STEVENS, J., DISSENTING
BELL ATLANTIC CORP. V. TWOMBLY
550 U. S. ____ (2007)
SUPREME COURT OF THE UNITED STATES
NO. 05-1126
BELL ATLANTIC CORPORATION, et al., PETI-
TIONERS
v. WILLIAM TWOMBLY et al.
on writ of certiorari to the united states court of
appeals for the second circuit
[May 21, 2007]
Justice Stevens, with whom
Justice Ginsburg joins except as to Part IV, dissenting.
In the first paragraph of its
24-page opinion the Court states that the question to be decided is
whether allegations that “major telecommunications providers
engaged in certain parallel conduct unfavorable to competition”
suffice to state a violation of §1 of the Sherman Act.
Ante, at 1. The answer to that question has been settled
for more than 50 years. If that were indeed the issue, a summary
reversal citing
Theatre Enterprises, Inc. v.
Paramount
Film Distributing Corp., 346 U. S. 537 (1954),
would adequately resolve this case. As
Theatre Enterprises
held, parallel conduct is circumstantial evidence admissible on the
issue of conspiracy, but it is not itself illegal.
Id., at
540–542.
Thus, this is a case in which there is no
dispute about the substantive law. If the defendants acted
independently, their conduct was perfectly lawful. If, however,
that conduct is the product of a horizontal agreement among
potential competitors, it was unlawful. Plaintiffs have alleged
such an agreement and, because the complaint was dismissed in
advance of answer, the allegation has not even been denied. Why,
then, does the case not proceed? Does a judicial opinion that the
charge is not “plausible” provide a legally acceptable reason for
dismissing the complaint? I think not.
Respondents’ amended complaint describes a
variety of circumstantial evidence and makes the straightforward
allegation that petitioners
“entered into a contract, combination or conspiracy
to prevent competitive entry in their respective local telephone
and/or high speed internet services markets and have agreed not to
compete with one another and otherwise allocated customers and
markets to one another.” Amended Complaint in No. 02 CIV. 10220
(GEL) (SDNY) ¶51, App. 27 (hereinafter Complaint).
The complaint explains that, contrary to Congress’
expectation when it enacted the 1996 Telecommunications Act, and
consistent with their own economic self-interests, petitioner
Incumbent Local Exchange Carriers (ILECs) have assiduously avoided
infringing upon each other’s markets and have refused to permit
nonincumbent competitors to access their networks. The complaint
quotes Richard Notebaert, the former CEO of one such ILEC, as
saying that competing in a neighboring ILEC’s territory “might be a
good way to turn a quick dollar but that doesn’t make it right.”
Id., ¶42, App. 22. Moreover, respondents allege that
petitioners “communicate amongst themselves” through numerous
industry associations.
Id., ¶46, App. 23. In sum,
respondents allege that petitioners entered into an agreement that
has long been recognized as a classic
per se violation of
the Sherman Act. See Report of the Attorney General’s National
Committee to Study the Antitrust Laws 26 (1955).
Under rules of procedure that have been well
settled since well before our decision in
Theatre
Enterprises, a judge ruling on a defendant’s motion to dismiss
a complaint, “must accept as true all of the factual allegations
contained in the complaint.”
Swierkiewicz v.
Sorema
N. A.,
534
U. S. 506, 508, n. 1 (2002); see
Overstreet v.
North Shore Corp.,
318 U. S. 125, 127
(1943). But instead of requiring knowledgeable executives such as
Notebaert to respond to these allegations by way of sworn
depositions or other limited discovery—and indeed without so much
as requiring petitioners to file an answer denying that they
entered into any agreement—the majority permits immediate dismissal
based on the assurances of company lawyers that nothing untoward
was afoot. The Court embraces the argument of those lawyers that
“there is no reason to infer that the companies had agreed among
themselves to do what was only natural anyway,”
ante, at
19; that “there was just no need for joint encouragement to resist
the 1996 Act,”
ante, at 20; and that the “natural
explanation for the noncompetition alleged is that the former
Government-sanctioned monopolists were sitting tight, expecting
their neighbors to do the same thing,”
ante, at 21.
The Court and petitioners’ legal team are no
doubt correct that the parallel conduct alleged is consistent with
the absence of any contract, combination, or conspiracy. But that
conduct is also entirely consistent with the
presence of
the illegal agreement alleged in the complaint. And the charge that
petitioners “agreed not to compete with one another” is not just
one of “a few stray statements,”
ante, at 18; it is an
allegation describing unlawful conduct. As such, the Federal Rules
of Civil Procedure, our longstanding precedent, and sound practice
mandate that the District Court at least require some sort of
response from petitioners before dismissing the case.
Two practical concerns presumably explain the
Court’s dramatic departure from settled procedural law. Private
antitrust litigation can be enormously expensive, and there is a
risk that jurors may mistakenly conclude that evidence of parallel
conduct has proved that the parties acted pursuant to an agreement
when they in fact merely made similar independent decisions. Those
concerns merit careful case management, including strict control of
discovery, careful scrutiny of evidence at the summary judgment
stage, and lucid instructions to juries; they do not, however,
justify the dismissal of an adequately pleaded complaint without
even requiring the defendants to file answers denying a charge that
they in fact engaged in collective decisionmaking. More
importantly, they do not justify an interpretation of Federal Rule
of Civil Procedure 12(b)(6) that seems to be driven by the
majority’s appraisal of the plausibility of the ultimate factual
allegation rather than its legal sufficiency.
