Recent Post-Iqbal Pleading Decisions in the Circuits (II)
This year, as I was preparing the annual update for my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2012; West Group)(CIVLIBLIT on WESTLAW), I came across three additional circuit court decisions applying Iqbal. I want to share them with you in advance of publication this fall of the 2013 Update.
Of particular interest is Judge Hamilton’s partially dissenting opinion in the Seventh Circuit’s McCauley decision.
In Grajales v. Puerto Rico Ports Authority, 682 F.3d 40 (1st Cir. 2012), the district court had granted a motion to dismiss under Rule 12(c) submitted by the defendants in a political discrimination case, even though substantial discovery had been completed. The district court determined that the plaintiff’s claim did not cross Iqbal’s plausibility threshold because it did not allege sufficient facts to show political discrimination.
Reversing, the First Circuit did not have to decide whether the district court abused its discretion in ruling on defendants’ motion after nine months of pretrial discovery. Instead, the First Circuit found that the plaintiff’s complaint plausibly alleged political discrimination in violation of the First Amendment. There was enough alleged regarding the membership in different political parties of the plaintiff and the defendants, the defendants’ knowledge of plaintiff’s membership and the existence of an adverse employment action. Finally, the allegations of a close temporal proximity between the regime change and the beginning of pervasive cross-party harassment, without any legitimate explanation for such conduct, were sufficient to show political animus.
In McCauley v. City of Chicago, 671 F3d 611 (7th Cir. 2011), the Seventh Circuit held that the plaintiff did not state an equal protection claim against the City of Chicago in connection with the killing of plaintiff’s decedent by her ex-boyfriend. It found that the plaintiff did not plausibly state a policy or practice equal protection claim under Iqbal because the complaint contained only generalized allegations that the City failed to have specific policies in effect to protect victims of domestic violence from those who violate their parole or are under court orders for domestic violence.
Judge Hamilton dissented in part in a thoughtful opinion. 671 F.3d at 620. He argued that the plaintiff’s equal protection claim against the City should survive even under Iqbal because the complaint plausibly alleged that the City made a deliberate decision to minimize police protection available to women because of intentional animus against them.
Judge Hamilton then went on to list some of the problems posed by Iqbal to federal judges and litigants: its reasoning conflicted with Rule 9(b), with other recent Supreme Court decisions such as Leatherman and Swierkiewicz and with form complaints approved by the Supreme Court and Congress. He also criticized the Iqbal Court’s reliance on what he called the fact/conclusion dichotomy as highly subjective “and [it] returns courts to the long disapproved methods of analysis under the regime of code pleading.” 671 F.3d at 624. He further criticized that Court’s reliance on “judicial experience and common sense” as inviting highly subjective and inconsistent results. He concluded with two observations. First, under Iqbal it was questionable whether the amended complaint in Brown v. Bd. of Education would have survived. Second, federal courts should “freely” give leave to amend under Rule 15(a) where the interests of justice require.
After removal to federal court, federal pleading rules control. Thus, in Christiansen v. West Branch Community School Dist., 674 F.3d 927 (8th Cir. 2012), the Eighth Circuit affirmed the dismissal of the plaintiff’s § 1983 claims for failure to state causes of action under the criteria of Iqbal. Plaintiff originally filed in Iowa state court and the defendants had removed to federal court, resulting in the dismissal. The court rejected the plaintiff’s contention that he was at least entitled to a remand to amend his complaint to comply with Iqbal rather than Iowa’s no-set-of-facts pleading. Plaintiff should have been aware of the possibility of removal to federal court and of the application of Iqbal, and he had enough time to amend his complaint if he had wanted to.
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