer to a “claiming party,” replacing the previous litany of possible claimants, on
the ground that the prior language was incomplete. Advisory Comm. on Fed. Rules of Civil
Procedure, Report of the Civil Rules Advisory Committee (2006), available at
http://www.uscourts.gov/rules/Reports/CV06-2006.pdf.
The Proposed Style Revisions have been criticized for failing to achieve their goal of clarity. One
scholar has argued that changing the text of the Federal Rules, with the intent of leaving meaning
intact, opens the door for ambiguities in interpretation. Edward A. Hartnett, Against (Mere)
Restyling, 82 Notre Dame L. Rev. 155 (2006). The Proposed Style Revisions will become
effective on December 1, 2007. See Report of the Judicial Conference Committee on Rules of
Practice and Procedure 25 (Sept. 2006), available at http://
www.uscourts.gov/rules/Reports/ST09-2006.pdf.
[FN48]. For a discussion of judges confusing Rule 12(b)(6) motions to dismiss and summary
judgment, see Wald, supra note 3, at 1930-35. See generally Gregory v. Daly, 243 F.3d 687 (2d
Cir. 2001) (reversing dismissal on 12(b)(6) motion in woman plaintiff's Title VII sex
discrimination and retaliation claim). The Supreme Court's recent decision in Bell Atlantic Corp.
v. Twombly, 127 S. Ct. 1955 (2007), which has made it easier for district judges to dismiss cases
on 12(b)(6) motions, compounds the problem of summary judgment, and shows the Supreme
Court's “hostility to litigation.” See Scott Dodson, Pleading Standards After Bell Atlantic Corp.
v. Twombly, 93 Va. L. Rev. in Brief 121 (2007), available at http://
www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf; A. Benjamin Spencer, Plausibility
Pleading (Washington & Lee Legal Studies, Paper No. 2007-17, 2007) available at
http://ssrn.com/abstract=1003874; Suja A. Thomas, Why the Motion to Dismiss is Now
Unconstitutional, 92 Minn L. Rev. (forthcoming 2008), available at
http://ssrn.com/abstract=1010062.
[FN49]. Fed. R. Civ. P. 56 does not require a memorandum of law.
[FN50]. See Richard J. Gonzalez, Depositions In the Age of Summary Judgment, Trial, Aug.
2004, at 20 (arguing that in employment cases, the “old ways” of deposition taking are now
ineffective in the face of summary judgment motions, and suggesting that the plaintiff's
146
deposition answers should be lengthy and detailed). See also Hillary Richard & Deborah
Shapiro, How To Bring And Defend Summary Judgment Motions In Sexual Harassment Cases:
An Overview Of Recent Trends, Practicing L. Inst., June 2005, at 227 (noting importance of
plaintiff's development of deposition testimony in defending against a summary judgment
motion).
[FN51]. For example, in the District of Connecticut, the district court requires that, in addition to
a motion and memorandum of law, a statement of material facts must be submitted by a party
moving for summary judgment. The opposing party must admit or deny the facts upon
responding to the motion. D. Conn. R. 56. A similar statement of facts is required in the Northern
District of Illinois; however, the local rules limit the number of material facts in the statement.
Absent the court's permission for more, only eighty material facts are allowed to be submitted by
the moving party, and no more than forty additional facts may be submitted by the opposing
party. N.D. Ill. R. 56.1. A focus of current Advisory Committee on Civil Rules consideration of
Rule 56 is uniformity of summary judgment practice across federal districts. See discussion
supra, note 21.
[FN52]. S.D.N.Y. R. 56.1 (Statements of Material Facts on Motion for Summary Judgment);
Patrick F. Dorrian, Federal Judges Provide Insights On Summary Judgment Motions, 23 Empl.
Discrimination Rep. 516 (2004) (relating the discussion of S.D.N.Y. Judges Laura Taylor Swain
and John F. Keenan on the application of summary judgment in their courtrooms).
[FN53]. Dorrian, supra note 52. Judge Keenan stated that he holds pre-motion conferences in
employment cases on summary judgment, though he rarely does in other types of cases.
[FN54]. Id. Judge Swain stated that she requires a certification of prior consultation.
[FN55]. See generally Edward Brunet, The Use and Misuse of Expert Testimony in Summary
Judgment, 22 U.C. Davis. L. Rev. 93 (1988) (addressing only the use of affidavits of expert
witnesses in summary judgment, and not the use of live “expert testimony”); Brunet, supra note
12 (discussing live summary judgment hearings).
[FN56]. I am grateful to Minna Kotkin for helpful discussion of these issues. In the early
presentation of a new or innovative claim, “law summary judgments” are more common. The
judge has to interpret the law and may get it wrong. The judge's interpretation of the law may be
shaped by assessment of plaintiff or other witness credibility, and the judge may not be seeing
the full picture. With a more “mature” claim the law is more developed, so factual issues are
more likely to be the problem and “fact summary judgments” are more common. In either
context, the judge's failure to see the whole picture, to see the way in which the plaintiff
understands the harm in live testimony, may impact judicial determination of fact or law. And
147
law is always interpreted and understood in light of concrete facts, not in the abstract. See
Mandel v. Boston Phoenix, Inc., 456 F.3d 198 (1st Cir. 2006) (reversing verdict in defamation
action because summary judgment on issue of public figure was decided prematurely without
full factual development in the record). See also Brunet & Redish, supra note 44, for a discussion
of “law” and “fact” summary judgment.
There are, of course, larger questions about what is “fact” and what is “law.” Although the
distinction between fact and law is basic to Rule 56, scholars have suggested that the notion that
there is a clear distinction between the two is a “myth.” See, e.g., Ronald J. Allen & Michael S.
Pardo, The Myth of the Law-Fact Distinction, 97 Nw. U. L. Rev. 1769 (2003). The distinction
between fact and law in summary judgment is frequently confused by both judges and lawyers.
[FN57]. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1988).
[FN58]. See Gonzalez, supra note 50, at 20-21.
[FN59]. See Brunet, supra note 12; Friedenthal and Gardner, supra note 12; Charles M. Yablon,
Justifying the Judge's Hunch: An Essay on Discretion, 41 Hastings L.J. 231 (1990) (analyzing
the implicit assumptions in language used by judges to justify discretionary decisions).
[FN60]. Lyons v. Bilco Co., No. 3:01CV1106, 2003 U.S. Dist. LEXIS 20319 at *2 (D. Conn.
Sept. 30, 2003) (quoting Garza v. Marine Trans. Lines., Inc. 861 F.2d 23, 26 (2d Cir. 1988).
[FN61]. Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (emphasizing
the seriousness of summary judgment)).
[FN62]. See Mandel v. Boston Phoenix, Inc., 456 F.3d 198, 203 (1st Cir. 2006). In researching
this issue of “prematurity” of summary judgment, I found many cases in which judges
determined that the summary judgment motion was made too early. See also discussion of Smith
v. City of Jackson, 544 U.S. 228 (2005) infra note 287.
[FN63]. But for a different view see the comments of Judge Laura Taylor Swain of the Southern
District of New York, who suggests that in employment cases, plaintiffs “do not need to
convince the court of the merits of the case, just that fact issues have been raised.” Dorrian, supra
note 52. Most lawyers would say that that was true in the “old” summary judgment framework,
but not in the “new,” and that in the “new,” judges will grant summary judgment unless they
think that plaintiff can win at trial.
[FN64]. See Dorrian, supra note 52. Judge Keenan comments that since affidavits are not subject
to cross examination, he generally “‘approaches them as not as likely to be as persuasive’ as a
148
witness's deposition.” Id.
[FN65]. Id.
[FN66]. See, e.g., Rubens v. Mason, 387 F.3d 183 (2d Cir. 2004) (reversing district court grant
of summary judgment because affidavit that was basis of district judge's determination that “no
reasonable juror” could decide for the plaintiff was inadmissible).
[FN67]. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ( “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge.... [T]rial courts should [not] act other than with
caution in granting summary judgment.”). In addition, in Reeves v. Sanderson Plumbing
Products., Inc., 530 U.S. 133, 147 (2000), the Supreme Court emphasized the importance of jury
determinations of credibility. On the one hand, Reeves suggests that resolving issues of
credibility, and which inferences to draw from the evidence, “is the job of the jury,” and that
courts are required to disregard such issues at summary judgment. Dorrian, supra note 52
(quoting Patricia Beuninger). On the other, Reeves “eliminated the assumption held by many that
employment cases are uniquely appropriate for trial.” Dorrian, supra note 52 (quoting Gary D.
Friedman).
In theory, the judge should not be weighing credibility, must draw all reasonable inferences
against the moving party, and should deny the motion if there is a genuine issue of material fact.
But is this really possible when the judge has to weigh the evidence in order to decide whether
the plaintiff has a chance of winning at trial?
[FN68]. 127 S. Ct. 1769 (2007).
[FN69]. 127 S. Ct. at 1781 (Stevens, J. dissenting).
[FN70]. Id. at 1782.
[FN71]. Id. at 1784.
[FN72]. Id. at 1785.
[FN73]. See Stephen N. Subrin & Thomas O. Main, The Integration of Law and Fact in an
Uncharted Parallel Procedural Universe, 79 Notre Dame L. Rev. 1981 (2004) (arguing that in the
“parallel procedural universe” that operates underneath the summary judgment radar, summary
judgment may not do a good job of integrating law and fact).
149
[FN74]. Stephen N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil
Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909, 923-24 (1987); Subrin & Main,
supra note 73, at 1988.
