Tuesday, September 21, 2010

Judge Shepherd Brings Rationality and Proportion to Iqbal Debate!


Dedicated readers have long known I have a "flatbread/hatebread" relationship with Iqbal, which in my mind upset decades of perfectly good precedent, notice pleading, Conley, you know all that stuff you learned in civ pro, and substituted an amorphous, heavily discretionary "roll the dice" element to 12(b) motion practice.

(On the plus side, banks seem to dig it!)

That's why I nearly flipped my lid when an alert reader forwarded me this fabulous opinion by a panel that included Judge Shepherd applying Iqbal to allegations regarding a recurrent common law issue -- whether someone is an employee or independent contractor.

Indeed, at this point I was quite certain all the various mental constructs that have allowed to me to compartmentalize a host of thoughts, feelings, memories, and random bits of useless knowledge all had simply broken down, leaving a raging river of jumbled inchoate images -- repeated viewings of Hogan's Heroes, the starting roster of the 73 Dolphins, where to get a decent egg cream in NYC, the final chord to "Day in a Life," how to prepare a statement of material facts not in dispute, Demi Moore crashing the wedding in No Small Affair, that great first line from Kafka's The Trial ("Someone must have slandered Josef K., for one morning, without having done anything truly wrong, he was arrested."), that tentative first kiss behind the shed during P.E.

But then I noticed it was a different Judge Shepherd (actually, it's the 8th Circuit), and the mental walls and dams went back up and everything sort of slowly faded back to "normal."

Still, I love the simple reasoning and logic of the opinion -- if the form negligence complaint appended to the Rules "suffice" as per Rule 84, then the allegations therein must suffice under Rule 8(a)(2):
We conclude that, to answer this question, we need look no further than Rule 84 of the Federal Rules of Civil Procedure, which provides, "The forms in the Appendix [to the Rules] suffice under these rules. . . ." The rules referred to obviously include Rule 8(a)(2). The Appendix includes Forms 11-13, which set forth prototypes of various negligence complaints. Form 13, entitled "Complaint for Negligence Under the Federal Employers' Liability Act," includes the following allegation: "4. During this work, the defendant, as the employer, negligently put the plaintiff to work. . . ." (Emphasis added.) The district court considered Form 13 irrelevant because it applies to F.E.L.A. claims by railroad workers. But that overlooks Form 13's broader significance. As incorporated by Rule 84, Form 13 makes clear that an allegation in any negligence claim that the defendant acted as plaintiff's "employer" satisfies Rule 8(a)(2)'s notice pleading requirement for this element. Here, consistent with Form 13, Hamilton alleged that he was "employed" by the Palms. Rule 84 and Form 13 may only be amended "by the process of amending the Federal Rules, and not by judicial interpretation." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002) (quotation omitted), distinguished in Twombly, 550 U.S. at 569-70. Therefore, the district court erred in concluding that Hamilton's allegation of employee status, however facially conclusory it might appear to be in the abstract, failed to satisfy Rule 8(a)(2).
Ha ha, your move Justice Roberts!


Anonymous said...

Brilliant. Take a long victory lap.

Anonymous said...