I
Rule 8(a)(2) of the Federal Rules
requires that a complaint contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” The rule
did not come about by happenstance and its language is not
inadvertent. The English experience with Byzantine special pleading
rules—illustrated by the hypertechnical Hilary rules of
1834[
Footnote 1]—made obvious
the appeal of a pleading standard that was easy for the common
litigant to understand and sufficed to put the defendant on notice
as to the nature of the claim against him and the relief sought.
Stateside, David Dudley Field developed the highly influential New
York Code of 1848, which required “[a] statement of the facts
constituting the cause of action, in ordinary and concise language,
without repetition, and in such a manner as to enable a person of
common understanding to know what is intended.” An Act to Simplify
and Abridge the Practice, Pleadings and Proceedings of the Courts
of this State, ch. 379, §120(2), 1848 N. Y. Laws pp. 497, 521.
Substantially similar language appeared in the Federal Equity Rules
adopted in 1912. See Fed. Equity Rule 25 (requiring “a short and
simple statement of the ultimate facts upon which the plaintiff
asks relief, omitting any mere statement of evidence”).
A difficulty arose, however, in
that the Field Code and its progeny required a plaintiff to plead
“facts” rather than “conclusions,” a distinction that proved far
easier to say than to apply. As commentators have noted,
“it is virtually impossible logically to
distinguish among ‘ultimate facts,’ ‘evidence,’ and ‘conclusions.’
Essentially any allegation in a pleading must be an assertion that
certain occurrences took place. The pleading spectrum, passing from
evidence through ultimate facts to conclusions, is largely a
continuum varying only in the degree of particularity with which
the occurrences are described.” Weinstein & Distler, Comments
on Procedural Reform: Drafting Pleading Rules, 57 Colum.
L. Rev. 518, 520–521 (1957).
See also Cook, Statements of Fact in Pleading Under
the Codes, 21 Colum. L. Rev. 416, 417 (1921) (hereinafter Cook)
(“[T]here is no logical distinction between statements which are
grouped by the courts under the phrases ‘statements of fact’ and
‘conclusions of law’ ”). Rule 8 was directly responsive to
this difficulty. Its drafters intentionally avoided any reference
to “facts” or “evidence” or “conclusions.” See 5 C. Wright & A.
Miller, Federal Practice and Procedure §1216, p. 207 (3d ed. 2004)
(hereinafter Wright & Miller) (“The substitution of ‘claim
showing that the pleader is entitled to relief’ for the code
formulation of the ‘facts’ constituting a ‘cause of action’ was
intended to avoid the distinctions drawn under the codes among
‘evidentiary facts,’ ‘ultimate facts,’ and
‘conclusions’ …”).
Under the relaxed pleading standards of the
Federal Rules, the idea was not to keep litigants out of court but
rather to keep them in. The merits of a claim would be sorted out
during a flexible pretrial process and, as appropriate, through the
crucible of trial. See
Swierkiewicz, 534 U. S., at 514
(“The liberal notice pleading of Rule 8(a) is the starting point of
a simplified pleading system, which was adopted to focus litigation
on the merits of a claim”). Charles E. Clark, the “principal
draftsman” of the Federal Rules,[
Footnote 2] put it thus:
“Experience has shown … that we cannot expect the
proof of the case to be made through the pleadings, and that such
proof is really not their function. We can expect a general
statement distinguishing the case from all others, so that the
manner and form of trial and remedy expected are clear, and so that
a permanent judgment will result.” The New Federal Rules of Civil
Procedure: The Last Phase—Underlying Philosophy Embodied in Some of
the Basic Provisions of the New Procedure, 23 A. B. A. J.
976, 977 (1937) (hereinafter Clark, New Federal Rules).
The pleading paradigm under the new Federal Rules
was well illustrated by the inclusion in the appendix of Form 9, a
complaint for negligence. As relevant, the Form 9 complaint states
only: “On June 1, 1936, in a public highway called Boylston Street
in Boston, Massachusetts, defendant negligently drove a motor
vehicle against plaintiff who was then crossing said highway.” Form
9, Complaint for Negligence, Forms App., Fed. Rules Civ. Proc., 28
U. S. C. App., p. 829 (hereinafter Form 9). The complaint then
describes the plaintiff’s injuries and demands judgment. The
asserted ground for relief—namely, the defendant’s negligent
driving—would have been called a “ ‘conclusion of law’ ”
under the code pleading of old. See,
e.g., Cook 419. But
that bare allegation suffices under a system that “restrict[s] the
pleadings to the task of general notice-giving and invest[s] the
deposition-discovery process with a vital role in the preparation
for trial.”[
Footnote 3]
Hickman v.
Taylor,
329 U. S. 495, 501
(1947); see also
Swierkiewicz, 534 U. S., at 513,
n. 4 (citing Form 9 as an example of “ ‘the simplicity
and brevity of statement which the rules contemplate’ ”);
Thomson v.
Washington, 362 F. 3d 969, 970
(CA7 2004) (Posner, J.) (“The federal rules replaced fact pleading
with notice pleading”).
