I have previously written about the significance of the United States Supreme Court’s decision in Ashcroft v.Iqbal, 129 S.Ct. 1937 (2009), and its effect on federal pleading standards for both plaintiffs and defendants. And with the issuance last week of Francis v. Giacomelli, 2009 WL 4348830 (4th Cir. 2009), the Fourth Circuit has now weighed in and made clear that a plaintiff has a much heavier burden to satisfy in pleading its case.
I will not discuss Francis in great detail; for that analysis, I refer you to Mack Sperling’s post at the North Carolina Business Litigation Report; Rob Hoskins’ post at ERISABoard (registration required); and Jay O’Keeffe’s post at DeNovo: A Virginia Appellate Law Blog.
I want to reiterate two points that Jay made. If you’re a plaintiff, make the factual allegations in your complaint as specific as possible. Do not rely on generalizations or conclusory statements. A federal judge is not going to accept unsupported assertions or make assumptions in your client’s favor to keep your case in court. If you’re a defendant, file a motion to dismiss. You won’t always prevail, but your odds have surely improved with Iqbal and Francis, and cases that a few months ago would not have been at risk of being dismissed now may end up getting tossed.
I have already encountered Iqbal in my own practice, and judging from Jay’s statistics, the decision will be relied upon increasingly. Add to that the effect of Francis, and pleading for plaintiffs in federal courts, at least in the Fourth Circuit, is more arduous than ever.