Wednesday, May 12, 2010

This is what Iqbal "implausibility" looks like

When the Supreme Court decided in Ashcroft v. Iqbal, 129 S.Ct. 137 (2009), that "plausibility" would be the standard governing motions to dismiss, lawyers worried that trigger-happy courts would more closely scrutinize legitimate claims and throw them out because they were not plausible in a judge's subjective assessment. That may be, but Iqbal plausibility also allows the courts to throw out claims that are simply implausible and can never be won.

The case is McCracken v. Brookhaven Science Associates, a summary order decided on May 12. Plaintiff filed this case pro se. He claims that experiments conducted at Brookhaven National Laboratory released radiation that gave him thyroid cancer.

The Court of Appeals (Lynch, Miner and Trager [D.J.]) says that claims like this are not implausible on their face. But it does not survive the Iqbal plausibility test. The Court says that plaintiff does not support this claim with any specific factual allegations "to draw the inference that Brookhaven was liable. Appellant never worked at Brookhaven; he alleges only that 'he has for thirty-three (33) years resided in the vicinity of' Brookhaven; and he gives no hint in his pleading of any fact suggesting that Brookhaven, or any other defendant for that matter, was responsible for the alleged leaks." In a footnote, the Court notes that "Appellant’s closest residence to Brookhaven was over twenty miles away in Commack, New York, where he claims he lived for four years."

While most plaintiffs are allowed to amend their dismissed complaints to cure any defects, the Court of Appeals denies that opportunity to plaintiff. The Court explains, "courts must dismiss in forma pauperis complaints that are frivolous or fail to state a claim." Basically, the Court of Appeals does not believe that plaintiff will ever be able to prove his case and that the complaint on its face is implausible as a matter of law.

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