Iqbal, Churning and Rule 11

I just wasted about an hour of time this morning responding to a frivolous motion to dismiss. Defense counsel's pleading relied on Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). Here's the issue.

The clients were stopped by police on a highway when one of the plaintiff's had difficulty negotiating a tricky intersection on an Interstate highway. Once the officer had stopped the driver and passenger, he accused them of drinking to excess. They denied it. He separated the two of the and placing the driver in his cruiser, and leaving the passenger in the plaintiffs' car.

He interrogated both, offering understanding if one would but admit they'd both been drinking. Neither did. The stop lasted for more than an hour. When it was done, he issued the driver a citation for a bad lane change, and let them go. We sued on grounds of an unreasonable seizure as to both. In the complaint, we plead that the defendant's action were intentional and inspired by malice.

The defendant trotted out Iqbal, asking for more facts.

Iqbal is a gift for the defensne bar. At the recent Practicing Law Institute seminar in New York City, I sat near a group of young lawyers from the New York City Corporation Counsel's office. One of them arrived late, after the section on Iqbal and what I will refer to as heightened pleading requirements. "The moral of the story?" one young lawyer said to the late arrival, "File a motion to dismiss in every case."

Iqbal requires more than incantation at the pleading stage. You must plead plausible facts supporting a claim, facts that can survive something new under the Sun: a "plausibility standard."

Filing a motion to dismiss in every case is frivolous. Pleading intent is required to sustain even minimal pre-Iqbal scrutiny. So is pleading malice, if you want the jury to consider punitive damages.

In my case, the defense lawyer really wanted to challenge my claim that the stop was more than an hour in duration. He had a police CAD entry that showed the stop to be all of about 20 minutes in length. He served requests to admit on my clients asking them to authenticate and validate the CAD entry. We did not do so. We do not know how long the officer waited before calling in the stop. My clients checked their watches and are prepared to testify that they were detained more than an hour. We would not have pleaded that they were detained for that period if it were not supported by anticipated testimony.

So what was the point of this Iqbal motion? Most likely, billable hours and harassment of the plaintiff's bar. The case is privately defended, so I am guessing the lawyer billed several hours to produce his 17-page brief. But to what end? The case is simple and should not require detailed pleading: the officer stopped two women; he detained them; once he realized there was no reason to hold them, he refused to let them leave. This isn't rocket science. It is a bread and butter claim of an unreasonable seizure.

Plaintiff's lawyers don't work on an hourly basis. And police misconduct claims are notoriously difficult. Qualified immunity makes all but the most egregious claims a crap shoot to get to a jury. The defense bar can use Iqbal to generate fees for themselves while increasing what I call the aggravation costs to the plaintiff's bar. I wonder whether trial judges will grant sanctions for Iqbal motions filed in bad faith? I doubt it, and I don't intend to press the issue by wasting more time I do not have.

Norm Pattis

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