Trisha Chokshi

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Historically, courts have been a place where individuals could obtain justice and relief for their grievances. Ordinary people have used courts to desegregate schools, protect the environment, punish corporate misconduct, and preserve fundamental liberties. Citizen access to federal courts, however, has become much more difficult in recent years in the wake of two Supreme Court decisions: Bell Atlantic Corp. v. Twombly in 2001 and Ashcroft v. Iqbal in 2009, which raised the pleading standard a plaintiff must satisfy before her case can go to court. In civil litigation, a pleading serves as an individual’s key to the courthouse door. The pleading itself explains how the defendant harmed the plaintiff and what remedies the plaintiff seeks from the court. Rule 8 of the Federal Rules of Civil Procedure lays out the minimum requirements for pleading federal civil cases. Prior to Twombly and Iqbal, courts interpreted Rule 8 to require a plaintiff to allege a relatively basic set of facts that explained how the plaintiff was harmed and how the defendant violated the plaintiff’s rights. The pleading is followed by discovery, a fact-finding process that prepares parties for trial or settlement in the matter at issue. Under the new standard, referred to as “plausibility pleading,” plaintiffs must plead some facts to demonstrate that their claim is plausible on its face. The heightened pleading standard has made it much more difficult for plaintiffs to have their claims heard in court because they do not, at such an early stage in the proceeding, have access to the necessary factual information in the defendant’s possession. As such, the new standard places a nearly impossible burden on plaintiffs, making it harder for them to get beyond the pleading stage in civil litigation. As a result, claims with merit can often be dismissed since plaintiffs are required to prove factual allegations before having an opportunity to gather evidence, thus allowing defendants, often corporations and other large entities, to evade judicial review. By examining a recent Seventh Circuit decision, Swanson v. Citibank, this Note illustrates the substantial difficulty that lower court judges now face when they interpret pleadings in federal courts. While the majority opinion in Swanson interprets Twombly and Iqbal as consistent with Rule 8 and allows the plaintiff’s claim to proceed, the split among the circuit court judges illustrates the inherent difficulty in assessing how the new plausibility standard is to be applied and how high the Supreme Court meant to place the bar when it established a higher pleading standard. The Seventh Circuit missed the opportunity to remedy the ambiguity in the new standard, which, in fact, is not consistent with Rule 8 and notice pleading principles at all. Instead, the Seventh Circuit has adopted a context-specific approach that requires district courts to apply a sliding scale to the alleged facts. This will inevitably lead to a greater burden on plaintiffs, who now must provide enough factual detail from which legal conclusions could plausibly flow. Part II discusses the relevant background necessary to understand the Seventh Circuit’s decision in Swanson v. Citibank. This background includes legal history of the common law and equity systems of pleading and the eventual drafting of the Federal Rules of Civil Procedure, particularly Rule 8. Part III tracks the development of the new plausibility standard by dissecting the Supreme Court’s opinion in Bell Atlantic Corp. v Twombly and Ashcroft v. Iqbal. Part IV provides the factual detail of Swanson v. Citibank, N.A. This Note concludes (Part V) with an analysis of both prongs of the plausibility standard as articulated in the Swanson decision and discusses its implications on federal civil litigation in the circuit. It includes a discussion of how the policy rationale behind the plausibility pleading, primarily reducing “the scope for extortionate discovery,” is inconsistent with the notice pleading standards that the Seventh Circuit seems to suggest are still valid in federal courts.

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Northern Illinois University Law Review

Suggested Citation

Trisha Chokshi, Note, A Pleading Problem: Seventh Circuit Decision in Swanson v. Citibank Illustrates the Unstable State of Federal Pleading Standards in the Post-Iqbal Era, 32 N. Ill. U. L. Rev. 103 (2011).

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