• Third Circuit Applies Twombly Notice Pleading Principles to Fourteenth Amendment Claims Brought Under 42 U.S.C. Section 1983
  • December 21, 2009 | Author: Alan E. Johnson
  • Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - Pittsburgh Office
  • In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the United States Supreme Court redefined federal notice pleading. During the last many decades, federal courts had been guided by Conley v. Gibson, 355 U.S. 41 (1957). Much of Conley is, of course, sound doctrine and was retained by the Twombly Court. But Conley went beyond what was necessary to decide that case when it expressed the notion that "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." After an intensive analysis of this language, the Twombly Court discarded it, holding that "after puzzling the profession for 50 years, this famous observation has earned its retirement."

    Although the language "showing that the pleader is entitled to relief" in Fed. R. Civ. P. 8(a)(2) was often neglected in the post-Conley cases, the Twombly Court also held that this language is significant and must be followed:

    While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations [citations omitted], a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts 'are not bound to accept as true a legal conclusion couched as a factual allegation'). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter Wright & Miller) ('The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action').

    Twombly was an anti-trust case, and a big question arose in its immediate aftermath whether its foregoing holdings on notice pleading would be applied outside of an anti-trust context. In Phillips v. County of Allegheny, 515 F.3d 224, 232-33 (3d Cir. 2008), the Third Circuit Court of Appeals recently answered that question for the Third Circuit by holding that these notice pleading principles of Twombly are not limited to the anti-trust context of that case but are rather "intended to apply to the Rule 12(b)(6) standard in general." Of course, "[i]t remains an acceptable statement of the standard . . . that courts 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'"

    The Phillips opinion also addressed the discussion in Twombly regarding plausibility. "Numerous references to 'plausibility' in Twombly seem to counsel reliance on the concept as a standard for notice pleading. The Court explained that a plaintiff must 'nudge [his or her] claims across the line from conceivable to plausible' in order to survive a motion to dismiss." The Third Circuit "decline[d] at this point to read Twombly so narrowly as to limit its holding on plausibility to the antitrust context." The Third Circuit related the Twombly "plausibility" requirement to the Rule 8 concept of a "showing": "the '[f]actual allegations must be enough to raise a right to relief above the speculative level.'"

    The Phillips opinion also cited earlier Third Circuit case law to the effect that "if a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." This holding continues the Third Circuit's long-established liberality in allowing a plaintiff to replead-a liberality not shared by all other circuits.

    Phillips applied the Twombly notice pleading principles in the context of an appeal of a Fed. R. Civ. P. 12(b)(6) dismissal of Fourteenth Amendment substantive due process and equal protection claims brought under 42 U.S.C. § 1983. The complaint in Phillips was brought by the Administratrix of the Estate of Mark Phillips ("Phillips"). The complaint alleged that Phillips, his new girlfriend Gretchen Ferderbar, and Gretchen Ferderbar's sister were shot and killed by Michael Michalski ("Michalski"), who had previously been Gretchen Ferderbar's boyfriend. Michalski had been employed as a dispatcher at Northwest Regional Communications, a nonprofit corporation established by several suburban communities to handle their emergency dispatch services. When he was a dispatcher, Michalski allegedly accessed computer records in an effort to locate the current location of Mark Phillips and Gretchen Ferderbar. However, Michalski's employment with Northwest Regional Communications was suspended and then terminated when supervisory personnel discovered that Michalski had accessed computer records for a private purpose. Shortly after his termination, Michalski went to Gretchen Ferderbar's residence, found her and Mark Phillips there, and shot and killed them, as well as Gretchen Ferderbar's sister. Michalski was thereafter prosecuted, sentenced, and incarcerated for these crimes.

    The Administratrix of Phillips' estate brought this action against Northwest Regional Communications, certain employees of Northwest Regional Communications, and Allegheny County (which later took over Northwest Regional Communications' operations) under 42 U.S.C. § 1983 and state wrongful death and survival claims. The plaintiff alleged that the defendants violated the substantive component of the Fourteenth Amendment Due Process Clause under a state-created danger theory. In its opinion and amended judgment, the Third Circuit panel applied Twombly notice pleading principles in holding that the complaint failed to state a constitutionally cognizable state-created danger claim against Northwest Regional Communications and some of the individual defendants. However, the Court of Appeals held that the complaint did state a state-created danger claim against two of the individual defendants, whom the complaint alleged assisted Michalski in locating Phillips and Gretchen Ferderbar. In discussing the plaintiff's "class of one" equal protection claim, the Third Circuit relied on the analysis of Demuria v. Hawkes, 328 F.3d 704 (2d Cir. 2003) in holding that a complaint must allege that the plaintiff (or, in this case, the plaintiff's decedent) was treated differently from other individuals but need not name the alleged comparables or identify their specific fact situations. One could argue that Demuria is inconsistent, in the latter respect, with the later notice pleading principles articulated in Twombly, but Phillips has now expressly incorporated the Second Circuit's Demuria analysis, and the issue is thus moot in the Third Circuit.

    As of this writing, the Phillips case is on remand in the United States District Court for the Western District of Pennsylvania. The plaintiff filed an amended complaint, and a motion for partial dismissal of the amended complaint was recently granted with regard to some of the claims in the amended complaint. The discovery phase of the litigation will now commence, followed, in all probability, by a motion for summary judgment on the remaining claims.