[FN75]. Burbank, supra note 8, at 624-25 (calling this process “factual carving” and “legal
carving”). Michael Zimmer has also used the phrase “slicing and dicing” to describe “the
common practice of courts in slicing and dicing the evidence supporting plaintiff's case in order
to grant motions for summary judgment and judgment as a matter of law.” Michael J. Zimmer,
Slicing and Dicing of Individual Disparate Treatment Law, 61 La. L. Rev. 577, 577 (2001). In
this Article, I use the term “slice and dice” to include both factual and legal carving.
[FN76]. I am grateful to Susan Carle who raised this issue of law clerk decision making at the
Law and Society Roundtable. Penelope Pether concludes that the de facto delegation of the vast
majority of Article III judicial power to judicial clerks and staff attorneys has resulted in
disproportionate decisions against “have-nots.” Penelope Pether, Sorcerers, Not Apprentices:
How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 Ariz. State L.J. 1, 65 (2007).
[FN77]. I am grateful to Laura Kessler who raised this question at the Law and Society
Roundtable.
[FN78]. This raises interesting questions that go back to the distinction between law and fact.
The de novo review standard assumes that the district judge is deciding the legal question of
whether summary judgment was warranted, whether there are issues of material fact, and
whether judgment should be granted as a matter of law. See generally Rebecca Silver, Standard
of Review in FOIA Appeals and the Misuse of Summary Judgment, 73 U. Chi. L. Rev. 731, 737
(2006) (“When an appellate court reviews a summary judgment decision, the court uses the de
novo standard because summary judgment... implies there are no issues of fact in dispute....”).
[FN79]. See, e.g., Caprio v. Bell Atl. Sickness & Accident Plan, 374 F.3d 217, 220-21 (3d Cir.
2004) (vacating and remanding the district court's grant of summary judgment on the ground that
the district court had not explained the standard of review or the basis for its assessment of the
merits of the claims, which contravened the circuit court's requirement that every summary
judgment order contain an explanation of the ruling--the court of appeals suggested, in order to
avoid future problems, that lawyers should bring such oversights to the court's attention).
[FN80]. Wald, supra note 3, at 1939; Cecil et al., supra note 8, at 5.
[FN81]. See Jeffrey W. Stempel, A Distorted Mirror: The Supreme Court's Shimmering View of
Summary Judgment, Directed Verdict, and the Adjudication Process, 49 Ohio St. L.J. 95, 178
(1988) (arguing that an appellate court reviewing de novo a trial court's grant of summary
150
judgment is unlikely to review documentary evidence with the same vigor as did the trial court);
Friedenthal & Gardner, supra note 12, at 114-15.
[FN82]. See Stempel, supra note 81, at 177-78 (“[O]ne additional drawback of de novo appellate
review of documents [is] that... it is usually a poorer quality of fact finding than that conducted
by the trial court. At trial, the documents are not merely heaped before the trial judge....”).
[FN83]. Stempel, supra note 81, at 178.
[FN84]. Through the history of summary judgment, courts have exhibited a strong preference for
affording issues the light of a live trial, and admonished lower courts for having “trial by
affidavit.” Miller, supra note 9, at 1061, 1063, 1090-91; see also Paul W. Mollica, Federal
Summary Judgment at High Tide, 84 Marq. L. Rev. 141, 185-86 (2000) (arguing that due
process favors a litigant's right to live testimony).
[FN85]. See Roundtable Discussion: State/Federal Forums, Wis. L.J., Feb. 2, 2005, available at
http://www.wislawjournal.com/archive/2005/0202/roundtable-020205.html (reporting attorney
John D. Finerty, Jr.'s assertion that state courts present defense attorneys with more control than
do federal courts in getting a summary judgment motion heard).
[FN86]. JoEllen Lind, “Procedural Swift”: Complex Litigation Reform, State Tort Law, and
Democratic Values, 37 Akron L. Rev. 717, 717-19 (2004) (arguing that shifts in federal
standards for summary judgment and class certification, and development of federal “summary
judgment substitutes,” have allowed federal judges to reshape state tort law).
[FN87]. In Daubert v. Merrell Dow Pharmaceuticals., Inc., 509 U.S. 579 (1993), the Supreme
Court directed federal judges to act as “gatekeepers” in examining the method or reasoning
underlying proposed expert evidence, and to admit only evidence that is reliable and relevant. In
this Article, I use Daubert as shorthand for the trilogy of cases that developed the procedural
rules for admissibility of expert testimony, including Kumho Tire Co. v. Carmichael, 526 U.S.
137 (1999), and General Electric Co. v. Joiner, 522 U.S. 136 (1997).
[FN88]. Lind, supra note 86, at 771.
[FN89]. See Margaret A. Berger, Upsetting the Balance Between Adverse Interests: The Impact
of the Supreme Court's Trilogy on Expert Testimony in Toxic Tort Litigation, 64 Law &
Contemp. Probs. 289, 324 (2001). The procedural interconnections and overlap between Daubert
and summary judgment are troubling. A recent petition for certiorari in the United States
Supreme Court in an antitrust case presented the following questions: (1) whether lower courts
err when they meld the standards for summary judgment under Fed. R. Civ. P. 56, and the
151
relevance and reliability requirements for admissibility under Fed. R. Evid. 702; (2) whether, in
order to clarify the distinction between admissibility decisions and evidence sufficient to grant
summary judgment, courts have an obligation to give reasons--which cannot include weighing
testimony--why admissible expert evidence that reaches all material facts necessary to establish
claim for relief under applicable law is not sufficient to avoid summary judgment. Kochert v.
Greater Lafayette Health Servs., 463 F.3d 710 (7th Cir. 2006), cert. denied, 127 S. Ct. 1328
(2007).
[FN90]. Lloyd Dixon & Brian Gill, Rand Inst. for Civil Justice, Changes in the Standards for
Admitting Expert Evidence in Federal Civil Cases Since the Daubert Decision (2001).
[FN91]. Id. at xiii, xv (“[Federal] judges scrutinized reliability more carefully and applied stricter
standards in deciding whether to admit expert evidence.”); see also Carol Krafka, et al., Judge
and Attorney Experiences, Practices, and Concerns Regarding Expert Testimony in Federal Civil
Trials, 8 Psychol. Pub. Pol'y & L. 309, 330-31 (2002) (reporting results from judge and attorney
surveys that suggest greater scrutiny of scientific evidence in the wake of Daubert).
[FN92]. See Dixon & Gill, supra note 90, at 55-57.
[FN93]. Id. at 56-57.
[FN94]. See Robert G. Badal & Edward J. Slizewski, Economic Testimony Under Fire, 87
A.B.A. J. 56 (2001).
[FN95]. For a collection of decisions organized by type of expert witness involved, see Peter
Nordberg, Daubert Decisions by Field of Expertise, http://daubertontheweb.com/fields.htm (last
visited Aug. 29, 2007).
[FN96]. See Edward K. Cheng & Albert H. Yoon, Does Frye or Daubert Matter? A Study of
Scientific Admissibility Standards, 91 Va. L. Rev. 471, 473 (2005).
[FN97]. Id.
[FN98]. Berger, supra note 89, at 324 (citations omitted).
[FN99]. See Lucinda M. Finley, Guarding the Gate to the Courthouse: How Trial Judges are
Using Their Evidentiary Screening Role to Remake Tort Causation Rules, 49 DePaul L. Rev.
335 (1999) (stating that federal trial judges have used Daubert to make “substantive legal rules
on causation” in product liability cases by requiring plaintiffs to meet a higher standard of
scientific proof in order to survive summary judgment).
152
[FN100]. See Frank M. McClellan, Bendectin Revisited: Is There a Right to a Jury Trial in an
Age of Judicial Gatekeeping?, 37 Washburn L.J. 261, 264, 279-80 (1998) (asserting that Daubert
has made it “substantially more difficult for plaintiffs to win product liability cases,” and that this
has a race and class impact on litigants).
[FN101]. Although I briefly discuss Daubert issues in the context of women's cases of gender
discrimination and torts, see infra Parts IV and V, a close study of Daubert in these cases is
beyond the scope of this Article. It is, however, a part of my larger project.
[FN102]. See Berger, supra note 89; Parker, supra note 30; Joe S. Cecil, et al., Federal Judicial
Center, Trends in Summary Judgment Practice: A Preliminary Analysis (2001), http://
www.fjc.gov/public/pdf.nsf/lookup/summjudg.pdf/$file/summjudg.pdf (revealing an increase in
the rate of summary judgment motions filed since 1975); but see Cecil et al., supra note 8, at 4
(asserting that the number of summary judgment motions began to increase before the trilogy).
See also Burbank, supra note 8, at 593 (concluding that the number of cases terminated by
summary judgment has increased since 1956). In their recent study, Cecil, Eyre, Miletich, and
Rindskopf did not find that the likelihood of a summary judgment motion or termination by
summary judgment in “civil rights cases” had increased since the trilogy. They note:
Such civil rights cases comprise an increasing proportion of the federal district caseload, and the
impression of increasing summary judgments may be due to increasing numbers of civil rights
cases, which have a traditional high rate of termination by summary judgment. Of course, we
examined civil rights cases as a whole, and did not focus on the narrower category of
employment discrimination cases, which may follow a different pattern.
Cecil et al., supra note 8, at 38. See also Burbank, supra note 8.
[FN103]. See Burbank, supra note 8, at 591; see also Dorrian, supra note 52, at 516 (quoting
Judge Keenan of the S.D.N.Y. cautioning, “You have to be aware of your Circuit and its local
rules,” and contrasting Judge Keenan's practice of holding pre-motion e-conferences in
employment discrimination cases to Judge William J. Martini of the U.S. District Court for the
District of New Jersey's, noting that he was “not aware of the practice in the District of New
Jersey”); see also Cecil et al., supra note 8.
