The Senate has confirmed Justice Sonia Sotomayor as the newest Justice on the United States Supreme Court. .jpg)
For me, as a Tennessee lawyer with a practice primarily in state court, it’s sometimes hard to connect the dots between what goes on in Washington and my practice in Middle Tennessee. But, developments in the Supreme Court impact the practice of law in state court and the claims of plaintiff’s with business cases, particularly business torts.
The Tennessee Court of Appeals has already stated that the U.S. Supreme Court’s decision in Bell Atlantic Corporation v. Twombly applying Rule 12(b)(6) on a motion to dismiss for failure to state a claim is consistent with Tennessee law. Hermosa Holdings, Inc. v. Mid Tennessee Bone and Joint Clinic. This should cause any Tennessee lawyer representing plaintiffs to take a renewed interest in the happenings on the Supreme Court.
In 2007, the Supreme Court issued its opinion in Twombly, authored by the now retired Justice David Souter. In Twombly, an anti-trust case, the court rejected the standard applicable to a motion to dismiss brought under Rule 12(b)(6) established in Conley v. Gibson. For 60 years, litigants in federal courts applied Conley to argue that a complaint could not be dismissed on a Rule 12 motion unless “it appears beyond doubt that that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” In Twombly, the Court changed the standard holding that a plaintiff must allege facts “plausibly suggesting” a right to relief. In a vigorous dissent, Justice Stevens wrote that the “plausibility standard is irreconcilable with Rule 8 and … governing precedents.”
Earlier this year, this time with Justice Souter in dissent, the Court held in Ashcroft v. Iqbal that “to survive a motion to dismiss, a complaint must contain factual matter, accepted as true, that states a claim for relief that is plausible on its face.” Simply put, under Iqbal, the plaintiff’s complaint must contain facts demonstrating more than the a sheer possibility that the defendant acted unlawfully.
Having authored the predecessor opinion in Twombly, Justice Souter characterized its application in Iqbal as unfair to the plaintiff. Justice Souter recognized that the majority’s application of Twombly seems to permit the court to weigh the veracity of the allegations in deciding whether to grant a motion to dismiss.
What? How did this happen? Such an interpretation represents a fundamental departure from practice under Rule 12 for the last 50 years. As Tennessee courts rely on decisions interpreting analogous Federal rules all the time, this application of Rule 12 will likely affect the application of Tennessee Rule of Civil Procedure 12.
Even if a business tort complaint is filed in state court, the plaintiff and his lawyer must be cognizant of Twombly and Iqbal in drafting the complaint. Decisions like these two will affect practice in state court. Justice Sotomayor replaces Justice Souter, obviously an important voice in applying the Rules of Civil Procedure. That’s why we all should care.
Image: roberthuffstutter