II
It is in the context of this
history that
Conley v.
Gibson,
355 U. S. 41 (1957), must
be understood. The
Conley plaintiffs were black railroad
workers who alleged that their union local had refused to protect
them against discriminatory discharges, in violation of the
National Railway Labor Act. The union sought to dismiss the
complaint on the ground that its general allegations of
discriminatory treatment by the defendants lacked sufficient
specificity. Writing for a unanimous Court, Justice Black rejected
the union’s claim as foreclosed by the language of Rule 8.
Id., at 47–48. In the course of doing so, he articulated
the formulation the Court rejects today: “In appraising the
sufficiency of the complaint we follow, of course, the accepted
rule that a complaint should not be dismissed for failure to state
a claim unless it appears beyond doubt that the plaintiff can prove
no set of facts in support of his claim which would entitle him to
relief.”
Id., at 45–46.
Consistent with the design of the
Federal Rules,
Conley’s “no set of facts” formulation
permits outright dismissal only when proceeding to discovery or
beyond would be futile. Once it is clear that a plaintiff has
stated a claim that, if true, would entitle him to relief, matters
of proof are appropriately relegated to other stages of the trial
process. Today, however, in its explanation of a decision to
dismiss a complaint that it regards as a fishing expedition, the
Court scraps
Conley’s “no set of facts ” language.
Concluding that the phrase has been “questioned, criticized, and
explained away long enough,”
ante, at 16, the Court
dismisses it as careless composition.
If
Conley’s “no set of facts”
language is to be interred, let it not be without a eulogy. That
exact language, which the majority says has “puzzl[ed] the
profession for 50 years,”
ibid., has been cited as
authority in a dozen opinions of this Court and four separate
writings.[
Footnote 4] In not
one of those 16 opinions was the language “questioned,”
“criticized,” or “explained away.” Indeed, today’s opinion is the
first by any Member of this Court to express
any doubt as
to the adequacy of the
Conley formulation. Taking their
cues from the federal courts, 26 States and the District of
Columbia utilize as their standard for dismissal of a complaint the
very language the majority repudiates: whether it appears “beyond
doubt” that “no set of facts” in support of the claim would entitle
the plaintiff to relief.[
Footnote
5]
Petitioners have not requested that the
Conley formulation be retired, nor have any of the six
amici who filed briefs in support of petitioners. I would
not rewrite the Nation’s civil procedure textbooks and call into
doubt the pleading rules of most of its States without far more
informed deliberation as to the costs of doing so. Congress has
established a process—a rulemaking process—for revisions of that
order. See 28 U. S. C. §§2072–2074 (2000 ed. and Supp.
IV).
Today’s majority calls
Conley’s
“ ‘no set of facts’ ” language “an incomplete, negative
gloss on an accepted pleading standard: once a claim has been
stated adequately, it may be supported by showing any set of facts
consistent with the allegations in the complaint.”
Ante,
at 16. This is not and cannot be what the
Conley Court
meant. First, as I have explained, and as the
Conley Court
well knew, the pleading standard the Federal Rules meant to codify
does not require, or even invite, the pleading of facts.[
Footnote 6] The “pleading standard”
label the majority gives to what it reads into the
Conley
opinion—a statement of the permissible factual support for an
adequately pleaded complaint—would not, therefore, have impressed
the
Conley Court itself. Rather, that Court would have
understood the majority’s remodeling of its language to express an
evidentiary standard, which the
Conley Court had
neither need nor want to explicate. Second, it is pellucidly clear
that the
Conley Court was interested in what a complaint
must contain, not what it
may contain. In fact,
the Court said without qualification that it was “appraising the
sufficiency of the complaint.” 355 U. S., at 45 (emphasis
added). It was, to paraphrase today’s majority, describing “the
minimum standard of adequate pleading to govern a complaint’s
survival,”
ante, at 16–17.
We can be triply sure as to
Conley’s
meaning by examining the three Court of Appeals cases the
Conley Court cited as support for the “accepted rule” that
“a complaint should not be dismissed for failure to state a claim
unless it appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle him to
relief.” 355 U. S., at 45–46. In the first case,
Leimer v.
State Mut. Life Assur. Co. of Worcester, Mass., 108
F. 2d 302 (CA8 1940), the plaintiff alleged that she was the
beneficiary of a life insurance plan and that the insurance company
was wrongfully withholding proceeds from her. In reversing the
District Court’s grant of the defendant’s motion to dismiss, the
Eighth Circuit noted that court’s own longstanding rule that, to
warrant dismissal, “ ‘it should appear from the allegations
that a cause of action does not exist, rather than that a cause of
action has been defectively stated.’ ”
Id., at 305
(quoting
Winget v.
Rockwood, 69 F. 2d 326,
329 (CA8 1934)).
The
Leimer court viewed the Federal
Rules—specifically Rules 8(a)(2), 12(b)(6), 12(e) (motion for a
more definite statement), and 56 (motion for summary judgment)—as
reinforcing the notion that “there is no justification for
dismissing a complaint for insufficiency of statement, except where
it appears to a certainty that the plaintiff would be entitled to
no relief under any state of facts which could be proved in support
of the claim.” 108 F. 2d, at 306. The court refuted in the
strongest terms any suggestion that the unlikelihood of recovery
should determine the fate of a complaint: “No matter how improbable
it may be that she can prove her claim, she is entitled to an
opportunity to make the attempt, and is not required to accept as
final a determination of her rights based upon inferences drawn in
favor of the defendant from her amended complaint.”