[FN104]. See Beiner, supra note 24, at 129-30 (arguing that courts are increasingly granting
summary judgment in employment discrimination cases based on lack of severity or
pervasiveness of the harassment); see also Medina, supra note 29, at 313-14 (highlighting
instances of judicial disbelief that harassment causes injury, which results in more frequent
grants of summary judgment in employment cases).
153
[FN105]. See Parker, supra note 30, at 895 (arguing that race-based employment cases are more
likely to be dismissed on summary judgment based on an empirical study of race, age, and
gender cases). Parker's study found that plaintiffs won summary judgment motions in race
discrimination cases only twenty-five percent of the time. Id. at 910 n.98.
[FN106]. See Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants, 34
Harv. C.R.-C.L. L. Rev. 99, 99-100 (1999) (arguing that courts may be abusing summary
judgment in ADA cases); see also Louis S. Rulli, Employment Discrimination Litigation Under
the ADA from the Perspective of the Poor: Can the Promise of Title I Be Fulfilled for LowIncome Workers In the Next Decade?, 9 Temp. Pol. & Civ. Rts. L. Rev. 345, 363 (2000) (noting
that employees face a Catch-22 when they are forced to demonstrate severe disabilities that do
not simultaneously prevent them from doing their jobs, a situation that often leads to a grant of
summary judgment for the defendant).
[FN107]. See McGinley, supra note 29, at 232-33.
[FN108]. See Berger, supra note 89, at 290-91.
[FN109]. See Margo Schlanger, Inmate Litigation, 116 Harv. L. Rev. 1555, 1594-95 (2003)
(reporting that a great majority of inmate civil rights cases are resolved in favor of defendants at
the pretrial stage).
[FN110]. See supra notes 12, 13, 102-109, and accompanying text.
[FN111]. See supra note 12 and accompanying text.
[FN112]. Miller, supra note 9, at 1132. Numerous district court judges concerned with summary
judgment have cited Miller for this proposition. See, e.g., Ziegler v. Inabata of Am., Inc., 316 F.
Supp. 2d 908, 914 (D. Colo. 2004).
[FN113]. See Higginbotham, supra note 44, at 1419-20; Wald, supra note 3, at 1937-39.
[FN114]. See Wald, supra note 3, at 1897.
[FN115]. Burbank, supra note 8, at 625-26.
[FN116]. Id.
[FN117]. Wald, supra note 3, at 1927.
154
[FN118]. Id.
[FN119]. See Burbank, supra note 8, at 624 (noting the phenomena in employment
discrimination cases); see also Mike McKee, California Justices Wary of Prison Trysts, The
Recorder, May 5, 2005, available at http://www.law.com (reporting that a California Supreme
Court justice was incredulous at the amount of proof required of plaintiffs by the lower court to
overcome defendant's motion for summary judgment in sexual harassment claim).
[FN120]. See Friedenthal & Gardner, supra note 12; see also Samuel R. Gross & Kent Syverud,
Don't Try: Civil Jury Verdicts in a System Geared Towards Settlement, 44 U.C.L.A. L. Rev. 1,
50-51 (1996).
[FN121]. Judge Posner's opinion in Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th
Cir. 1997) says it clearly:
The expanding federal caseload has contributed to a drift in many areas of federal litigation
toward substituting summary judgment for trial. The drift is understandable, given caseload
pressures that in combination with the Speedy Trial Act sometimes make it difficult to find time
for civil trials in the busier federal circuits. But it must be resisted unless and until Rule 56 is
modified.
Id. (citations omitted). See also, Anthony v. BTR Auto. Sealing Sys., Inc., 339 F.3d 506, 517
(6th Cir. 2003); Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d 169, 172 (7th Cir. 1996).
[FN122]. Mark W. Bennett, Judges' Views on Vanishing Civil Trials, 88 Judicature 306, 307
(2005).
[FN123]. Id.
[FN124]. Higareda v. Ford Motor Co., No. 01-1182-CV-W-HFS, 2003 U.S. Dist. LEXIS 16073,
at *23 n.14 (W.D. Mo. Sept. 2, 2003) (granting summary judgment in employment
discrimination case).
[FN125]. Id.
[FN126]. See generally, Eighth Circuit Report, supra note 1; Ninth Circuit Report, supra note 1.
[FN127]. See Burbank, supra note 8, at 624-26; see also Stempel, supra note 81, at 154.
[FN128]. 223 F.3d 434 (7th Cir. 2000).
155
[FN129]. 995 F. Supp. 340 (E.D.N.Y. 1998).
[FN130]. DeClue, 223 F.3d at 435-36.
[FN131]. Id. at 436.
[FN132]. Id. at 435-36.
[FN133]. Id. at 435.
[FN134]. Id. at 436-37.
[FN135]. Id. at 437 (Rovner, J. dissenting).
[FN136]. Id.
[FN137]. Id. at 437.
[FN138]. Id. at 437-38.
[FN139]. Id. at 438-39 (citation omitted).
[FN140]. Id. at 439 (citation omitted).
[FN141]. Id. at 440.
[FN142]. Ganzy, 995 F. Supp. at 344.
[FN143]. Id. at 345.
[FN144]. Id. at 345, 349.
[FN145]. Id. at 360.
[FN146]. Id. at 350-59.
[FN147]. Id. at 360.
[FN148]. Id.
156
[FN149]. Id. at 360-61.
[FN150]. A plenary session that I organized for the National Association of Women Judges
(NAWJ) Annual Conference in October 2001 addressed the issue of “Feminist Insights for
Everyday Cases.” This panel discussed some generic insights from feminist legal theory to assist
judges in determining the role of gender in “everyday cases,” cases that might not appear to
involve issues of gender. I am grateful to my co-panelists, Regina Austin, Martha Chamallas,
Sylvia Law, and Carol Sanger, who helped develop the ideas reflected in this paragraph.
[FN151]. Regina Austin, Presentation at NAWJ Conference (Oct. 5, 2001); see also Regina
Austin, “Bad for Business”: Contextual Analysis, Race Discrimination, and Fast Food, 34 J.
Marshall L. Rev. 207 (2000) (arguing that attention to context exposes hidden discrimination
embedded in contemporary social systems).
[FN152]. Martha Chamallas, Presentation at NAWJ Conference (Oct. 5, 2001); see also Martha
Chamallas, Discrimination and Outrage: The Migration from Civil Rights to Tort Law, 48 Wm.
& Mary L. Rev. 2115, 2118-22, 2180-87 (2007) [hereinafter Chamallas, Discrimination and
Outrage].
[FN153]. Carol Sanger, Presentation at NAWJ Conference (Oct. 5, 2001).
[FN154]. Sylvia Law, Presentation at NAWJ Conference (Oct. 5, 2001).
[FN155]. I used a variety of different research approaches to find district court, circuit court, and
Supreme Court published decisions on summary judgment involving women plaintiffs, and read
many summary judgment decisions involving male plaintiffs as well. My searches included a
general overview of summary judgment cases in the district courts and circuit courts from 20012005, district court cases granting summary judgment in which circuit courts reversed from
2001-2005, major gender discrimination cases at the Supreme Court level in which summary
judgment had been granted by the district court and then the decision was reversed on appeal,
and other searches.
I did not read these cases to assess whether there were disproportionate grants of summary
judgment as between men and women plaintiffs, or to draw empirical conclusions. Summary
judgment decisions on electronic databases do not provide a comprehensive picture of all
summary judgment decision making. See generally Brian N. Lizotte, Publish or Perish: The
Electronic Availability of Summary Judgment Grants from Eight District Courts, 2007 Wis. L.
Rev. 107. I am sensitive to the problems of relying on published cases as a basis to draw
empirical conclusions, and I am not doing so here. See Burbank, supra note 8, at 492; Cecil et al.,
supra note 8, at 8-9; infra Part V.
157
[FN156]. Since earlier scholarship on gender and summary judgment focused on “hostile
workplace” sexual harassment claims, I wanted to examine a fuller range of gender
discrimination claims, as well as tort claims made by women plaintiffs that were not explicitly
women's rights or gender discrimination claims.
[FN157]. See Deseriee A. Kennedy, Processing Civil Rights Summary Judgment and Consumer
Discrimination Claims, 53 DePaul L. Rev. 989, 996-1006 (2004) (discussing summary judgment
in consumer discrimination claims and arguing that premature dismissal prevents fair application
of the Civil Rights Act); Parker, supra note 30, at 910-12, 916 (discussing plaintiffs' likelihood of
winning on summary judgment in race-based employment discrimination suits).
[FN158]. Parker, supra note 30, at 928.
[FN159]. As my colleague Larry Solan observed, “It may be that courts are generally hostile to
employment discrimination cases, and since many are gender-based, this hostility impacts on
women disproportionately. Or more strongly it may be that gender-based claims are thrown out
more often than comparable claims involving discrimination based on age, race, etc.” E-mail
from Larry Solan, Professor of Law, Brooklyn Law School, to author (Oct. 24, 2001) (on file
with author). This is a critical question that my research has not yet resolved.
[FN160]. Examples discussed here are from published district and circuit court decisions.
Published district court cases are not reflective of the universe of summary judgment decisions
because many are not published. See Lizotte, supra note 155. Not all circuit court decisions
ruling on grants of summary judgment at the district court level are published. Stephen Burbank
says that circuit court data is skewed in favor of reversal, since appellate court affirmances of
summary judgment are not published--and denials of summary judgment by district courts are
not published. Telephone conference call with Stephen B. Burbank, Professor of Law, University
of Pennsylvania School of Law, and others (May 23, 2005).
