King Arthur Confronts TwIqy Pleading

Rule 25 of the 1912 Equity Rules stated that "it shall be sufficient that a bill in equity shall contain ... a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence." Not mere conclusions, not evidence, but "ultimate facts." And, at that, not facts "constituting the cause of action." The bare words of Rule 25 could mean something quite different to a twenty-first-century audience than they meant to a twentieth-century audience. But they may serve as a foil to the challenge framed by the Supreme Court in Bell Atlantic Corp. v. Twombly' and Ashcroft v. Iqbal2 for the committees that advise the Judicial Conference, and thence the Court, on the Court's discharge of its responsibilities under the Rules Enabling Act.3 In those cases, the Court relied on an interpretation of Rule 8(a)(2) of the Federal Rules of Civil Procedure, which requires that a pleading stating a claim for relief contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Any response to the challenge of drafting a pleading must begin by determining whether there is any reason to respond at all by recommending revisions of Rule 8(a)(2) or any other Rule of Civil Procedure. The Court did not suggest any reason to reconsider Rule 8(a)(2). But the deluge of academic commentary stimulated by the Court's opinions reflects deep concern that the Court has set lower courts on a path that will lead to improvident dismissals for failure to state a claim upon which relief can be granted. Professor Arthur R. Miller's article, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure,4 is a masterful expression of these concerns.