Ibid.
The Third Circuit relied on
Leimer’s
admonition in
Continental Collieries, Inc. v.
Shober, 130 F. 2d 631 (1942), which the
Conley Court also cited in support of its “no set of
facts” formulation. In a diversity action the plaintiff alleged
breach of contract, but the District Court dismissed the complaint
on the ground that the contract appeared to be unenforceable under
state law. The Court of Appeals reversed, concluding that there
were facts in dispute that went to the enforceability of the
contract, and that the rule at the pleading stage was as in
Leimer: “No matter how likely it may seem that the pleader
will be unable to prove his case, he is entitled, upon averring a
claim, to an opportunity to try to prove it.” 130 F. 3d, at
635.
The third case the
Conley Court cited
approvingly was written by Judge Clark himself. In
Dioguardi v.
Durning, 139 F. 2d 774 (CA2
1944), the
pro se plaintiff, an importer of “tonics,”
charged the customs inspector with auctioning off the plaintiff’s
former merchandise for less than was bid for it—and indeed for an
amount equal to the plaintiff’s own bid—and complained that two
cases of tonics went missing three weeks before the sale. The
inference, hinted at by the averments but never stated in so many
words, was that the defendant fraudulently denied the plaintiff his
rightful claim to the tonics, which, if true, would have violated
federal law. Writing six years after the adoption of the Federal
Rules he held the lead rein in drafting, Judge Clark said that the
defendant
“could have disclosed the facts from his point of
view, in advance of a trial if he chose, by asking for a pre-trial
hearing or by moving for a summary judgment with supporting
affidavits. But, as it stands, we do not see how the plaintiff may
properly be deprived of his day in court to show what he obviously
so firmly believes and what for present purposes defendant must be
taken as admitting.”
Id., at 775.
As any civil procedure student knows, Judge Clark’s
opinion disquieted the defense bar and gave rise to a movement to
revise Rule 8 to require a plaintiff to plead a “ ‘cause of
action.’ ” See 5 Wright & Miller §1201, at 86–87. The
movement failed, see
ibid.; Dioguardi was
explicitly approved in
Conley; and “[i]n retrospect the
case itself seems to be a routine application of principles that
are universally accepted,” 5 Wright & Miller §1220, at
284–285.
In light of
Leimer,
Continental
Collieries, and
Dioguardi,
Conley’s
statement that a complaint is not to be dismissed unless “no set of
facts” in support thereof would entitle the plaintiff to relief is
hardly “puzzling,”
ante, at 16. It reflects a philosophy
that, unlike in the days of code pleading, separating the wheat
from the chaff is a task assigned to the pretrial and trial
process.
Conley’s language, in short, captures the policy
choice embodied in the Federal Rules and binding on the federal
courts.
We have consistently reaffirmed that basic
understanding of the Federal Rules in the half century since
Conley. For example, in
Scheuer v.
Rhodes,
416 U. S. 232 (1974), we reversed the
Court of Appeals’ dismissal on the pleadings when the respondents,
the Governor and other officials of the State of Ohio, argued that
petitioners’ claims were barred by sovereign immunity. In a
unanimous opinion by then-Justice Rehnquist, we emphasized that
“[w]hen a federal court reviews the sufficiency of
a complaint, before the reception of any evidence either by
affidavit or admissions, its task is necessarily a limited one. The
issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims.
Indeed it may appear on the face of the pleadings that
a recovery is very remote and unlikely but that is not the
test.”
Id., at 236 (emphasis added).
The
Rhodes plaintiffs had “alleged
generally and in conclusory terms” that the defendants, by calling
out the National Guard to suppress the Kent State University
student protests, “were guilty of wanton, wilful and negligent
conduct.”
Krause v.
Rhodes, 471 F. 2d 430,
433 (CA6 1972). We reversed the Court of Appeals on the ground that
“[w]hatever the plaintiffs may or may not be able to establish as
to the merits of their allegations, their claims, as stated in the
complaints, given the favorable reading required by the Federal
Rules of Civil Procedure,” were not barred by the Eleventh
Amendment because they were styled as suits against the defendants
in their individual capacities. 416 U. S., at 238.
We again spoke with one voice against efforts
to expand pleading requirements beyond their appointed limits in
Leatherman v.
Tarrant County Narcotics Intelligence
and Coordination Unit,
507 U. S. 163 (1993). Writing for the
unanimous Court, Chief Justice Rehnquist rebuffed the Fifth
Circuit’s effort to craft a standard for pleading municipal
liability that accounted for “the enormous expense involved today
in litigation,”
Leatherman v.
Tarrant Cty. Narcotics
Intelligence and Coordination Unit, 954 F. 2d 1054, 1057
(1992) (internal quotation marks omitted), by requiring a plaintiff
to “state with factual detail and particularity the basis for the
claim which necessarily includes why the defendant-official cannot
successfully maintain the defense of immunity.”
