Specificity or Dismissal: The Improper Extension of Rule 9(b) to Negligent Misrepresentation as a Deprivation of Plaintiffs' Procedural Due Process Rights

INTRODUCTIONFederal Rules of Civil Procedure (FRCP) Rule 9(b),1 applicable to claims of or sets too high a pleading standard for plaintiffs to meet when extended to negligent misrepresentation claims. Rule 9(b), or pleading,2 for this line of claims may constitute a deprivation of a plaintiffs due process rights under the Fourteenth Amendment. The information necessary to satisfy the standardthe circumstances underlying the claim, including the who, what, where, when, and how-may be impossible to obtain at the outset of a case. In the event that the court dismisses the complaint, the application of the Rule might prevent a recourse for which the substantive law allows. When justifications for heightened pleading are not fairly balanced with the burden on the plaintiff, as is the case for negligent misrepresentation claims, courts should reject the application of the Rule in lieu of Rule 8 pleading.3 Courts' extension of heightened pleading requirements to non-fraudbased claims is contrary to both the purpose of the FRCP-allowing for liberal pleading and the perseverance of claims4-and to due process of law under the Fifth and Fourteenth Amendments. Negligent misrepresentation is not fraud-based, and it differs essentially from the tort of fraud.This Note examines the current federal circuit court split on the application of Rule 9(b) to negligent misrepresentation claims, the inconsistency with which the Rule is applied, and the lack of clarity on the tort of negligent misrepresentation, all combined to constitute a deprivation of procedural due process rights for claimants of the tort. Part I establishes the federal pleading rules, noting the difference between ordinary pleading and heightened pleading and the implications of Bell Atlantic Corp. v. Twombly5 and Ashcroft v. Iqbal6 Part I also addresses the ordinary procedures following a pleading the court or a defendant finds unsatisfactory. Part II reviews the tort of negligent misrepresentation as compared to the tort of fraudulent misrepresentation, including the history of the tort, important court decisions in its formation, and the unique elements of the torts. Part III conducts an analysis of the current circuit court split regarding the applicable pleading requirement. Part IV refutes the traditional justifications for heightened pleading when applied to negligent misrepresentation claims. Part V introduces these arguments in a Fifth Amendment procedural due process framework, analogizing plaintiffs' situation to that of pro se litigants. Part VI revisits the difficulties plaintiffs have faced when pleading negligent misrepresentation under the requirements of Rule 9(b), considering the unique elements of the tort and the common conflation of the Rule. Part VII notes that judicial discretion in granting leave to amend plaintiffs' complaints is insufficient to protect the critical procedural due process rights at stake. Part VIII discusses a dangerous future for plaintiffs due to the historical extension of Rule 9(b) to non-fraudbased claims and the increasing strictness in the application of the Rule itself, calling for limitation of the Rule.I. PLEADING RULESA. Notice Pleading vs. Heightened PleadingFRCP Rule 8(a)(2) is the standard pleading requirement known as notice pleading, governing the majority of civil law claims.7 Rule 8 provides, in part:(a) Claim for Relief A pleading that states a claim for relief must contain:(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.8Rule 9(b) requires heightened pleading for claims of fraud or mistake, stating, Fraud or Mistake; Conditions of Mind. …