tag:blogger.com,1999:blog-36762711.post7539686087499554134..comments2023-11-03T06:14:58.449-04:00Comments on Drug and Device Law: Twombly/Iqbal Requires Identifying Allegedly Violated StatuteRachel B. Weilhttp://www.blogger.com/profile/02251124525069607080noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-36762711.post-65892147225686504432009-08-24T23:38:27.542-04:002009-08-24T23:38:27.542-04:00This decision sounds incorrect to me. The questio...This decision sounds incorrect to me. The question in a motion to dismiss is whether the FACTS in a pleading state a cause of action. Neither Twombly nor Iqbal says anything about pleading legal theories themselves.<br /><br />I've always understood that citations to law in pleadings were like headings, surplussage for easy reading. Indeed, as in opening arguments, legal citations are disfavored in pleadings.<br /><br />Now, one should still be able to identify a legal theory that the facts support in a response to a motion to dismiss, but the absence of a legal theory or citation in the pleading itself should be irrelevant.<br /><br />For example, in a negligence per se case where the allegation is that you drove on the wrong side of the road, the allegation that you drove on the wrong side of the road should be sufficicent, even if the citation to the relevant traffic law is absent. A trial court ruling dismissing a case on the grounds that factual allegations that you were not driving on the right side of the road are insufficient would be error. Ultimately, judges, not parties, supply the law. This is why questions are law are reviewed de novo.<br /><br />There are a host of cases out there that hold that fact that state a cause of action state a claim, even if the legal theory is wrong or not stated in the pleading itself. I hadn't read Iqbal or Twombly to supercede those cases. A complaint is not a motion for summary judgment.Andrew Oh-Willekehttps://www.blogger.com/profile/02537151821869153861noreply@blogger.com