[FN161]. See Jack B. Weinstein, Procedural Reform as a Surrogate for Substantive Law
Revision, 59 Brook. L. Rev. 827, 827-32 (1993); Finley, supra note 99, at 335-36.
[FN162]. Lee H. Rosenthal, et al., Conference on Electronic Discovery, PanelEight: Civil Rules
Advisory Committee Alumni Panel: The Process of Amending the Civil Rules, 73 Ford. L. Rev.
135, 136 (2004).
Rick Marcus gave me a word to describe some of the nature of the kind of insight that we gain at
these kind of conferences. What we are hearing is ‘anecdata.’... It is not empirical data and the
aura that that brings, but what it does bring are the varieties of experiences and difficulties and
158
costs and burdens and harms that can arise if we don't understand what we are trying to do and
don't appreciate the potential for mischief that can arise.
[FN163]. See supra notes 1, 24, and accompanying text.
[FN164]. See Kevin M. Clermont & Stewart J. Schwab, How Employment Discrimination
Plaintiffs Fare in Federal Court, 1 J. Empir. Leg. Stud. 429 (2004); Selmi, supra note 30; Michael
Selmi, Sex Discrimination in the Nineties, Seventies Style: Case Studies in the Preservation of
Male Workplace Norms, 9 Emp. Rts. & Emp. Pol'y J. 1 (2005).
[FN165]. Clermont & Schwab, supra note 164, at 432. Clermont and Schwab suggest that
“[n]ontrial adjudication, such as by pretrial motion, has stayed comparable over the years for
employment discrimination and other cases, at about 20 percent of the cases overall. It seems to
be gently increasing with time.” Id. at 440. They also see employment discrimination cases as
settling less frequently than other cases. “Employment discrimination plaintiffs have a tough row
to hoe. They manage many fewer happy resolutions early in litigation, and so they have to
proceed toward trial more often. They win a lower proportion of cases during pretrial and at
trial.” Id. at 429.
[FN166]. See Beiner, supra note 24; Theresa M. Beiner, Gender Myths v. Working Realities:
Using Social Science to Reformulate Sexual Harassment Law (2005) [hereinafter Beiner, Gender
Myths]. Theresa Beiner's work has explored the problems of summary judgment in “hostile
environment” sexual harassment cases. See Beiner, supra note 24; Beiner, Gender Myths, supra.
She has focused on the way in which judges decided the “severity” and “pervasiveness”
requirement of “hostile environment” claims without hearing live witnesses, how the factspecific inquiry that the case be decided on the basis of a “totality of the circumstances” is in
conflict with resolution on summary judgment, and that the standard that harassment be judged
on the basis of a “reasonable person” standard necessarily involves “norms of appropriate
behavior that are better judged by a jury of the plaintiff's peers than a single judge.” Beiner,
supra note 24, at 133-34. She analyzes judges' failure to take “evidence of women's stories” into
consideration in their analysis of sexual harassment. Theresa M. Beiner, Using Evidence of
Women's Stories in Sexual Harassment Cases, 24 U. Ark. Little Rock L. Rev. 117 (2001)
[hereinafter Beiner, Women's Stories]. Beiner suggests that there is a gap between what social
scientists tell us about harassment and what courts believe. Theresa M. Beiner, Let the Jury
Decide: The Gap Between What Judges and Reasonable People Believe is Sexually Harassing,
75 S. Cal. L. Rev. 791 (2002) [hereinafter Beiner, Let the Jury Decide]. She argues that the
conflict between “gender myths” and “working realities” drives the distortion of sexual
harassment jurisprudence and summary judgment determination. See Beiner, Gender Myths,
supra.
159
[FN167]. See McGinley, supra note 29.
[FN168]. See Medina, supra note 29.
[FN169]. See Schnapper, supra note 29.
[FN170]. See Joan C. Williams & Nancy Segal, Beyond The Maternal Wall: Relief for Family
Caregivers Who Are Discriminated Against on the Job, 26 Harv. Women's L.J. 77 (2003); Dee
McAree, ‘Sex-Plus' Gender Bias Lawsuits on the Rise, Nat'l L.J., Mar. 2005, at 4, 4; Joan. C.
Williams & Elizabeth S. Westfall, Deconstructing the Maternal Wall: Strategies for Vindicating
the Civil Rights of “Carers” in the Workplace, 13 Duke J. Gender L. & Pol'y 31 (2006).
[FN171]. 365 F.3d 107 (2d Cir. 2004). See Mark Hamblett, Judging Motherhood: Beware, Nat'l
L.J., Apr. 2004, at 4, 4.
[FN172]. Back, 365 F.3d at 120.
[FN173]. Id.
[FN174]. Id. at 116.
[FN175]. Id. at 117.
[FN176]. Id. at 119-20.
[FN177]. Id. at 120.
[FN178]. Id. at 130.
[FN179]. 405 F.3d 1092 (10th Cir. 2005).
[FN180]. Id. at 1093.
[FN181]. Id.
[FN182]. Id. at 1108.
[FN183]. Id. at 1101.
160
[FN185]. Id. (citation omitted).
[FN186]. Id. at 1107.
[FN187]. 223 F.3d 721 (8th Cir. 2000).
[FN188]. Id. at 723-24.
[FN189]. Id. at 726-27.
[FN190]. Id. at 728-29.
[FN191]. Id. at 734-35.
[FN192]. 453 F.3d 1000 (8th Cir. 2006).
[FN193]. Id. at 1002.
[FN194]. Id.
[FN195]. Id. at 1003 (Lay, J., dissenting).
[FN196]. Id. at 1003-04.
[FN197]. Id. (citation omitted).
[FN198]. 458 F.3d 830 (8th Cir. 2006).
[FN199]. Id. at 831-32.
[FN200]. Id. at 831.
[FN201]. Id.
[FN202]. Id. at 836 (Lay, J., dissenting).
[FN203]. Id. at 836-37.
161
[FN205]. 459 F.3d 903 (8th Cir. 2006).
[FN206]. Id. at 906.
[FN207]. Id.
[FN208]. Id. at 917.
[FN209]. Id. (Lay, J., dissenting in part).
[FN210]. Id. at 918.
[FN211]. 444 F.3d 255 (4th Cir. 2006), rev'd en banc, 482 F.3d 686 (4th Cir. 2007), cert. denied,
128 S. Ct. 247 (2007).
[FN212]. Id. at 255.
[FN213]. Id. at 283.
[FN214]. Id. at 263.
[FN215]. Id. at 260.
[FN216]. Jennings v. Univ. of N.C. at Chapel Hill, 240 F. Supp. 2d 492 (M.D.N.C. 2002).
[FN217]. Jennings, 444 F.3d at 283 (Michael, J., dissenting).
[FN218]. Jennings v. Univ. of N.C. at Chapel Hill, 482 F.3d 686, 702 (4th Cir. 2007).
[FN219]. See Jennings, 444 F.3d at 274 (majority opinion).
[FN220]. The majority opinion references such remarks as “f***of the week,” “fat a**,” and
“who are you f***ing?” Id. at 260, 261, 263.
[FN221]. Id. at 283 (Michael, J., dissenting); see also Jennings, 482 F.3d 686.
[FN222]. Jennings, 482 F.3d at 691-93.
[FN223]. Id. at 696.
162
[FN224]. See id. at 697, 698, 700.
[FN225]. 703 F. Supp. 1092 (S.D.N.Y. 1989).
[FN226]. Id. at 1093.
[FN227]. Id. at 1102.
[FN228]. Sorlucco v. N.Y. City Police Dep't., 888 F.2d 4, 8 (2d Cir. 1989).
[FN229]. Sorlucco v. N.Y. City Police Dep't., 780 F. Supp. 202, 216 (S.D.N.Y. 1992), rev'd, 971
F.2d 864, 875 (2d Cir. 1992).
[FN230]. Id. Other cases in which district court judges granted judgment as a matter of law to set
aside jury verdicts entered for women plaintiffs in sexual harassment cases, where their decisions
are affirmed by circuit courts, include Duncan v. General Motors, 300 F.3d 928, 934 (8th Cir.
2002) (affirming judgment as a matter of law for defendant because plaintiff failed to show that
the workplace was “permeated with discriminatory intimidation, ridicule, and insult”), and
Ocheltree v. Scollon Products, Inc., 335 F.3d 325, 327 (4th Cir. 2003) (affirming district court
judgment as a matter of law setting aside the jury verdict for plaintiff on sex-based employment
discrimination claim on compensatory damages, and also affirming judgment as a matter of law
to set aside the jury verdict on punitive damages because defendant employer did not have
requisite knowledge of the harassment).
[FN231]. 458 U.S. 718 (1982) (affirming, but narrowing, circuit reversal).
[FN232]. 479 U.S. 272 (1987).
[FN233]. 499 U.S. 187 (1991).
[FN234]. 524 U.S. 742 (1998).
[FN235]. 544 U.S. 167 (2005).
[FN236]. 538 U.S. 721 (2003) (upholding the constitutionality of the application of the FMLA to
state employees).
[FN237]. Id. at 725.
163
[FN238]. Id.
[FN239]. Id. at 725, 740.
[FN240]. Justice Rehnquist wrote:
The FMLA aims to protect the right to be free from gender-based discrimination in the
workplace....The history of the many state laws limiting women's employment opportunities is
chronicled in--and, until relatively recently, was sanctioned by--this Court's own opinions....