Leatherman, 507 U. S., at 167 (internal quotation marks
omitted). We found this language inconsistent with Rules 8(a)(2)
and 9(b) and emphasized that motions to dismiss were not the place
to combat discovery abuse: “In the absence of [an amendment to Rule
9(b)], federal courts and litigants must rely on summary judgment
and control of discovery to weed out unmeritorious claims sooner
rather than later.”
Id., at 168–169.
Most recently, in
Swierkiewicz,
534
U. S. 506, we were faced with a case more similar to the
present one than the majority will allow. In discrimination cases,
our precedents require a plaintiff at the summary judgment stage to
produce either direct evidence of discrimination or, if the claim
is based primarily on circumstantial evidence, to meet the shifting
evidentiary burdens imposed under the framework articulated in
McDonnell Douglas Corp. v.
Green,
411 U. S. 792 (1973).
See,
e.g.,
Trans World Airlines, Inc. v.
Thurston,
469 U. S. 111, 121
(1985). Swierkiewicz alleged that he had been terminated on account
of national origin in violation of Title VII of the Civil Rights
Act of 1964. The Second Circuit dismissed the suit on the pleadings
because he had not pleaded a prima facie case of discrimination
under the
McDonnell Douglas standard.
We reversed in another unanimous opinion,
holding that “under a notice pleading system, it is not appropriate
to require a plaintiff to plead facts establishing a prima facie
case because the
McDonnell Douglas framework does not
apply in every employment discrimination case.”
Swierkiewicz, 534 U. S., at 511. We also observed that
Rule 8(a)(2) does not contemplate a court’s passing on the merits
of a litigant’s claim at the pleading stage. Rather, the
“simplified notice pleading standard” of the Federal Rules “relies
on liberal discovery rules and summary judgment motions to define
disputed facts and issues and to dispose of unmeritorious claims.”
Id., at 512; see Brief for United States et al. as
Amici Curiae in
Swierkiewicz v.
Sorema
N. A., O. T. 2001, No. 00–1853, p. 10 (stating that a
Rule 12(b)(6) motion is not “an appropriate device for testing the
truth of what is asserted or for determining whether a plaintiff
has any evidence to back up what is in the complaint” (internal
quotation marks omitted)).[
Footnote
7]
As in the discrimination context, we have
developed an evidentiary framework for evaluating claims under §1
of the Sherman Act when those claims rest on entirely
circumstantial evidence of conspiracy. See
Matsushita Elec.
Industrial Co. v.
Zenith Radio Corp.,
475 U. S. 574 (1986).
Under
Matsushita, a plaintiff’s allegations of an illegal
conspiracy may not, at the summary judgment stage, rest solely on
the inferences that may be drawn from the parallel conduct of the
defendants. In order to survive a Rule 56 motion, a §1 plaintiff
“must present evidence ‘that tends to exclude the possibility’ that
the alleged conspirators acted independently.’ ”
Id.,
at 588 (quoting
Monsanto Co. v.
Spray-Rite Service
Corp.,
465 U.
S. 752, 764 (1984)). That is, the plaintiff “must show that the
inference of conspiracy is reasonable in light of the competing
inferences of independent action or collusive action.” 475 U. S.,
at 588.
Everything today’s majority says would
therefore make perfect sense if it were ruling on a Rule 56 motion
for summary judgment and the evidence included nothing more than
the Court has described. But it should go without saying in the
wake of
Swierkiewicz that a heightened production burden
at the summary judgment stage does not translate into a heightened
pleading burden at the complaint stage. The majority rejects the
complaint in this case because—in light of the fact that the
parallel conduct alleged is consistent with ordinary market
behavior—the claimed conspiracy is “conceivable” but not
“plausible,”
ante, at 24. I have my doubts about the
majority’s assessment of the plausibility of this alleged
conspiracy. See Part III,
infra. But even if the
majority’s speculation is correct, its “plausibility” standard is
irreconcilable with Rule 8 and with our governing precedents. As we
made clear in
Swierkiewicz and
Leatherman, fear
of the burdens of litigation does not justify factual conclusions
supported only by lawyers’ arguments rather than sworn denials or
admissible evidence.
This case is a poor vehicle for the Court’s
new pleading rule, for we have observed that “in antitrust cases,
where ‘the proof is largely in the hands of the alleged
conspirators,’ … dismissals prior to giving the plaintiff ample
opportunity for discovery should be granted very sparingly.”
Hospital Building Co. v.
Trustees of Rex
Hospital,
425 U. S. 738, 746 (1976) (quoting
Poller v.
Columbia Broadcasting System, Inc.,
368 U. S. 464,
473 (1962)); see also
Knuth v.
Erie-Crawford Dairy
Cooperative Assn., 395 F. 2d 420, 423 (CA3 1968) (“The
‘liberal’ approach to the consideration of antitrust complaints is
important because inherent in such an action is the fact that all
the details and specific facts relied upon cannot properly be set
forth as part of the pleadings”). Moreover, the fact that the
Sherman Act authorizes the recovery of treble damages and
attorney’s fees for successful plaintiffs indicates that Congress
intended to encourage, rather than discourage, private enforcement
of the law. See
Radovich v.
National Football
League,
352 U.
S. 445, 454 (1957) (“Congress itself has placed the private
antitrust litigant in a most favorable position … . In the
face of such a policy this Court should not add requirements to
burden the private litigant beyond what is specifically set forth
by Congress in those laws”). It is therefore more, not less,
important in antitrust cases to resist the urge to engage in
armchair economics at the pleading stage.
