Most scholars mark the end of notice pleading in federal civil cases at the time of the Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly or, at the latest, at the Court’s 2009 decision in Ashcroft v. Iqbal. Scholars have noted occasional departures from the notice pleading standard in more complex civil cases, but notice pleading has been thought to remain the prevalent practice in simple negligence cases. This Article examines two sets of complaints filed in federal district courts in 2006 in cases alleging injuries from simple automobile accidents. We find that notice pleading practice, as indicated by Form 11 in the Appendix of Forms that accompany the Federal Rules of Civil Procedure, had already been abandoned in these routine cases before Twombly in favor of narrative pleading that provides a fuller expression of the factual context of the claim. If pleading practice did not follow the notice pleading standard before Twombly in simple negligence cases that had the benefit of specific Form 11 guidance, it is doubtful that attorneys adhered to notice pleading practice in other more complex federal civil cases. In this regard, our findings also raise doubts about the utility of Form 11. In discussing our findings, we also briefly explore the psychology of pleading and whether the emergence of narrative pleading was an unintended consequence of a series of amendments to the Federal Rules of Civil Procedure starting in the mid-1980s and intended to allow more effective judicial management of litigation. While the Twombly/Iqbal plausibility standard certainly presents a higher standard than notice pleading, the trend is clear: pleading additional facts beyond the requirements of notice pleading predated Twombly or Iqbal and lower courts had already started to abandon the notice pleading standard.
Jason A. Cantone, Joe S. Cecil & Dhairya Jani,
Whither Notice Pleading?: Pleading Practice in the Days Before Twombly,
S. Ill. U. L.J.
Available at: http://opensiuc.lib.siu.edu/siulj/vol39/iss1/3