9/11 Decision Impacts Notice Pleading Standard

          It has long been the practice in New Hampshire, whether in state or federal court, to file what is known as a ‘notice pleading complaint’. What this means is that as long as you have fairly put the defendant(s) on notice as to the gist of your claim(s) against them, that is sufficient to withstand early scrutiny so long as it states a cause of action. However, on May 19, 2009, the United States Supreme Court cut a huge swath out of notice pleading in federal court by its decision in Ashcroft v. Iqbal. The Supreme Court ruled that Iqbal, a Pakistani Muslim who was arrested after the Sept. 11 terrorist attacks, may not sue John Ashcroft, the former Attorney General, nor Robert S. Mueller III, the director of the Federal Bureau of Investigation, for abuses he said he suffered in a Brooklyn detention center.

          The 5-4 decision, written by Justice Anthony M. Kennedy, said the plaintiff’s lawsuit must be dismissed because he failed to allege a plausible link between the officials’ conduct and the abuses he said he had suffered. The federal rules only require a short and plain statement of the claim showing that the plaintiff is entitled to relief; the rules do not require detailed factual allegations. The Court noted that the rule does call for sufficient factual allegations to state “a claim to relief that is plausible on its face.” It is apparently based upon this language the Court found that for there to be “facial plausibility” there must be sufficient factual content alleged to allow the court to draw the reasonable inference that the defendant in question is liable for the misconduct alleged.

          The court opined that the only plausible suggestion Iqbal’s suit made against Ashcroft and Mueller was that they “sought to keep suspected terrorists in the most secure conditions available until the suspects could be cleared of terrorist activity” in the aftermath of a devastating terrorist attack. This, the majority opinion found, was insufficient to give rise to a plausible reference that the policy was based upon discriminatory factors.  They found that the complaint did not contain facts sufficient to make this plausibility leap and therefore the case should be dismissed or at least sent back  to the lower court to determine whether plaintiff should be allowed an opportunity to amend the deficient complaint.

          It is notable that the soon to be retired Justice Souter from New Hampshire wrote the dissent on behalf of the 4 minority votes. While this Supreme Court decision clearly impacts the level of specificity required to withstand challenge in a federal court complaint, the decision was based upon a specific federal rule so that it is unclear what effect this decision may have over time upon New Hampshire state court practice.