The same year we decided
Conley,
Judge Clark wrote, presciently,
“I fear that every age must learn its lesson that
special pleading cannot be made to do the service of trial and that
live issues between active litigants are not to be disposed of or
evaded on the paper pleadings, i.e., the formalistic claims of the
parties. Experience has found no quick and easy short cut for
trials in cases generally
and antitrust cases in
particular.” Special Pleading in the “Big Case”? in
Procedure—The Handmaid of Justice 147, 148 (C. Wright & H.
Reasoner eds. 1965) (hereinafter Clark, Special Pleading in the Big
Case) (emphasis added).
In this “Big Case,” the Court succumbs to the
temptation that previous Courts have steadfastly resisted.[
Footnote 8] While the majority assures
us that it is not applying any “ ‘heightened’ ” pleading
standard, see
ante, at 23, n. 14, I shall now explain
why I have a difficult time understanding its opinion any other
way.
III
The Court does not suggest that
an agreement to do what the plaintiffs allege would be permissible
under the antitrust laws, see,
e.g.,
Associated Gen.
Contractors of Cal., Inc. v.
Carpenters,
459 U. S. 519, 526–527 (1983). Nor
does the Court hold that these plaintiffs have failed to allege an
injury entitling them to sue for damages under those laws, see
Brunswick Corp. v.
Pueblo Bowl-O-Mat, Inc.,
429 U. S. 477,
489–490 (1977). Rather, the theory on which the Court permits
dismissal is that, so far as the Federal Rules are concerned, no
agreement has been alleged at all. This is a mind-boggling
conclusion.
As the Court explains, prior to
the enactment of the Telecommunications Act of 1996 the law
prohibited the defendants from competing with each other. The new
statute was enacted to replace a monopolistic market with a
competitive one. The Act did not merely require the regional
monopolists to take affirmative steps to facilitate entry to new
competitors, see
Verizon Communications Inc. v.
Law
Offices of Curtis V. Trinko, LLP,
540 U. S. 398, 402
(2004); it also permitted the existing firms to compete with each
other and to expand their operations into previously forbidden
territory. See 47 U. S. C. §271. Each of the defendants
decided not to take the latter step. That was obviously an
extremely important business decision, and I am willing to presume
that each company acted entirely independently in reaching that
decision. I am even willing to entertain the majority’s belief that
any agreement among the companies was unlikely. But the plaintiffs
allege in three places in their complaint, ¶¶ 4, 51, 64, App. 11,
27, 30, that the ILECs did in fact agree both to prevent
competitors from entering into their local markets and to forgo
competition with each other. And as the Court recognizes, at the
motion to dismiss stage, a judge assumes “that all the allegations
in the complaint are true (even if doubtful in fact).”
Ante, at 8–9.
The majority circumvents this obvious obstacle
to dismissal by pretending that it does not exist. The Court admits
that “in form a few stray statements in the complaint speak
directly of agreement,” but disregards those allegations by saying
that “on fair reading these are merely legal conclusions resting on
the prior allegations” of parallel conduct.
Ante, at 18.
The Court’s dichotomy between factual allegations and “legal
conclusions” is the stuff of a bygone era,
supra, at 5–7.
That distinction was a defining feature of code pleading, see
generally Clark, The Complaint in Code Pleading, 35 Yale L. J.
259 (1925–1926), but was conspicuously abolished when the Federal
Rules were enacted in 1938. See
United States v.
Employing Plasterers Assn. of Chicago,
347 U. S. 186, 188
(1954) (holding, in an antitrust case, that the Government’s
allegations of effects on interstate commerce must be taken into
account in deciding whether to dismiss the complaint “[w]hether
these charges be called ‘allegations of fact’ or ‘mere conclusions
of the pleader’ ”);
Brownlee v.
Conine, 957
F. 2d 353, 354 (CA7 1992) (“The Federal Rules of Civil
Procedure establish a system of notice pleading rather than of fact
pleading, … so the happenstance that a complaint is ‘conclusory,’
whatever exactly that overused lawyers’ cliché means, does not
automatically condemn it”);
Walker Distributing
Co. v.
Lucky Lager Brewing Co., 323 F. 2d 1, 3–4
(CA9 1963) (“[O]ne purpose of Rule 8 was to get away from the
highly technical distinction between statements of fact and
conclusions of law …”);
Oil, Chemical & Atomic Workers
Int’l Union v.
Delta, 277 F. 2d 694, 697 (CA6
1960) (“Under the notice system of pleading established by the
Rules of Civil Procedure, … the ancient distinction between
pleading ‘facts’ and ‘conclusions’ is no longer significant”); 5
Wright & Miller §1218, at 267 (“[T]he federal rules do not
prohibit the pleading of facts or legal conclusions as long as fair
notice is given to the parties”). “Defendants entered into a
contract” is no more a legal conclusion than “defendant negligently
drove,” see Form 9;
supra, at 6. Indeed it is less of
one.[
Footnote 9]
Even if I were inclined to accept the Court’s
anachronistic dichotomy and ignore the complaint’s actual
allegations, I would dispute the Court’s suggestion that any
inference of agreement from petitioners’ parallel conduct is
“implausible.” Many years ago a truly great economist perceptively
observed that “[p]eople of the same trade seldom meet together,
even for merriment and diversion, but the conversation ends in a
conspiracy against the public, or in some contrivance to raise
prices.” A. Smith, An Inquiry Into the Nature and Causes of the
Wealth of Nations, in 39 Great Books of the Western World 55 (R.
