FOURTH CIRCUIT ISSUES SIGNIFICANT POST-IQBAL RULING[Posted December 3, 2009] Probably the most important decision from the US Supreme Court in the October 2008 term was Ashcroft v. Iqbal, which dramatically changed the way motions to dismiss are handled. Applying a recent antitrust ruling in Bell Atlantic v. Twombly broadly, Iqbal made it clear that district judges were required to dismiss complaints that stated “implausible” claims, even though the court was still required to accept as true the factual assertions therein. Yesterday, the Fourth Circuit handed down Francis v. Giacomelli, a civil-rights decision in which the court illustrates how the Iqbal analysis should be carried out.
In what must have been a very high-profile situation in Baltimore, a dispute between the mayor and the police commissioner ended with the mayor’s firing the commissioner and two of his deputies. The commissioner sued the mayor in state court, claiming that his termination was wrongful. The Maryland Court of Appeals eventually ruled in the commissioner’s favor. Meanwhile, all three deposed public servants sued in federal court, asserting various civil-rights claims.
The district court, applying the holding in Twombly (Iqbal hadn’t been decided yet), analyzed the complaint and decided that it failed to state a plausible claim in three of the four counts, and that the defendants were entitled to qualified immunity in the fourth. It dismissed the case with prejudice.
The Fourth affirms. Three and a half pages of the slip opinion (starting at the top of page 7) are mandatory, required reading for civil practitioners in federal courts. That passage sets forth the appellate court’s views on how district courts are to view complaints in the context of 12(b)(6) motions. Trust me; in the wake of Iqbal, such motions will become the norm in federal pleading. I have heard one commentator suggest that a defense lawyer who eschews a motion to dismiss and goes straight to an answer may be committing malpractice.
I won’t go that far, but it is abundantly clear that such motions are going to explode in popularity. Indeed, they already have; one of the presentations I heard at the Appellate Summit in Orlando was from Dean Erwin Chemerinsky of the Cal Irvine Law School. In it, he said that Iqbal had already been cited in district court decisions over 5,000 times. Folks, the decision is less than seven months old! According to Dean Chemerinsky, it will soon become the most-cited US Supreme Court decision in our entire body of jurisprudence.
The court then goes on to apply the rules of the game to the plaintiffs’ claims, and it ends up agreeing with the district court; the dismissal is affirmed. But there is a postscript, with a vital practice tip – maybe I should call it a malpractice-prevention tip – for plaintiffs’ lawyers. In their brief, the plaintiffs asked the appellate court, in the event it affirmed the dismissal, to grant them leave to file amended pleadings. After all, Iqbal doesn’t say that you only get one shot at pleading; and “the court should freely give leave when justice so requires.”
This, as far as it goes, is good, solid lawyering. I spoke in July at a CLE presented by the Tidewater chapter of the Federal Bar Association, and in that talk, I urged plaintiffs to affirmatively seek leave to amend; district courts don’t have to give it to you sua sponte. But the plaintiffs left off one vital component: They never tendered a draft of the proposed amended complaint. The Maryland district court’s local rules require that a draft amendment be submitted along with a motion for leave, and these plaintiffs never did that. The Fourth’s decision concludes with this angle: “[W]e conclude that the district court did not abuse its discretion in failing to give the plaintiffs a blank authorization to ‘do over’ their complaint.”
Whether you practice in Maryland or Virginia, this advice should be burned into your trial notebook, if not your memory: Hand up a proposed amendment; don’t just make a plain-vanilla request for a carte blanche leave to amend. If the need to amend arises unexpectedly in a hearing, at least ask the trial court for leave to file a proposed amended pleading within ten days.
One last prognostication: As regularly as Iqbal is cited elsewhere, Francis will be cited here in the Fourth.