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In Congress, promoting the return of notice pleadings



Rep. Jerrold Nadler (D-NY) has introduced H.R. 4115, the Open Access to Courts Act of 2009, to restore notice pleadings, i.e., the status quo ante Twombly and Iqbal.

Nadler's news release announced the bill, "Nadler, Johnson, and Conyers Introduce Bill to Overturn Supreme Court Decision And Restore Access to Courts." The list of supporting organizations is an impressive roster of litigation-minded activists and grievance groups.

American Association for Justice had its news release teed up, "AAJ Calls on Congress to Restore Americans' Basic Legal Protections," which claims the Supreme Court decisions "irrationally raised the bar for Americans seeking justice in employment, discrimination, and other civil cases." Irrationally? A serious question: Why does AAJ think it advances its cause to insult people's intelligence?

In a July post, "Back to the bad old days on pleading?," Walter summarized what's at stake: "Make no mistake: the Supreme Court's recent rulings in Twombly and Iqbal offer the best hope in years for curtailing ill-founded litigation and reducing the scope of needless combat in what remains (by focusing and narrowing issues at an early stage and heading off discovery 'fishing expeditions')." For more, see these posts.

Sen. Arlen Specter (D-PA) had previously introduced S. 1504, the Notice Pleadings Restoration Act.

H.R. 4115 is a short bill, so we've put the entire text in the extended entry.


H. R. 4115
To amend title 28, United States Code, to provide a restoration of notice pleading in Federal courts, and for other purposes.


IN THE HOUSE OF REPRESENTATIVES

November 19, 2009
Mr. NADLER of New York (for himself, Mr. JOHNSON of Georgia, Mr. CONYERS, Mr. SCOTT of Virginia, Mr. DELAHUNT, Ms. JACKSON-LEE of Texas, Ms. CHU, Mr. MICHAUD, Ms. KILPATRICK of Michigan, and Mr. COHEN) introduced the following bill; which was referred to the Committee on the Judiciary

--------------------------------------------------------------------------------

A BILL
To amend title 28, United States Code, to provide a restoration of notice pleading in Federal courts, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

This Act may be cited as the `Open Access to Courts Act of 2009'.

SEC. 2. NOTICE PLEADING RESTORATION.

(a) In General- Chapter 131 of title 28, United States Code, is amended by adding at the end the following:

`Sec. 2078. Limitation on dismissal of complaints

`(a) A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.

`(b) The provisions of subsection (a) govern according to their terms except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section or by amendments made after such date to the Federal Rules of Civil Procedure pursuant to the procedures prescribed by the Judicial Conference under this chapter.'.

(b) Clerical Amendment- The table of sections at the beginning of chapter 131 of title 28, United States Code, is amended by adding at the end the following new item:

`2078. Limitation on dismissal of complaints.'.

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Isaac Gorodetski
Project Manager,
Center for Legal Policy at the
Manhattan Institute
igorodetski@manhattan-institute.org

Katherine Lazarski
Press Officer,
Manhattan Institute
klazarski@manhattan-institute.org

 

Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.