Just when you thought it was safe to go back in the courtroom, word comes from BNA's U.S. Law Week that the plaintiffs' bar is supporting a new bill by New York Democrat Jerry Nadler (H.R. 4115) that not only would reverse Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), but would write Conley v. Gibson, 355 US. 41 (1957) into law and thereby reverse a number of statutes -- including, presumably, the Private Securities Litigation Reform Act -- that have self-contained pleading standards. See 78 U.S.L.W. 2304.
HR 4115 -- the so-called "Open Access to Courts Act of 2009" -- has been referred to the House Committee on the Judiciary, which is set to take quick action on it. John Conyers, the Committee chair, is a co-sponsor of the bill. The bill provides:
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.
This bill, if passed, would fundamentally alter the burden of pleading (and, presumably, proof) so that the plaintiff apparently would no longer bear the burden of establishing his or her own entitlement to be in federal court. Even where his or her pleading was obviously factually deficient -- in that it failed to plead facts supporting the basic elements of the legal claim -- the court would be forced to hypothesize if there might be some factual scenario that could support the cause of action and, if so, the court would be forced to keep the case and allow it to proceed to costly and burdensome discovery, even if such facts did not exist or were not ultimately true.
What is particularly troubling is the sneaky way in which the bill seeks to override all prior legislation that imposed special requirements on suit -- such as the PSLRA -- by making this new pleading rule apply across the board, except where subsequently preempted by statute.
No doubt there will be hearings conducted on H.R. 4115 and its potentially disastrous effects on the civil justice system in short order. Let's hope the witness lists are more balanced than the last hearings conducted by the Senate on Senator Specter's draft bill.