Congress responded to this history of discrimination by abrogating States' sovereign immunity in
Title VII of the Civil Rights Act of 1964....According to evidence that was before Congress
when it enacted the FMLA, States continue to rely on invalid gender stereotypes in the
employment context, specifically in the administration of leave benefits....As the FMLA's
legislative record reflects, a 1990 Bureau of Labor Statistics (BLS) survey stated that 37 percent
of surveyed private-sector employees were covered by maternity leave policies, while only 18
percent were covered by paternity leave policies.... Congress also heard testimony that... ‘Even...
[w]here child-care policies do exist, men, both in the public and private sectors, receive
notoriously discriminatory treatment in their requests for such leave’... Many States offered
women extended maternity leave that far exceeded the typical 4- to 8-week period... but very few
States granted men a parallel benefit: Fifteen States provided women up to one year of extended
maternity leave, while only four provided men with the same.... This and other differential leave
policies were not attributable to any differential physical needs of men and women, but rather to
the pervasive sex-role stereotype that caring for family members is women's work.
Id. at 728-31 (citations omitted).
[FN241]. See id. at 726.
[FN242]. Joan C. Williams, Hibbs as a Federalism Case; Hibbs as a Maternal Wall Case, 73 U.
Cin. L. Rev. 365, 371-73, 382 (2004).
[FN243]. Linda Greenhouse, Justices, 6-3, Rule Workers Can Sue States Over Leave, N.Y.
Times, May 28, 2003, at A1.
[FN244]. 542 U.S. 129 (2004).
[FN245]. Id. at 134.
[FN246]. Id. at 133.
[FN247]. 524 U.S. 742 (1998).
164
[FN248]. 524 U.S. 775 (1998).
[FN249]. Pa. State Police, 542 U.S. at 137.
[FN250]. Suders v. Easton, 325 F.3d 432, 435 (3d Cir. 2003).
[FN251]. Pa. State Police, 542 U.S. at 150-52.
[FN252]. 444 F.3d 1104, 1106 (9th Cir. 2006).
[FN253]. Id. at 1105-06.
[FN254]. Id. at 1111.
[FN255]. See generally, Michael Selmi, The Many Faces of Darlene Jesperson, 14 Duke J.
Gender L. & Pol'y 467 (2007).
[FN256]. 422 F.3d 840 (9th Cir. 2005).
[FN257]. Id. at 842.
[FN258]. Id.
[FN259]. Id. at 845.
[FN260]. Id. at 846.
[FN261]. Id.
[FN262]. Id.
[FN263]. Wald, supra note 3, at 1941-45.
[FN264]. 432 F.3d 1114 (10th Cir. 2005).
[FN265]. Id. at 1120-22.
[FN266]. Id. at 1124-26.
165
[FN267]. 324 F.3d 1252 (11th Cir. 2003).
[FN268]. Id. at 1254-55.
[FN269]. Id. at 1262-63.
[FN270]. Id.
[FN271]. Wald, supra note 3, at 1939.
[FN272]. 372 F. Supp. 2d 1229 (D. Colo. 2005).
[FN273]. See id. at 1231-32.
[FN274]. Id. at 1242.
[FN275]. Id. at 1244-46.
[FN276]. Id. at 1246.
[FN277]. Simpson v. Univ. of Colorado, 500 F.3d 1170, 1184-85 (10th Cir. 2007) (citations
omitted).
[FN278]. 187 F.3d 553 (6th Cir. 1999).
[FN279]. Id. at 562-64.
[FN280]. Id. at 562-63.
[FN281]. Id. at 563.
[FN282]. Wald, supra note 3, at 1897-98.
[FN283]. Clermont & Schwab, supra note 164, at 451.
[FN284]. I am grateful to Nan Hunter who raised this question with me. My view is that Title
VII and other employment claims do present novel and innovative issues. Law shaped by the
development of new factual patterns continues to evolve.
[FN285]. See generally Joseph E. Slater et al., Proof and Pervasiveness: Employment
166
Discrimination In Law and Reality After Desert Palace, Inc. v. Costa: Proceedings of the 2005
Annual Meeting, Association of American Law Schools, Sections On Employment
Discrimination, Civil Rights, Labor Relations and Employment Law, and Minority Groups, 9
Emp. Rts. & Emp. Pol'y J. 427 (2005).
[FN286]. Charles A. Sullivan, Circling Back To The Obvious: The Convergence of Traditional
And Reverse Discrimination in Title VII Proof, 46 Wm. & Mary L. Rev. 1031, 1128 (2004).
[FN287]. Id. at 1128. The Supreme Court case, Smith v. City of Jackson, 544 U.S. 228 (2005),
involving age discrimination with women plaintiffs, is another example. The district court
dismissed on summary judgment, and the court of appeals affirmed the dismissal of plaintiffs'
disparate impact claim as unavailable under the ADEA, but vacated summary judgment for
defendant on the disparate treatment claim as “premature.” Id. at 231. The Supreme Court found
that there was a claim of “disparate impact” that was cognizable, although plaintiffs had not
presented it properly. Id. at 232.
[FN288]. 139 F.3d 338 (2d Cir. 1998).
[FN289]. Id. at 342.
[FN290]. See, e.g., Mary Becker, Caring for Children and Caretakers, 76 Chi.-Kent L. Rev.
1495, 1517-21 (2001); Beiner, supra note 24, at 119-20; Medina, supra note 29, at 361; Selmi,
supra note 30.
[FN291]. Becker, supra note 290, at 1517-21
[FN292]. Selmi, supra note 30, at 568-69. Selmi describes the life circumstances, privileges, and
attitudes toward working women of many federal judges, which make it difficult for them to see
women's employment discrimination cases fairly.
[FN293]. I am grateful to Jeff Stempel who made this point at the Law and Society Roundtable.
[FN294]. See Parker, supra note 30.
[FN295]. Expert testimony in women's rights cases is now common. An early women's rights
case involving expert testimony was Price Waterhouse v. Hopkins, in which social psychologist
Susan Fiske testified as to the way in which sex stereotyping impacts employment decisions such
as partnership selection. 490 U.S. 228, 235-37 (1989).
[FN296]. See Linda Hamilton Krieger, The
167
Approach to Discrimination and Equal Employment Opportunity, 47 Stan. L. Rev. 1161, 1188
(1995)
[FN297]. Id. Recently, this area of research has expanded to include “implicit bias,” a scientific
study of “unconscious mental processes” and their effects on sexual discrimination. Anthony G.
Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Foundations, 94 Cal. L. Rev. 945
(2006).
[FN298]. See Williams & Segal, supra note 170, at 132 n.368 (citing Krieger, supra note 296, at
1238).
[FN299]. Beiner, Gender Myths, supra note 166, at 12-14.
[FN300]. See Minna J. Kotkin, Book Review, 55 J. Legal Educ. 613, 617 (2005) [hereinafter
Kotkin, Book Review] (reviewing Beiner, Gender Myths, supra note 166).
[FN301]. See Chamallas, Discrimination and Outrage, supra note 152; see also Martha
Chamallas, Civil Rights in Ordinary Tort Cases: Race, Gender, and the Calculation of Economic
Loss, 38 Loy. L.A. L. Rev. 1435 (2005) [hereinafter Chamallas, Ordinary Tort Cases]; Martha
Chamallas, The Architecture of Bias: Deep Structures in Tort Law, 146 U. Pa. L. Rev. 463
(1998); Martha Chamallas, Questioning the Use of Race-Specific and Gender-Specific Economic
Data in Tort Litigation: A Constitutional Argument, 63 Fordham L. Rev. 73 (1994); Martha
Chamallas with Linda K. Kerber, Women, Mothers and the Law of Fright: A History, 88 Mich.
L. Rev. 814 (1990).
[FN302]. See Lucinda M. Finley, The Hidden Victims of Tort Reform: Women, Children, and
the Elderly, 53 Emory L.J. 1263 (2004); see also Lucinda M. Finley, Female Trouble: The
Implications of Tort Reform for Women, 64 Tenn. L. Rev. 847 (1997).
[FN303]. See, e.g., Thomas Koenig & Michael Rustad, His and Her Tort Reform: Gender
Injustice in Disguise, 70 Wash. L. Rev. 1 (1995).
[FN304]. See, e.g., Joan Steinman, Women, Medical Care, and Mass Tort Litigation, 68 Chi.Kent. L. Rev. 409 (1992).
[FN305]. See, e.g., Anita Bernstein, Hymowitz v. Eli Lilly & Co.: Markets of Mothers, in Torts
Stories 151 (Robert L. Rabin & Stephen D. Sugarman, eds., 2003).
[FN306]. See Koening & Rustad, supra note 303, at 1.
168
[FN307]. Id. at 38.
[FN308]. Id. at 35-37.
[FN309]. Id. at 61-62.
[FN310]. See Finley, supra note 302; Carrie Menkel-Meadow, Taking The Mass Out of Mass
Torts: Reflections of a Dalkon Shield Arbitrator on Alternative Dispute Resolution, Judging,
Neutrality, Gender and Process, 31 Loy. L.A. L. Rev. 513 (1998) (discussing author's work on
Dalkon Shield arbitrations). I am grateful to Margaret Berger and Aaron Twerski who
encouraged me to develop this Part.
[FN311]. See Chamallas, Ordinary Tort Cases, supra note 301, at 1437; see also Richard Abel,
Civil Rights and Wrongs, 38 Loy. L.A. L. Rev. 1421 (2005).
[FN312]. Tort cases in federal court are only a segment of tort cases generally, since most tort
cases are litigated in state court. My focus in this Article is federal civil litigation, so I am only
interested in tort cases litigated in federal court. This Part only begins to explore the problem of
summary judgment in federal tort litigation involving women plaintiffs. A full discussion is
beyond the scope of this Article.
