Private: Judge Posner Questions Reach Of High Court Decisions On Civil Lawsuits

In a recent decision, Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit offered thoughts on the reach of Supreme Court rulings on standards for filing civil lawsuits. The high court has issued recent rulings, Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, which according to some makes it much easier for judges to quickly dismiss civil lawsuits. In its 2009 decision in Iqbal, the Supreme Court said judges must draw on their "judicial experience and common sense" when deciding whether a plaintiff's complaint advances a plausible claim for relief. Justice Ruth Bader Ginsburg, who dissented in the case, later said that the majority opinion "messed up the federal rules" on civil litigation.

In a case before the Seventh Circuit, Judge Posner included dicta (language not pertinent to the holding) that Twombly and Iqbal may be limited, only applying to complex or potentially expensive litigation.

Posner wrote:

In our initial thinking about the case, however, we were reluctant to endorse the district court's citation of the Supreme Court's decision in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), fast becoming the citation du jour in Rule 12(b)(6) cases, as authority for the dismissal of this suit. The Court held that in complex litigation (the case itself was an antitrust suit) the defendant is not to be put to the cost of pretrial discovery - a cost that in complex litigation can be so steep as to coerce a settlement on terms favorable to the plaintiff even when his claim is very weak - unless the complaint says enough about the case to permit an inference that it may well have real merit. The present case, however, is not complex.

But Bell Atlantic was extended, a week after we heard oral argument in the present case, in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) - over the dissent of Justice Souter, the author of the majority opinion in Bell Atlantic - to all cases, even a case (Iqbal itself) in which the court of appeals had ‘promise[d] petitioners minimally intrusive discovery.' Yet Iqbal is special in its own way, because the defendants had pleaded a defense of official immunity and the Court said the 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 vigorous performance of their duties.

So maybe neither Bell Atlantic nor Iqbal governs here. It doesn't matter. It is apparent from the complaint and the plaintiff's arguments, without reference to anything else, that his case has no merit.

Recently Sen. Arlen Specter introduced legislation to trump the high court's rulings in Twombly and Iqbal by requiring federal courts to follow traditional civil procedural rules on filing lawsuits.

Access to Justice, Class actions, Constitutional Interpretation, Supreme Court