Suja A. Thomas (University of Cincinnati College of Law) has posted Why the Motion to Dismiss is Now Unconstitutional on SSRN. Here is the abstract:
This Article is the first to address the issue of the constitutionality of the motion to dismiss. Until now, motions to dismiss have not been the subject of much academic commentary, in part because courts have rarely dismissed cases upon motions to dismiss. However, decisions by the Court this past term in Bell Atlantic Corp. v. Twombly and Tellabs, Inc. v. Makor Issues & Rights, Ltd. changed the civil procedure landscape tremendously. In these decisions, the Court “retire[d]” the fifty-year-old rule of Conley v. Gibson under which a complaint could be not dismissed unless there was “no set of facts” upon which relief could be granted. The Court cast this rule away in favor of a standard under which courts critically assess whether the claim is plausible and at times, examine inferences that favor both the plaintiff and the defendant. In doing so, the Court emphasized the concern that companies should not be subject to discovery and forced settlements in unmeritorious cases and also stressed that Congress and the rule-makers possessed the authority to establish pleading procedures. Under the new standards, courts will dismiss cases much more often using the motion to dismiss. This impending phenomenon of increased dismissals by judges before the fact-finder hears any evidence is noteworthy. It will compound a significant decline in the number of jury trials due to dismissals upon summary judgment. This is especially troublesome in the presence of the Seventh Amendment that, by its text and history, strongly protects the right to a jury trial. Under established Supreme Court case law interpreting the Seventh Amendment, the “common law” governs the power of constitutional actors such as the courts and Congress to interfere with the jury trial. Under this case law, a modern procedure must satisfy the substance of the English common law jury trial in 1791 to be constitutional under the Seventh Amendment. This Article argues that Twombly and Tellabs significantly altered the Supreme Court jurisprudence on the Seventh Amendment. In Twombly, albeit not raised, the Court failed to recognize the important Seventh Amendment issue that overlay its decision despite the significant effect of the decision on the right to a jury trial. In Tellabs, where it did recognize a Seventh Amendment question, the Court ignored the governing common law. These cases open up a new constitutional discussion that tests the limits of the Seventh Amendment. The Article shows that the new motion to dismiss standards do not adequately comport with the substance of the common law jury trial and thus are unconstitutional. Contrary to the common law, these standards permit courts to improperly assess the plausibility of facts and corresponding inferences pled by plaintiffs and weigh those inferences against inferences that favor defendants. The Article concludes that while Twombly and Tellabs were in the limited areas of antitrust and securities fraud, the standards set forth in those cases will be used to dismiss a variety of fact-intensive cases including those frequently dismissed upon summary judgment such as employment discrimination and other civil rights cases.
And a bit more from the text:
While the motion to dismiss under Conley and the demurrer to the pleadings share significant characteristics, this analysis changes when a comparison is made between the new motion to dismiss standard under Twombly and Tellabs and the demurrer to the pleadings. The new motion to dismiss adds the requirement that the plaintiff must plead a plausible claim, and in some circumstances permits a court to examine inferences that favor the plaintiff and the defendant.118
Under these standards, the court does not simply accept the facts and corresponding inferences alleged by the plaintiff as true, as was required under the common law demurrer to the pleading. Instead, the court examines the facts and decides the plausibility of the inferences that favor the plaintiff and in some circumstances the plausibility of the inferences that favor defendant. Neither analysis was permitted under the common law. A court simply accepted the facts pled by the plaintiff and any inference in support of the plaintiff’s claim was accepted, however improbable any such inferences might be.119
Another important & well-argued piece from Thomas. Highly recommended!