[FN313]. Miller, supra note 9, at 985-1007.
[FN314]. Lore v. Lone Pine Corp., No. L-33606-85, 1986 WL 637507 (N.J. Super. Law Div.
Nov. 18, 1986); James P. Muehlberger & Boyd S. Hoekel, An Overview of Lone Pine Orders in
Toxic Tort Litigation, 71 Def. Couns. J. 366, 366 (2004). Lone Pine orders typically require
plaintiffs:
[T]o provide an affidavit by a date certain stating: (1) the identity and amount of each chemical
to which the plaintiff was exposed; (2) the precise disease or illness from which the plaintiff
suffers; and (3) the evidence supporting the theory that exposure to the defendant's chemicals
caused the injury in question.
Id. at 366-67. Other evidence can also be required, such as “the dates of the exposure to the
substance, the method of exposure ..., and affidavits from medical experts supporting causation.”
Id. at 367. Although these orders developed from Lone Pine Corp., a New Jersey state court
decision, they have also been used in federal court. Id. at 370-73.
[FN315]. See Koenig & Rustad, supra note 303.
[FN316]. Miller, supra note 9, at 1083-84.
169
[FN317]. Baldwin v. Stonebridge Life Ins. Co., 283 F. Supp. 2d 1148, 1150 (D. Colo. 2003).
[FN318]. Id. (quoting Miller, supra note 9, at 1090).
[FN319]. 24 F. App'x. 533 (6th Cir. 2001).
[FN320]. Id. at 533-34.
[FN321]. Id. at 538-39 (alternations in original) (citation omitted).
[FN322]. 167 F.3d 286 (6th Cir. 1999).
[FN323]. Id.
[FN324]. Id. at 290-93.
[FN325]. 298 F.3d 1114 (9th Cir. 2002).
[FN326]. Id. at 1116-17.
[FN327]. Id. at 1118.
[FN328]. Id. at 1119 (Ferguson, J., dissenting).
[FN329]. 338 F.3d 491 (6th Cir. 2003).
[FN330]. Id. at 493.
[FN331]. Id. at 493-94.
[FN332]. Id. at 497.
[FN333]. Id. at 496.
[FN334]. Id. (quoting Restatement (Second) of Torts § 46 cmt. d (1965)).
[FN335]. Akers, 338 F.3d at 496. Under state law, plaintiff's claim of a tort of outrage had to
show that defendant's behavior was, among other things, “so outrageous and intolerable so as to
offend generally accepted standards of morality and decency.” Id. According to the
170
(Second) of Torts § 46 cmt. d (1965), the standard for outrageous behavior should be determined
by “an average member of the community.” In reversing summary judgment for the defendants
on the tort of outrage claim, the court determined that Akers was “just such a case” to be decided
by a jury of average community members. 338 F.3d at 496.
[FN336]. 295 F.3d 1194 (11th Cir. 2002). I am grateful to Aaron Twerski who led me to this
case.
[FN337]. Id. at 1195-96.
[FN338]. Id. at 1196.
[FN339]. Id.
[FN340]. Id.
[FN341]. Id. at 1203.
[FN342]. 28 U.S.C.A. §§ 1332(d), 1453, 1711-1715 (2006).
[FN343]. See Margaret Berger, Evidence Law to Protect The Civil Defendant, but Not The
Accused, in Law And Class In America: Trends Since The Cold War (P. Carrington and T.
Jones, eds., 2006); supra note 86 and accompanying text.
[FN344]. Beiner, supra note 24; see supra notes 1, 24-25.
[FN345]. In 2002, I requested access to the FJC's summary judgment database from thenDirector of the FJC, United States District Judge Fern M. Smith, in order to conduct the research
on the impact of gender on summary judgment described in this Part. This request was supported
by the National Association of Women Judges (NAWJ), a national organization of women
federal and state judges, with whom I am affiliated as Chair of NAWJ's Judicial-Academic
Network, and to whom I had made an early presentation on this project. See National
Association of Women Judges, http://www.nawj.org (last visited June 20, 2007). I am grateful to
Senior Research Associate Joe S. Cecil and Research Associate Rebecca Eyre at the Federal
Judicial Center for their work on this study, their thoughtful analyses of the data, and their
commitment to this research project. For discussion of the FJC summary judgment database, see
Burbank, supra note 8, at 611; see also Joe S. Cecil, Dean P. Miletich & George Cort, Fed.
Judicial Ctr., Trends in Summary Judgment Practice: A Preliminary Analysis (November 2001),
http://www.fjc.gov/library/fjc_catalog.nsf/autoframepage!openform&url=/
library/fjc_catalog.nsf/DUnpublishedResearch!
171
openform&parentunid=2E2FACB5102C8FAB85256D48006745BD. The Integrated Database is
available at http://www.icpsr.umich.edu/cocoon/ICPSR/STUDY/08429.xml. I am also grateful to
Chelsea Chaffee and Ashley Van Valkenburgh, who worked with the data.
[FN346]. For purposes of this analysis, the FJC excluded prisoner cases, social security cases,
student loan repayment cases, and multidistrict litigation cases.
[FN347]. The moving parties were coded as plaintiff, defendant, or third party. Fed. Judicial Ctr.,
Motions for Summary Judgment in Federal Court Docket Sheets: Coding Manual 4 (2001).
[FN348]. The type of summary judgment motion was coded as summary judgment, partial
summary judgment, summary judgment or motion to dismiss, summary judgment or remand, or
other. Id. at 5.
[FN349]. The court's ruling on the action was coded as denied, granted in whole, granted in part,
adopt the magistrate's report and recommendation, or uncertain/other. Id. at 6.
[FN350]. The “other” category of cases was comprised of all the cases that could not be fairly
characterized as contract, torts, or civil rights cases. The most common type of case was recorded
as “other statutory action.”
[FN351]. Parties were separated into the following categories: male, female, corporate, multiple
individuals (at least one male and one female), government, and unknown. If a party consisted of
individuals and a corporation, the party was coded as corporate. Similarly, if a party consisted of
individuals or a corporation and a government entity, the party was coded as government. If a
party consisted of an individual being sued (or suing) in her or his official capacity, the party was
coded as corporate or government (whatever the case might be).
[FN352]. Attorneys were categorized as male, female, multiple individuals (at least one male and
one female), or unknown.
[FN353]. Judges were categorized as male, female, or unknown.
[FN354]. Magistrates were categorized as male, female, or unknown.
[FN355]. Cases were classified by the following causes of action: employment discrimination
(including ADA); civil rights (including prisoner civil rights); personal injury; breach of
contract; employee benefits; product liability; habeas corpus; bankruptcy; labor
(nonemployment); property rights (copyright, patent, trademark); property (personal/real);
admiralty; uncertain/other. “Other” included claims such as the following: antitrust;
172
forfeiture/penalty; banks & bankruptcy; Freedom of Information Act; taxes; and Securities and
Exchange Commission. Social security cases and student loan cases were excluded from the
random sample.
[FN356]. “Summary judgment-type motions” include motions for summary judgment, partial
summary judgment, summary judgment or motion to dismiss, summary judgment or remand, and
other.
[FN357]. Of the 1422 summary judgment-type motions made against all plaintiffs, 115 of the
plaintiffs were represented by female attorneys, 1050 were represented by male attorneys, and
257 were represented by at least one female and one male attorney. Of those 1422 summary
judgment-type motions, 323 of them were presided over by female judges and 1099 were
presided over by male judges. Even at this beginning point in the study, it was evident that the
small sample pool of female plaintiffs, attorneys, and judges might render the results
inconclusive.
[FN358]. FJC researchers created a new variable based on the previously coded outcome of the
motion, coding the outcomes as either granted (both in whole and in part) or denied.
Furthermore, FJC researchers only included observations where the relevant variable could be
coded as “male” or “female” (excluding “multiple,” “corporate,” “government,” and
“unknown”).
[FN359]. According to FJC researchers, the gender of the defense attorney appeared to have a
significant effect (p = .001) on the outcome of defendants' motions; indeed, female defense
attorneys were more likely to receive grants of summary judgment than their male counterparts.
Similarly, the gender of the judge had a marginal effect (p = .089) on the outcome; female judges
may have been more likely to grant defendants' summary judgment motions. In fact, female
judges were even more likely to grant summary judgment motions overall, creating a significant
effect (p = .0497).
FJC researchers next analyzed various interactions between the gender variables. They looked at
the effects of having a female plaintiff and male defense attorney, or a male judge and female
defense attorney, or a female plaintiff's attorney and male defense attorney. The confusing
pattern of results makes such interactions difficult to interpret. The only two statistically
significant interactions found were those of the gender of the plaintiff and the defense attorney,
and the gender of the judge and the plaintiff's attorney for defendant's summary judgment
motions. Within all summary judgment-type motions (not just motions made by defendants),
there was a significant interaction (p = .013) between the gender of the plaintiff and the gender of
the defense attorney. The likelihood of a summary judgment motion being granted was highest
when both the plaintiff and the defense attorney were female, followed by when both the plaintiff
173
and the defense attorney were male. In other words, more summary judgment-type motions were
granted overall when the plaintiff and the defense attorney were the same gender.
Within defendants' summary judgment-type motions, there was a marginal interaction (p = .096)
between the gender of the judge and of the plaintiff's attorney. The likelihood of a summary
judgment motion being granted was highest when the judge was male and the plaintiff's attorney
female, followed by when the judge was female and the plaintiff's attorney male. In other words,
plaintiffs benefit (i.e., have fewer of the defendants' motions granted against them) when the
judge and the plaintiff's attorney are the same gender.
