Wednesday, July 14, 2010

Iqbal and Twombly Plausibility Pleading Standard Rejected by State Supreme Court

The Washington State Supreme Court in an en banc unanimous opinion issued on June 24, 2010, in McCurry v. Chevy Chase, 2010 Wash. LEXIS 534 (Wash. June 24, 2010), refused to adopt the Supreme Court’s plausibility pleading standard set forth in its Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, __ U.S. __, 129 S. Ct. 1937 (2009) decisions.  In doing so, it stated as follows:
“The new Fed. R. Civ. P. 12(b)(6) standard [under Twombly and Iqbal] effectively reads ‘plausible’ into the rule, as follows: ‘failure to state a [plausible] claim upon which relief can be granted.’  This adds a determination of the likelihood of success on the merits, so that a trial judge can dismiss a claim, even where the law does provide a remedy for the conduct alleged by the plaintiff, if that judge does not believe it is plausible the claim will ultimately succeed.

The Supreme Court's plausibility standard is predicated on policy determinations specific to the federal courts. . . .  Neither party has shown these policy determinations hold sufficiently true in the Washington trial courts to warrant such a drastic change in court procedure.
Nor has either party here addressed countervailing policy considerations. . . .

Currently this court lacks the type of facts and figures (specific to the Washington trial courts) that were presented to, and persuaded, the United States Supreme Court to alter its interpretation of Fed. R. Civ. P. 12(b)(6). . . .

Even if such facts and figures had been presented, this court would be hesitant to effectively rewrite [Washington Civil Rule] 12(b)(6) based on policy considerations.  The appropriate forum for revising the Washington rules is the rule-making process.  This process permits policy considerations to be raised, studied, and argued in the legal community and the community at large.”

Thanks to the Constitutional Law Prof Blog for calling this interesting and important decision to our attention.

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