PRESERVING THE RIGHT TO TRIAL BY JURY VIA NOTICE PLEADING:
THE NEW MEXICO COURT OF APPEALS SHUTS THE DOOR ON TWOMBLY/IQBAL
By Mike Sievers
Third-year law student, UNM
606 Girard Blvd. NE
Albuquerque, NM 87106
[email protected]
505-459-2928
INTRODUCTION
In May 2012, the New Mexico Court of Appeals reaffirmed the state’s commitment to
the right to trial by jury with its decision in Madrid v. Village of Chama.1 In a few short
paragraphs, the court rejected the heightened standard of pleading that has been adopted at the
federal level, assuring that plaintiffs in state court maintain the ability to get past the initial stage
of a civil lawsuit through simple notice pleading.2 The court in Madrid declined the defendant’s
invitation to embrace Twombly/Iqbal,3 the duo of cases in which the U.S. Supreme Court created
a daunting new hurdle for plaintiffs seeking their day in court.4
Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint is sufficient to
overcome a motion to dismiss if it includes a “short and plain statement of the claim showing
that the pleader is entitled to relief.”5 For many years, that rule had been construed to mean that
1
Madrid v. Village of Chama, 2012-NMCA-071, 283 P.3d 871, cert. denied, No. 33,651, 2012 N.M. LEXIS 196
(June 29, 2012).
2
See id. ¶¶ 16-17.
3
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
4
See Twombly, 550 U.S. at 556-57; Iqbal, 556 U.S. 678-79. The Court’s decisions in Twombly/Iqbal marked a new
era in which a civil complaint, to survive a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), must set out
sufficient facts giving rise to a “plausible” claim for relief.
5
FED. R. CIV. P. 8(a)(2).
“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt
that the plaintiff can prove no set of facts in support of his claim which would entitle him to
relief.”6 In contrast, Twombly/Iqbal mandates that a complaint must be sufficiently detailed to
“nudge” the claim “across the line from conceivable to plausible.”7 This new federal pleading
standard is contrary to the plain meaning of the Federal Rules of Civil Procedure, and it serves to
deprive injured people of their constitutional rights by stripping the jury of its fact-finding role
and passing that role on to judges.8 The New Mexico Court of Appeals has decided to steer clear
of that path in its interpretation of an identical rule.
I. TWOMBLY/IQBAL: THE U.S. SUPREME COURT GIVES A
GHASTLY MAKEOVER TO RULE 8
The U.S. Supreme Court took it upon itself to change the meaning of Rule 8(a)(2) when it
handed down its decisions in Twombly and Iqbal, and it did so without submitting the change to
Congress as would be required if the Court were actually to rewrite the rule.9 The rule makes no
mention of factual content.10 After Twombly/Iqbal, however, a party must include in a complaint
“sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.”11 “Plausibility” means that the complaint includes facts enabling the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”12
6
Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
7
Twombly, 550 U.S. at 570.
8
See infra Part II.
9
See 28 U.S.C. § 2074 (requiring the Court to submit proposed rules to Congress). Additionally, if the
Twombly/Iqbal standard infringes on the right to trial by jury, as I believe it does, then the decisions violate 28
U.S.C. § 2072, which states that rules proposed by the Court “shall not abridge...any substantive right.”
10
See FED. R. CIV. P. 8(a)(2)..
11
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570) (quotation marks omitted)).
2
The Twombly/Iqbal standard usurps the role of juries, thereby depriving injured people of
their day in court. Iqbal itself illustrates the problem with this elevated standard of pleading. The
plaintiff, a Pakistani citizen who was arrested and detained in the wake of the September 11,
2001 terrorist attacks, sued a number of high-ranking federal officials, alleging invidious
discrimination.13 Specifically, his complaint alleged the existence of an “unconstitutional policy
that subjected respondent to harsh conditions of confinement on account of his race, religion, or
national origin.”14 Iqbal’s complaint survived a motion to dismiss as the district court concluded
that the complaint comported with the “no set of facts” standard announced by the Court in
1957.15 The Supreme Court had other ideas. Following the recently announced Twombly
approach, the Court wrote that certain allegations were “not entitled to the assumption of truth,”
namely, the allegation that “petitioners ‘knew of, condoned, and willfully and maliciously agreed
to subject [him]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of
[his] religion, race, and/or national origin and for no legitimate penological interest.’”16 The
Court held the allegation was too conclusory to state a plausible claim.17 The Court went on to
examine more detailed factual allegations but held that they did not state a claim for relief
because “more likely explanations” existed than the discriminatory purpose alleged in the
12
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
13
Iqbal, 556 U.S. at 666.