FJC researchers next looked at specific causes of action and the effects of various gender
variables on defendants' summary judgment-type motions. The only causes of action that showed
any effect were employment discrimination cases, civil rights cases, contract cases, and products
liability cases. In employment discrimination cases, there was a significant effect (p = .025)
when the judge was female; female judges appeared to be more likely than male judges to grant
defendants' summary judgment motions in employment discrimination cases. In civil rights
cases, there was a significant effect (p = .008) when the plaintiff is male; male plaintiffs appeared
to be more likely than female plaintiffs to have summary judgment motions granted against them
in civil rights cases. This effect may be due to the large number of prisoner civil rights suits that
were brought by male plaintiffs. In breach of contract cases, there was a significant effect (p =
.026) when the defense attorney was female; female defense attorneys were more likely than
male defense attorneys to have summary judgment motions granted in breach of contract cases.
However, because there was a low sample size for female defense attorneys involved in breach
of contract cases, these results have questionable reliability. Finally, in products liability cases,
there was a significant effect (p = .012) when the plaintiff's attorney was male and a marginal
effect (p = .097) when the magistrate judge was male. Male plaintiff attorneys were more likely
than female plaintiff attorneys to have defendants' summary judgment-type motions granted
against them in products liability cases, and male magistrate judges were more likely than female
magistrate judges to grant summary judgment-type motions in products liability cases. However,
in both instances, the low sample size for females in the respective categories renders the
reliability of the results questionable. Moreover, the number of exploratory analyses conducted
suggests that some of the findings reaching or approaching statistical significance may have
occurred by chance.
[FN360]. To the extent that gender plays a role in summary judgment practice, the data
suggested that it may be related to the gender of the attorney and the gender of the judicial
officer. However, FJC researchers concluded “that there is great variation in summary judgment
activity across districts, and perhaps even across judges in the same district. It may be difficult to
detect any subtle effect of gender given the low numbers of women in some of the categories and
great variation due to other factors.” E-mail from Joe S. Cecil, Senior Research Associate,
Federal Judicial Center, to author (August 2, 2006) (on file with author).
174
[FN361]. A recent study of published employment discrimination decisions in the Second Circuit
found that forty-two percent of “sex claims” survived summary judgment. See Berger,
Finkelstein & Cheung, supra note 45, at 60. It divided these cases between “gender
discrimination” claims (where the survival rate was 33.3%) and “sexual harassment” claims
(where the survival rate was 52%). Id. The authors suggest that Judge Weinstein's decision in
Gallagher v. Delaney, 139 F.3d 338 (2d Cir. 1998) may have impacted the high rate of survival
of sexual harassment claims. See id. at 61.
[FN362]. Women seem to be plaintiffs largely in civil rights and employment discrimination
cases, and in reproductive harm tort cases. I am grateful to Joe S. Cecil for discussion of this
issue.
[FN363]. Rafael Gely & Timothy D. Chandler, Maternity Leave Under the FMLA: An Analysis
of the Litigation Experience, 15 Wash. U. J.L. & Pol'y 143, 162-63 (2004). This study looked at
published cases. Significantly, although only a few cases went to trial, in those that went to trial,
plaintiffs won at twice the rate of employers. See Parker, supra note 30, who concludes that race
and national origin discrimination cases are treated worse than gender discrimination cases. In
the category of race and national origin discrimination cases, Parker examined 467 federal court
opinions and found that fifty-nine percent of plaintiffs were men and thirty-nine percent of
plaintiffs were women. Id. at 897.
[FN364]. See Selmi, supra note 30, at 568; Miller, supra note 9, at 1062-74.
[FN365]. I am grateful to Martha Minow for the insight that my methodological approach to
research on summary judgment--that there are many sources of information to draw on for an
assessment of the interrelationship between gender and summary judgment--echoes my argument
here that judges should be ruling on a broader basis of information.
[FN366]. For a discussion of these various arguments in favor of jury determination, see Jason
Mazzone, The Justice and the Jury, 72 Brook. L. Rev. 35 (2006) (discussing Justice Blackmun's
views of juries).
[FN367]. See Miller, supra note 9, at 1019; Thomas, supra note 12.
[FN368]. Seth Rosenthal, The Jury Snub: A Conservative Form of Judicial Activism, Slate, Dec.
18, 2006, http://www.slate.com/id/2155723 (arguing that increased grants of summary judgment
are “a conservative form of judicial activism” that take cases away from juries).
[FN369]. See Brunet & Redish, supra note 44, at 20.
175
[FN370]. Beiner, Let the Jury Decide, supra note 166, at 819-21.
[FN371]. Suja A. Thomas, Judicial Modesty and the Jury, 76 U. Colo. L. Rev. 767 (2005)
(arguing for judicial “modesty” in decision making on the need for a jury).
[FN372]. 139 F.3d 338 (2d Cir. 1998).
[FN373]. Id. at 342.
[FN374]. See supra note 32 and accompanying text.
[FN375]. See Mollica, supra note 84, at 180-81.
[FN376]. See earlier discussion of Scott v. Harris, supra notes 20, 68 and accompanying text.
[FN377]. Id.
[FN378]. See Beiner, supra note 24, at 122-27.
[FN379]. See Kevin M. Clermont & Theodore Eisenberg, Trial By Jury or Judge: Transcending
Empiricism, 77 Cornell L. Rev. 1124 (1992). But see Laura Beth Nielsen & Robert L. Nelson,
Rights Realized? An Empirical Analysis of Employment Discrimination Litigation as a Claiming
System, 2005 Wis. L. Rev. 663. In this study, the authors found that plaintiffs (both men and
women) in employment discrimination cases had higher success rates in front of juries than in
bench trials. Id. at 698. When before a jury, plaintiffs win 25.2% of the time; however, the
plaintiff's success rate drops to 11% in front of a judge. Id.
[FN380]. See Selmi, supra note 30; Stempel, supra note 81.
[FN381]. See sources cited supra note 33.
[FN382]. See Theresa M. Beiner, What Will Diversity on the Bench Mean for Justice?, 6 Mich.
J. Gender & Law 113, 117-28 (1999); see also Ninth Circuit Report, supra note 1, at 783; Second
Circuit Report, supra note 33, at 89-99.
[FN383]. For a survey of existing studies, see Theresa M. Beiner, Female Judging, 36 U. Tol. L.
Rev. 821, 821 (2005). See also Jennifer L. Peresie, Female Judges Matter: Gender and Collegial
Decisionmaking in the Federal Appellate Courts, 114 Yale L.J. 1759 (2005).
176
[FN384]. Though some studies have shown gender effects, even these results are conflicting.
Some studies show that women judges are more likely to find for plaintiffs in discrimination and
other cases. See, e.g., Sarah Westergren, Gender Effects in the Courts of Appeals Revisited: The
Data Since 1994, 92 Geo. L.J. 689, 696 n.49 (2004) (citing Donald R. Songer, Sue Davis &
Susan Haire, A Reappraisal of Diversification in the Federal Courts: Gender Effects in the
Courts of Appeals, 56 J. Pol. 425 (1994) (suggesting that women judges vote differently in
discrimination cases)). In contrast, another study found that male judges are more likely to find
for women plaintiffs in “women's issue cases” involving claims such as gender discrimination
and sexual harassment. Jennifer A. Segal, Representative Decision Making on the Federal
Bench: Clinton's District Court Appointees, 53 Pol. Res. Q. 137, 146 tbl.3 (2000). One study
suggests that women federal judges are more likely to dispose of cases by settlement than their
male colleagues. Christina L. Boyd, She'll Settle It: Judges, Their Sex and the Disposition of
Cases in Federal District Courts (unpublished manuscript, on file with author).
[FN385]. Parker, supra note 30, at 918-19 (examining the effects of race and gender of judges in
the race discrimination context); Tracey E. George, Court Fixing, 43 Ariz. L. Rev. 9, 21 n.43
(2001) (citing Orley Ashenfelter, et al., Politics and the Judiciary: The Influence of Judicial
Background on Case Outcomes, 24 J. Legal Stud. 257, 277-81 (1995); Thomas G. Walker &
Deborah J. Barrow, The Diversification of the Federal Bench: Policy and Process Ramifications,
47 J. Pol. 596, 613-15 (1985)).
[FN386]. Christina L. Boyd, Lee Epstein & Andrew D. Martin, Untangling the Causal Effects of
Sex on Judging (2nd Annual Conference on Empirical Legal Studies Working Paper, 2007),
available at http://papers.ssrn.com/abstract_ id=1001748. This study analyzes prior research on
gender and judging and applies new methodology to a database developed by Cass Sunstein at
the University of Chicago, including sex discrimination suits resolved between 1995 and 2002.
The authors suggest that the differential effects of sex on judging in these cases “are so
consistent and persistent that they may surprise even those scholars who have long posited the
existence of gendered judging.” Id. at 1.
[FN387]. Peresie, supra note 383, at 1778.
[FN388]. See generally Kotkin, Book Review, supra note 300 (citing Cass R. Sunstein, David
Schkade & Lisa Michelle Ellman, Ideological Voting on Federal Courts of Appeals: A
Preliminary Investigation, 90 Va. L. Rev. 301 (2004); see also Tracey E. George, Developing a
Positive Theory of Decisionmaking on U.S. Courts of Appeals, 58 Ohio St. L.J. 1635, 1678-86
(1998).
[FN389]. See e.g., Peresie, supra note 383, at 1764; Theresa M. Beiner, The Elusive (But
Worthwhile) Quest for a Diverse Bench in the New Millennium [hereinafter Diverse Bench], 36
177
U.C. Davis L. Rev. 597, 599 (2002).
