Friday, November 23, 2012
TwIqbal for Catch-All
What are we thankful for? How about TwIqbal? One of our colleagues the other day asked us what to do about a catch-all “otherwise negligent” language in a complaint removed to federal court from Pennsylvania, and we immediately said “TwIqbal.”
Personal note: we’ve hated these catch-all allegations ever since Connor v. Allegheny General Hospital, 461 A.2d 600, 602 (Pa. 1983), in which the since-impeached Rolf Larsen relied on such blatant boilerplate to let plaintiffs with new theories escape the statute of limitations – thereby giving rise to innumerable time-wasting “Connor” preliminary objections.
But we also thought “blogpost,” since we haven’t before covered that precise question.
So let’s find out if our kneejerk reaction was right or not.
The answer is yes (our knees still jerk properly).
We’ll start with Reed v. Pfizer, Inc., 839 F. Supp.2d 571 (E.D.N.Y. 2012), where one of the allegations that was TwIqballed was that the product – a prescription drug − “was otherwise negligently and recklessly advertised, marketed, promoted, distributed, and sold.” Id. at 573. The court reamed out plaintiff’s warning-related claims (and everything else, actually) under TwIqbal:
Pointedly, these allegations do not include any factual content regarding what the misrepresentations were or how the provided warnings and information failed to “accurately reflect” reality; they do not provide a plausible basis to support an inference [defendants] misrepresented anything.
Id. at 576. Since Reed is a drug case, it’s closest in terms of subject matter to where we play.
Next we like Gority v. Norfolk Southern Railway Co., 2011 WL 4542676 (W.D. Pa. Sept. 28, 2011), because it’s closest substantively – not only is it another Pennsylvania complaint with the Connor boilerplate, but the court takes care of the TwIqbal issue most pithily:
Plaintiff asserts that Defendant “[w]as otherwise negligent . . . in ways not specifically alleged.” This barebones, catch-all assertion of negligence provides no information as to what duties existed or how Defendant may have breached them. Absent such information, there is no way that Defendant can reasonably prepare a response. If Plaintiff plans to rely on other theories of negligence not specifically pled in the Complaint, he must state them.
Id. at *7 (citation to complaint omitted). So there.
In the interests of completeness (we hate doing research for nothing) here are some more cases that get rid of “otherwise” catchall allegations. In Rua v. Glodis, 2012 WL 4753279, *4 (D. Mass. Oct. 3, 2012), the court held that “Plaintiff's mere assertion that [defendant's] conduct was negligent or otherwise violated his rights is insufficient to satisfy the minimal pleading requirements of Rule 8(a)” – that is to say TwIqbal. Similarly, in Grieser v. Montgomery, 2012 WL 1906379 (N.D. Ohio May 25, 2012), the plaintiff alleged (among other things) that the defendants “otherwise were negligent.” The allegations received judicial opprobrium:
These are bare legal conclusions, clearly insufficient under Twombly and Iqbal. Without more factual matter alleged, these claims are not facially plausible. . . . Plaintiff does not even allege all the elements of these causes of action, let alone factual matter supporting a reasonable inference about each element, and this alone is fatal.
Id. at *6. See Dominguez v. Corbett, 2010 WL 3619432, at *5 (D. Ariz. Aug. 5, 2010) (allegation that defendant acted “negligently or otherwise” “does not provide fair notice of the grounds upon which it rests” and was “a threadbare recital of the element of a cause of action . . . insufficient to survive a motion to dismiss”); Lawrence v. City Cadillac, 2010 WL 5174209, at *8 (S.D.N.Y. Dec. 9, 2010) (a “catchall claim, without facts other than a clause incorporating the plaintiff's prior allegations by reference, is insufficient to show the plaintiff is entitled to relief”)
Be thankful. Whether or not catch-all “otherwise negligent” allegations have any substantive effect under federal practice (against the statute of limitations or in any other way), there’s no need to risk exposing your client to it. Such allegations are vulnerable to TwIqbal.