Wednesday, March 10, 2010

How not to write a complaint these days

The days of "notice pleading" are over. Notice pleading under the Federal Rules of Civil Procedure meant that the Complaint that initiates a lawsuit did not have to provide too many details, just enough information to put the defendant on notice of the allegations against it. But, like I said, the days of "notice pleading" are over. These days, it's all about Iqbal pleading.

The case is Sanders v. Grenadier Realty, Inc., a summary order decided on February 22. This is a housing discrimination case. As the Court of Appeals tells us,

Plaintiffs submit that the following allegations adequately state that defendants intentionally discriminated against them based on race: (1) “Upon information and belief, non-black residents have been granted subsidies and re-certifications while plaintiffs have been denied the same in the same period,” Amended Complaint ¶ 17; and (2) “In light of the foregoing therefore, the defendants discriminated against plaintiffs on account of their race and national origin in violation of Title VIII, and sections 1982 and 1981,” id. ¶ 26.

Under Iqbal pleading (named after a Supreme Court case from 2009 which tightened pleading requirements), the plaintiff has to allege a plausible claim, not merely a possible claim. Conclusions (sometimes good enough under notice pleading), are not enough anymore. The above snippet from the complaint doesn't cut it. The Court of Appeals (Calabresi, Raggi and Cuhady [D.J.]), says that "While paragraph 17 does allege facts consistent with a discrimination claim, i.e., that non-black residents were granted subsidies, it nevertheless 'stops short of the line between possibility and plausibility of entitlement to relief,' because plaintiffs do not allege any facts supporting an inference of racial animus."

The complaint also alleges that plaintiffs were “refused a recertification that would [have] granted [them] much needed rent subsidies' in violation of the [Fair Housing Act]. Amended Complaint ¶ 11." This is not going to cut it either. The Second Circuit concludes that the complaint does not adequately allege that plaintiffs “were qualified to rent or purchase the housing,” a necessary requirement for bringing a claim. This is because it only makes only the following conclusory assertions:

(1) “Sanders was ... denied the right to subsidies that she is entitled to,” Am. Compl. ¶ 12, and (2) “At all times plaintiffs were competent and able to pay their rent under the subsidies offered to [them] under the National Housing Act,” id. ¶ 15.

Why does this allegation fail under Iqbal ? The Court of Appeals says that because "a necessary precondition to rent subsidies is a resident’s submission of required reports as to her income and household composition within ten days of the landlord’s written request. Because plaintiffs have not alleged satisfaction of this requirement for the year at issue, we cannot conclude that the complaint plausibly alleges plaintiffs’ entitlement to the subsidies that qualify them to pay their rent. In light of this omission and plaintiffs’ failure to allege what defendants did or did not do to deny them subsidies, we identify no error in the district court’s dismissal of plaintiffs’ FHA claim."

It's possible that the plaintiffs in this case have a real claim. But the rules have changed. It's an Iqbal world now. Notice pleading is dead. The case is dismissed.

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