[FN390]. An “essentialist” view of gender and judging would suggest that women judges would
always rule differently than male judges in summary judgment cases involving issues of gender.
The new study by Boyd et al., on gender and judging certainly seems to show a considerable
gender impact in these cases. See Boyd et al., supra note 386. However, one judge has suggested
that there is a problem with women judges becoming increasingly conservative and wanting to
rule very cautiously, so as not to rule “too female.” Joan Dempsey Klein, Presiding Justice, Cal.
Ct. App., Comment at the NAWJ Annual Conference (Oct. 2004). See Beiner, Female Judging,
supra note 383, at 840-44 (discussing Justice Klein).
[FN391]. I am grateful to Martha Minow who characterized some of the possible gendered
dimensions of summary judgment decision making in this way. E-mail from Martha Minow,
Professor of Law, Harvard Law School, to author (Feb. 11, 2004) (on file with author); but see
Segal, supra note 384 and accompanying text. The data about the gender of judges granting
summary judgment from the study in Part VI do not seem to support this.
[FN392]. E-mail from Martha Minow, supra note 391. Christina Boyd's findings that women
judges are more likely to dispose of cases by settlement suggests otherwise. See Boyd, supra
note 384.
[FN393]. See Kotkin, Book Review, supra note 300, at 615-16.
[FN394]. Gallagher v. Delaney, 139 F.3d 338, 342-43 (2d Cir. 1998).
[FN395]. DeClue v. Central Ill. Light Co., 223 F.3d 434, 437-40 (7th Cir. 2000) (Rovner, J.,
dissenting in part).
[FN396]. Scheindlin & Elofson, supra note 19, at 822-24.
[FN397]. This standard has surfaced in discussions with federal judges about summary
judgment. Of course, it is difficult to distinguish among many different cases that might
implicate “social issues.”
[FN398]. Wald, supra note 3, at 1943; Guggenheim, supra note 12, at 331-33.
[FN399]. 365 F.3d 827 (9th Cir. 2004).
[FN400]. Id. at 832-34.
178
[FN401]. Id. at 834-35.
[FN402]. Clermont & Schwab, supra note 164, at 441-42.
[FN403]. Miller, supra note 9, at 1074-75.
[FN404]. I am grateful to Steve Burbank who made this point at the Law and Society
Roundtable.
[FN405]. See Miller, supra note 9, at 1062.
[FN406]. See Wald, supra note 3, at 1903-04.
[FN407]. Id. at 1942-43. See also Burbank, supra note 8, at 625-26.
[FN408]. See Beiner, Women's Stories, supra note 166, at 117-18.
[FN409]. There is certainly much discussion in the general summary judgment literature to this
effect. See generally Beiner, supra note 382.
[FN410]. See generally Minna J. Kotkin, Outing Outcomes: An Empirical Study of Confidential
Employment Discrimination Settlements, 64 Wash. & Lee L. Rev. 111 (2007); Minna J. Kotkin,
Invisible Settlements, Invisible Discrimination, 84 N.C. L. Rev. 927 (2006); Minna J. Kotkin,
Secrecy in Context: The Shadowy Life of Civil Rights Litigation, 81 Chi.-Kent L. Rev. 571
(2006).
[FN411]. Kotkin, Invisible Settlements, supra note 410, at 929.
[FN412]. Judith Resnik, Due Process: A Public Dimension, 39 U. Fla. L. Rev. 405, 406 (1987);
see also Judith Resnik, Uncovering, Disclosing and Discovering How The Public Dimensions of
Court-Based Processes Are At Risk, 81 Chi.-Kent L. Rev. 521 (2006).
[FN413]. See, e.g., Rachel B. Grand, “It's Only Disclosure”: A Modest Proposal for Partnership
Reform, 8 N.Y.U. J. Legis. & Pub. Pol'y 389, 406 (2005); Lizzie Barmes & Sue Ashtiany, The
Diversity Approach to Achieving Equality: Potential and Pitfalls, 32 Indus. L.J. 274, 274 (2004)
(discussing public attention to treatment of women in business after public airing of sexual
harassment claims).
[FN414]. Notably, scholars have used these cases to call for more transparency into company
practices. See Joanna L. Grossman, The Culture of Compliance: The Final Triumph of Form
179
over Substance in Sexual Harassment Law, 26 Harv. Women's L.J. 3 (2003).
[FN415]. Resnik, Due Process: A Public Dimension, supra note 412, at 413; Emily Bazelon,
Public Access to Juvenile and Family Court: Should the Courtroom Doors be Open or Closed?,
18 Yale L. & Pol'y Rev. 155, 180 (1999). See also Beiner, Let the Jury Decide, supra note 166,
at 846.
[FN416]. The majority opinion in the first Jennings decision by the Fourth Circuit is a
particularly egregious example of judicial censorship. See supra pp. 743-44.
[FN417]. Beiner, supra note 24, at 133.
[FN418]. Resnik, Due Process: A Public Dimension, supra note 412, at 413-14.
[FN419]. See id. at 418; see also Bazelon, supra note 415, at 180 (“Rather, a public presence
helps ensure that courts will follow established norms.”).
[FN420]. Rex R. Perschbacher & Debra Lyn Bassett, The End of Law, 84 B.U. L. Rev. 1, 16
(2004). Accord Deborah R. Hensler, Our Courts, Ourselves: How the Alternative Dispute
Resolution Movement Is Re-Shaping Our Legal System, 108 Penn St. L. Rev. 165, 196 (2003);
Deborah R. Hensler, A Glass Half Full, Glass Half Empty: The Use of Alternative Dispute
Resolution in Mass Personal Injury Litigation, 73 Tex. L. Rev. 1587, 1588 n.4 (1995); Judith
Resnik, Many Doors? Closing Doors? Alternative Dispute Resolution and Adjudication, 10 Ohio
St. J. on Disp. Resol. 211, 262-63. (1995). The move towards alternative dispute resolution, both
through contracted arbitration clauses and a push for ADR methods in the courts removes cases
even further from the public eye. See generally Larry J. Pittman, infra note 421; Judith Resnik,
For Owen M. Fiss: Some Reflections on the Triumph and the Death of Adjudication, 58 U.
Miami L. Rev. 173 (2004); Resnik, Many Doors, supra. These processes are almost always
without any public access, and often times even the outcome of the case is kept secret. ADR also
creates advantages for corporate “repeat offenders” and denies litigants a right to a jury of their
peers--“especially a concern for women and minorities who may be forced to arbitrate.” Jeremy
Kennedy, The Supreme Court Swallows a Legal Fly: Consequences for Employees As the Scope
of the Federal Arbitration Act Expands, 33 Tex. Tech. L. Rev. 1137, 1159-60 (2002). Scholars
have suggested that ADR should be brought within the “public civil justice” system to alleviate
these privatization concerns. See Richard C. Reuben, Constitutional Gravity: A Unitary Theory
of Alternative Dispute Resolution and Public Civil Justice, 47 UCLA L. Rev. 949, 1017 (2000)
(discussing the need to infuse constitutional protections into the alternative dispute resolution
system to expand the public justice system).
[FN421]. See Larry J. Pittman, The Federal Arbitration Act: The Supreme Court's Erroneous
180
Statutory Interpretation, Stare Decisis and a Proposal for Change, 53 Ala. L. Rev. 789, 890 n.529
(2002) (citing a Tania Padgett article about belief that arbitration was detrimental to the
resolution of the sexual harassment claims in the securities industry).
[FN422]. Settlement also takes controversial issues out of the public dimension. Often,
settlements are kept entirely under wraps in order to avoid any appearance of culpability or bad
press. Kotkin, Invisible Settlements, supra note 410, at 927.
[FN423]. See, e.g., Penelope Pether, Inequitable Injunctions: The Scandal of Private Judging in
the U.S. Courts, 56 Stan. L. Rev. 1435 (2004). Judges are refusing to publish opinions, or by depublishing them, stripping them of precedential authority. Id. at 1504. This change in the way
law is recorded (or rather, not recorded) on the books presents a host of problems--unfair
advantages to repeat offenders, race or gender bias, and stagnant development of the law
(including the art of writing a principled and well-organized opinion). Id. at 1483-1514. This
results in a situation where “the law is not responsive to the demands made of the law by citizen
litigants because it is forcibly controlled in ways not visible to litigants, lawyers, and other
citizens.” Id. at 1504.
[FN424]. Cecil & Cort, Estimates of Summary Judgment Activity, supra note 22.
[FN425]. Wald, supra note 3, at 1917.
[FN426]. Burbank, supra note 8, at 623.
[FN427]. See Miller, supra note 9, at 1063; see also Burbank, supra note 8. Even though district
court summary judgment decisions were reversed in cases that I analyze in Parts IV and V, there
were many that were not. See supra Parts IV.A-V.B.
[FN428]. David L. Shapiro, The Story of Celotex: The Role of Summary Judgment in the
Administration of Civil Justice, in Civil Procedure Stories 343 (Kevin M. Clermont ed., 2004).
[FN429]. I am grateful to Jeff Stempel for this idea.
[FN430]. I am grateful to Linda Silberman for this idea. This could also promote efforts to settle
in advance of the summary judgment decision, as opposed to after, although settlement would
still likely be contingent on summary judgment. See Berger, Finkelstein & Cheung, supra note
45, at 46-48.
[FN431]. Friedenthal & Gardner, supra note 12, at 93.
181
[FN432]. Beiner, supra note 24, at 133.
END OF DOCUMENT
(c) 2012 Thomson Reuters. No Claim to Orig. US Gov. Works
Bottom of Form
182