Hutchins & M. Adler eds. 1952). I am not so cynical as to
accept that sentiment at face value, but I need not do so here.
Respondents’ complaint points not only to petitioners’ numerous
opportunities to meet with each other, Complaint ¶46, App.
23,[
Footnote 10] but also to
Notebaert’s curious statement that encroaching on a fellow
incumbent’s territory “might be a good way to turn a quick dollar
but that doesn’t make it right,”
id., ¶42, App. 22. What
did he mean by that? One possible (indeed plausible) inference is
that he meant that while it would be in his company’s economic
self-interest to compete with its brethren, he had agreed with his
competitors not to do so. According to the complaint, that is how
the Illinois Coalition for Competitive Telecom construed
Notebaert’s statement,
id., ¶44, App. 22 (calling the
statement “evidence of potential collusion among regional Bell
phone monopolies to not compete against one another and kill off
potential competitors in local phone service”), and that is how
Members of Congress construed his company’s behavior,
id.,
¶45, App. 23 (describing a letter to the Justice Department
requesting an investigation into the possibility that the ILECs’
“very apparent non-competition policy” was coordinated).
Perhaps Notebaert meant instead that
competition would be sensible in the short term but not in the long
run. That’s what his lawyers tell us anyway. See Brief for
Petitioners 36. But I would think that no one would know better
what Notebaert meant than Notebaert himself. Instead of permitting
respondents to ask Notebaert, however, the Court looks to other
quotes from that and other articles and decides that what he meant
was that entering new markets as a CLEC would not be a
“ ‘sustainable economic model.’ ”
Ante, at 22,
n. 13. Never mind that—as anyone ever interviewed knows—a
newspaper article is hardly a verbatim transcript; the writer
selects quotes to package his story, not to record a subject’s
views for posterity. But more importantly the District Court was
required at this stage of the proceedings to construe Notebaert’s
ambiguous statement in the plaintiffs’ favor.[
Footnote 11] See
Allen v.
Wright,
468
U. S. 737, 768, n. 1 (1984). The inference the statement
supports—that simultaneous decisions by ILECs not even to attempt
to poach customers from one another once the law authorized them to
do so were the product of an agreement—sits comfortably within the
realm of possibility. That is all the Rules require.
To be clear, if I had been the trial judge in
this case, I would not have permitted the plaintiffs to engage in
massive discovery based solely on the allegations in this
complaint. On the other hand, I surely would not have dismissed the
complaint without requiring the defendants to answer the charge
that they “have agreed not to compete with one another and
otherwise allocated customers and markets to one another.”[
Footnote 12] ¶51, App. 27. Even a
sworn denial of that charge would not justify a summary dismissal
without giving the plaintiffs the opportunity to take depositions
from Notebaert and at least one responsible executive representing
each of the other defendants.
Respondents in this case proposed a plan of
“ ‘phased discovery’ ” limited to the existence of the
alleged conspiracy and class certification. Brief for Respondents
25–26. Two petitioners rejected the plan.
Ibid. Whether or
not respondents’ proposed plan was sensible, it was an appropriate
subject for negotiation.[
Footnote 13] Given the charge in the complaint—buttressed
by the common sense of Adam Smith—I cannot say that the possibility
that joint discussions and perhaps some agreements played a role in
petitioners’ decisionmaking process is so implausible that
dismissing the complaint before any defendant has denied the charge
is preferable to granting respondents even a minimal opportunity to
prove their claims. See Clark, New Federal Rules 977 (“[T]hrough
the weapons of discovery and summary judgment we have developed new
devices, with more appropriate penalties to aid in matters of
proof, and do not need to force the pleadings to their
less appropriate function”).
I fear that the unfortunate result of the
majority’s new pleading rule will be to invite lawyers’ debates
over economic theory to conclusively resolve antitrust suits in the
absence of any evidence. It is no surprise that the antitrust
defense bar—among whom “lament” as to inadequate judicial
supervision of discovery is most “common,” see
ante, at
12—should lobby for this state of affairs. But “we must recall that
their primary responsibility is to win cases for their clients, not
to improve law administration for the public.” Clark, Special
Pleading in the Big Case 152. As we did in our prior decisions, we
should have instructed them that their remedy was to seek to amend
the Federal Rules—not our interpretation of them.[
Footnote 14] See
Swierkiewicz,
534 U. S., at 515;
Crawford-El v.
Britton,
523 U. S. 574, 595 (1998);
Leatherman, 507 U. S., at 168.
IV
Just a few weeks ago some of my
colleagues explained that a strict interpretation of the literal
text of statutory language is essential to avoid judicial decisions
that are not faithful to the intent of Congress.
Zuni Public
School Dist. No. 89 v.
Department of Education, 550
U. S. ___, ___ (2007) (Scalia, J., dissenting). I happen to believe
that there are cases in which other tools of construction are more
reliable than text, but I agree of course that congressional intent
should guide us in matters of statutory interpretation.
