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In Bell Atlantic v. Twombly, 127 S. Ct. 1955 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court substantially altered the pleading standard for civil litigants.  To proceed with a civil claim, plaintiffs must now allege enough facts in the complaint to state a “plausible” claim for relief. In her article, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, Professor Suzette Malveaux  superbly discusses how these recent cases have had a particularly dramatic impact on civil rights litigation.  The impact of Iqbal on this area of the law is often overlooked, and she does an excellent job of explaining how the plausibility standard will impact these litigants.

In her Article, Professor Malveaux begins by critiquing the Iqbal case, highlighting some of the many problems with this decision.  She notes that the Iqbal Court failed to consider the allegations in the case “as a whole,” that in practicality it is often difficult to separate out conclusory from nonconclusory assertions as the decision requires, and that the standard adopted by the Court appears to be a “probability test” rather than a plausibility inquiry. (P. 81-83.) She further accuses the Court of endorsing “judicial fact-finding” at the early stages of the proceedings. (P. 84.)

As Professor Malveaux correctly observes, “[w]hile the Federal Rules of Civil Procedure are trans-substantive, their impact is not.” (P. 67.)  One area where that impact has been noticeable is in the civil rights context.  Professor Malveaux believes that the plausibility standard “threatens the viability of potentially meritorious civil rights claims.”  (P. 85.) In her paper, she highlights how these claims are particularly susceptible to dismissal under the Court’s plausibility analysis.  Most notably, intentional discrimination claims often involve the pleading of factual information that is consistent with both lawful and unlawful conduct.  Similarly, it can be difficult for plaintiffs – without access to discovery – to plead facts supporting intentional discrimination.  This is true because discrimination is often “subtle” and the facts which would typically support this type of claim are “often in [the defendant’s] exclusive possession.” (P. 89-91.)  Finally, determining plausibility is a subjective process, and “personal perception, rather than the law, threatens to become outcome determinative.” (P. 93.) This may be particularly problematic for civil rights plaintiffs, as the judiciary can be hostile to such claims.

Professor Malveaux does an excellent job of identifying the difficulty civil rights plaintiffs face with the new plausibility standard.  Her paper goes further, however, and provides a potential solution to this problem.  Professor Malveaux argues that permitting some discovery early in the proceedings will help alleviate many of the difficulties faced by plaintiffs – a process that she terms “plausibility discovery.” (P. 108.) She maintains that this approach is necessary “to insure that the trans-substantive application of the Rules does not work an injustice against those cases involving informational inequities.” (P. 108.) Professor Malveaux further outlines what this type of “narrow, targeted plausibility discovery at the pleadings stage” might look like. (P. 108.) More specifically, she explores how pre-merits discovery has been permitted to proceed in various other contexts, including class-certification, qualified immunity, and jurisdictional disputes.  She concludes that where necessary, judges have already “adeptly managed” this type of discovery.  (P. 122.) Professor Malveaux further discusses how plausibility discovery comports with both the federal rules and policy considerations, and effectively explains how this process could work in practice.

The plausibility standard announced by the Supreme Court has generated significant confusion and debate both in the courts and in academia.  Professor Malveaux’s contribution to this debate is substantial.  The impact of the Court’s standard on civil rights claims is one of the most important issues currently facing plaintiffs, and Professor  Malveaux does an outstanding job of identifying the potential problems in this area, as well as offering a workable solution.  Plausibility discovery is itself quite plausible, and it should be closely considered by the courts to allow valid civil rights claims to proceed.  This paper was one of several excellent pieces in a symposium issue of the Lewis & Clark Law Review.  All of these articles can be downloaded here.

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Cite as: Joseph Seiner, Plausibility, Civil Rights, and Discovery, JOTWELL (January 18, 2012) (reviewing Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases,  14 Lewis & Clark L. Rev. 65 (2010)),