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Plausibility Is the New Black: The 1st Circuit Clarifies

Courts are creatures of habit. They like to stick to precedent, and have a hard time changing course. Last week, the First Circuit had to give the district courts in the circuit some guidance on the new "plausibility" standards in federal civil pleadings.

The Historic Conley Standard

From 1957 to 2007, the historic pleading standard under the Federal Rules of Civil Procedure ("FRCP") espoused by the Supreme Court in Conley v. Gibson, was one of "notice pleading." To meet the standards set forth in FRCP 8, the pleadings must give "fair notice of its basis."

The Iqbal-Twombly Plausibility Standard

Notice pleading was the name of the game until 2007, when the Supreme Court decided Bell Atlantic Corp. v. Twombly, and two-years later in Ashcroft v. Iqbal. In those "watershed cases," the Supreme Court replaced the Conley notice pleading standard, with one that rests on plausibility. The new plausibility standard in Iqbal "obliges a pleader to amplify a claim with some factual allegations in those contexts where such amplification is needed to render the claim plausible."

The Standard as Applied

Here, plaintiff filed a claim against the Government for negligence, under the Federal Tort Claims Act, after a slip and fall accident in a military commissary. After viewing her "complaint holistically," the court found that because her pleadings were modeled on Form 11 of the FRCP Appendix, she had pleaded sufficiently. Furthermore, where the defendant was in control of material information related to the claim, the plaintiff can be given "some latitude" before the "benefit of discovery."

Note to the Lower Courts

While courts are known for moving at a snail's pace, the First Circuit is essentially telling the district courts to get up to speed on the new plausibility pleadings standard. In doing so, the First Circuit was clear in differentiating the different evidentiary standards that come into play at trial, and at summary judgment, will not be appropriate at the pleadings stage.

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