14
Id.
15
See id. (noting that the district court relied on Conley, 355 U.S. 41 in holding that “it cannot be said that there [is]
no set of facts on which [respondent] would be entitled to relief as against petitioners” (internal quotation marks
omitted)).
16
Iqbal, 556 U.S. at 680.
17
Id. at 681.
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complaint.18 The problem with this approach is that it gives individual judges too much power to
decide whether a lawsuit should proceed. While Justice Kennedy and four other justices believed
Iqbal’s complaint was implausible, any other judge might reach the opposite conclusion given
the exact same complaint. Moreover, the requirement that a complaint allege sufficient “facts” to
state a “plausible” claim shuts the door on meritorious cases in which the plaintiff has no means
to uncover those “facts” but to obtain them through formal discovery. How would a person like
Iqbal possibly have access to the type of factual material that would prove high-ranking federal
officials engaged in a conspiracy to unconstitutionally discriminate against Muslim men? If that
person has no shot at discovery, then that person cannot obtain access to that information. And if
that conspiracy really exists, justice is not served. The only people who should be responsible
for determining the plausibility of a claim are the members of juries. Twombly/Iqbal takes judges
out of their role of deciding legal issues and places them into the position of a fact finder. The
language in the Rules of Civil Procedure does not justify such a result.
II. NEW MEXICO REMAINS A NOTICE-PLEADING STATE
Like the Seventh Amendment to the U.S. Constitution, article II, section 12 of the New
Mexico Constitution ensures the right to trial by jury, with the added guarantee that this right
“shall be secured to all and remain inviolate.”19 To that end, New Mexico courts have ensured
that juries, rather than judges, evaluate the merits of a claim. New Mexico is a notice-pleading
state in which the purpose of a complaint is simply “to put the defendant on notice of his
claims.”20 The New Mexico Court of Appeals saw no reason to deviate from this tradition in
18
Id.
19
See U.S. CONST. AMEND. VII; N.M. CONST. ART. II, § 12.
20
See Madrid, 2012-NMCA-071, ¶ 17 (citing Rule 1-008(A) NMRA; Schmitz v. Smentowski, 109 N.M. 386, 389-
90, 785 P.2d 726, 729-30 (1990)).
4
Chama, writing that the U.S. Supreme Court’s decisions in Twombly and Iqbal result in a
requirement of unnecessarily technical forms of pleading.21 The court of appeals noted that “[t]he
plausibility standard created by the two U.S. Supreme Court cases adds a determination of
likelihood of success on the merits so that a trial judge can dismiss a claim, even where the law
does provide a remedy, if that judge does not believe it is plausible the claim will succeed.”22
The court thus rejected the elevated standard of pleading announced in Twombly/Iqbal.23
CONCLUSION
Imagine that a multi-national corporation conspired with its local subsidiary to
circumvent environmental regulations and dump toxic waste in such a way that the toxins seep
into the groundwater, poisoning the residents of a New Mexico village. The extra profits that
result from breaking the rules go directly back to the multinational parent corporation. If the state
courts adopted the Twombly/Iqbal approach to pleading, those residents may never have any
recourse against the corporation that is reaping the benefit of the dumping. Without the tools of
discovery, the poisoned villagers are left trying to convince a judge about the plausibility of a
conspiracy with no evidence to support their claim. Under New Mexico’s standard of pleading,
they can move on to discovery as long as their claim is legally sufficient. 24 The latter approach is
the only one that can consistently promote justice. The New Mexico Court of Appeals had the
right idea in declining to adopt Twombly/Iqbal, and the courts should continue to ensure that the
right to trial by jury remains inviolate by leaving the notice-pleading standard fully intact.
21
See id.
22
Id. (emphasis added).
23
See id.
24
See Wallis v. Smith, 2001-NMCA-017, ¶ 6, 130 N.M. 214, 22 P.3d 682.
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