So I've previously blogged about the potential (and by now actual) impact of the Supreme Court's recent Iqbal decision on the notice pleading standards for purposes of Fed. R. Civ. P. 12(b)(6). See this post.
The Senate Judiciary Committee is considering legislation sponsored by Senator Arlen Specter of Pennsylvania designed to return notice pleading back to what it was pre-Iqbal and pre-Bell Atlantic v. Twombly.
The Notice Pleading Restoration Act of 2009, S. 1504, states in its entirety:
Except as otherwise expressly provided by an Act of Congress or by an amendment to the Federal Rules of Civil Procedure which takes effect after the date of enactment of this Act, a Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson, 355 U.S. 41 (1957).
Congressional bills aren't often known for their brevity, but this one certainly is.
In his prepared remarks included in the Congressional Record, S.7890-91 (July 22, 2009) accompanying the introduction of the bill, Senator Specter remarked that "Not until a plaintiff has had access to relevant information in the defendant's possession during the discovery process that follows the filing of a complaint as a matter of right can the plaintiff normally offer evidence to support the complaint's allegations." That certainly sounds like a fishing expedition. One would think that, at least in most cases, a plaintiff would have some evidence supporting his own claims before rummaging through the defendant's files.
As Senator Specter continued, "When it passed the Rules Enabling Act, Congress established a carefully designed process for amending the Federal Rules of Civil Procedure. The process ends with the Supreme Court's presentation of a proposed rule change to Congress for approval. In Twombly and Ashcroft the Court effectively end ran that process."
A subcommittee of the House Judiciary Committee held a hearing yesterday afternoon on "Access to Justice Denied – Ashcroft v. Iqbal." It's not clear if Senator Specter's bill itself was considered, or just the issue of Iqbal more generally. In any event, the reverberations of Iqbal continue.
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