Thursday, November 24, 2005

Seventh Circuit Affirms Notice Pleading

The Seventh Circuit in Doe v. Smith, --- F.3d ----, 2005 WL 3099687 (7th Cir. Nov. 21, 2005), per Judge Easterbrook, has rejected a lower court's effort to impose heightened pleading requirements in a federal wiretapping case. The case involves allegations of videotaping an intimate encounter without the permission or knowledge of one of the participants and distributing the resulting recording. The district court dismissed the complaint because it did not plead that the defendant had "intercepted" anything as required under the federal wiretapping statute, 18 U.S.C. §§ 2510-22:

The complaint does not maintain that Smith “intercepted” anything. Yet pleadings in federal court need not allege facts corresponding to each “element” of a statute. It is enough to state a claim for relief-and Fed.R.Civ.P. 8 departs from the old code-pleading practice by enabling plaintiffs to dispense with the need to identify, and plead specifically to, each ingredient of a sound legal theory. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); McDonald v. Household International, Inc., No. 04-3259 (7th Cir. Sept. 29, 2005); Bartholet v. Reishauer A.G. (Zürich), 953 F.2d 1073 (7th Cir.1992). Plaintiffs need not plead facts; they need not plead law; they plead claims for relief. Usually they need do no more than narrate a grievance simply and directly, so that the defendant knows what he has been accused of. Doe has done that; it is easy to tell what she is complaining about. Any district judge (for that matter, any defendant) tempted to write “this complaint is deficient because it does not contain···” should stop and think: What rule of law requires a complaint to contain that allegation? Rule 9(b) has a short list of things that plaintiffs must plead with particularity, but “interception” is not on that list.

Complaints initiate the litigation but need not cover everything necessary for the plaintiff to win; factual details and legal arguments come later. A complaint suffices if any facts consistent with its allegations, and showing entitlement to prevail, could be established by affidavit or testimony at a trial. See, e.g., Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The consistency proviso is why some complaints may be dismissed pronto: litigants may plead themselves out of court by alleging facts that defeat recovery. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir.2002). Complaints also may be dismissed when they show that the defendant did no wrong. For example, a complaint alleging that a sports team violated the antitrust laws by restricting peanut sales on the stadium's grounds is defective because the antitrust laws do not entitle one person to sell goods on someone else's property. See Elliott v. United Center, 126 F.3d 1003 (7th Cir.1997). Doe has not pleaded herself out of court; none of the complaint's allegations shows that Smith is sure to succeed. The complaint does not say, for example, that she consented to the recording. Doe will have to prove some facts that she did not plead, but that's common.


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