Id., at ___ (Stevens, J., concurring). This is a case in
which the intentions of the drafters of three important sources of
law—the Sherman Act, the Telecommunications Act of 1996, and the
Federal Rules of Civil Procedure—all point unmistakably in the same
direction, yet the Court marches resolutely the other way. Whether
the Court’s actions will benefit only defendants in antitrust
treble-damages cases, or whether its test for the sufficiency of a
complaint will inure to the benefit of all civil defendants, is a
question that the future will answer. But that the Court has
announced a significant new rule that does not even purport to
respond to any congressional command is glaringly obvious.
The transparent policy concern
that drives the decision is the interest in protecting antitrust
defendants—who in this case are some of the wealthiest corporations
in our economy—from the burdens of pretrial discovery.
Ante, at 11–13. Even if it were not apparent that the
legal fees petitioners have incurred in arguing the merits of their
Rule 12(b) motion have far exceeded the cost of limited discovery,
or that those discovery costs would burden respondents as well as
petitioners,[
Footnote 15]
that concern would not provide an adequate justification for this
law-changing decision. For in the final analysis it is only a lack
of confidence in the ability of trial judges to control discovery,
buttressed by appellate judges’ independent appraisal of the
plausibility of profoundly serious factual allegations, that could
account for this stark break from precedent.
If the allegation of conspiracy happens to be
true, today’s decision obstructs the congressional policy favoring
competition that undergirds both the Telecommunications Act of 1996
and the Sherman Act itself. More importantly, even if there is
abundant evidence that the allegation is untrue, directing that the
case be dismissed without even looking at any of that evidence
marks a fundamental—and unjustified—change in the character of
pretrial practice.
Accordingly, I respectfully dissent.
Footnote 1
See 9 W. Holdsworth, History of English Law
324–327 (1926).
Footnote 2
Gulfstream Aerospace Corp. v.
Mayacamas Corp.,
485 U. S. 271, 283
(1988).
Footnote 3
The Federal Rules do impose a “particularity”
requirement on “all averments of fraud or mistake,” Fed. Rule Civ.
Proc. 9(b), neither of which has been alleged in this case. We have
recognized that the canon of
expresio unius est exclusio
alterius applies to Rule 9(b). See
Leatherman v.
Tarrant Cty. Narcotics Intelligence and Coordination Unit,
507 U. S. 163, 168 (1993).
Footnote 4
SEC v.
Zandford,
535 U. S. 813, 818
(2002);
Davis v.
Monroe County Bd. of Ed.,
526 U. S. 629,
654 (1999);
Hartford Fire Ins. Co. v.
California,
509 U. S. 764,
811 (1993);
Brower v.
County of Inyo,
489 U. S. 593, 598
(1989);
Hughes v.
Rowe,
449 U. S. 5, 10 (1980)
(per curiam); McLain v.
Real Estate Bd. of
New Orleans, Inc.,
444 U. S. 232, 246
(1980);
Estelle v.
Gamble,
429 U. S. 97, 106 (1976);
Hospital Building Co. v.
Trustees of Rex
Hospital,
425 U. S. 738, 746 (1976);
Scheuer v.
Rhodes,
416 U. S. 232, 236 (1974);
Cruz v.
Beto,
405 U. S. 319, 322
(1972)
(per curiam); Haines v.
Kerner,
404 U. S. 519,
521 (1972)
(per curiam); Jenkins v.
McKeithen,
395 U. S. 411, 422
(1969) (plurality opinion); see also
Cleveland Bd. of Ed.
v.
Loudermill,
470 U. S. 532, 554
(1985) (Brennan, J., concurring in part and dissenting in part);
Hoover v.
Ronwin,
466 U. S. 558, 587
(1984) (Stevens, J., dissenting);
United Air Lines, Inc.
v.
Evans,
431 U. S. 553, 561,
n. 1 (1977) (Marshall, J., dissenting);
Simon v.
Eastern Ky. Welfare Rights Organization,
426 U. S. 26, 55,
n. 6 (1976) (Brennan, J., concurring in judgment).
Footnote 5
See,
e.g.,
EB Invs., LLC v.
Atlantis Development, Inc., 930 So. 2d 502, 507 (Ala.
2005);
Department of Health & Social Servs. v.
Native Village of Curyung, 151 P. 3d 388, 396 (Alaska
2006);
Newman v.
Maricopa Cty., 167 Ariz. 501,
503, 808 P. 2d 1253, 1255 (App. 1991
); Public Serv. Co. of
Colo. v.
Van Wyk, 27 P. 3d 377, 385–386 (Colo.
2001) (en banc);
Clawson v.
St. Louis
Post-Dispatch, LLC, 906 A. 2d 308, 312 (D. C. 2006);
Hillman Constr. Corp. v.
Wainer, 636 So. 2d
576, 578 (Fla. App. 1994);
Kaplan v.
Kaplan, 266
Ga. 612, 613, 469 S. E. 2d 198, 199 (1996);
Wright v.
Home Depot U. S. A., 111 Haw. 401, 406, 142
P. 3d 265, 270 (2006);
Taylor v.
Maile, 142
Idaho 253, 257, 127 P. 3d 156, 160 (2005);
Fink v.
Bryant, 2001–CC–0987, p. 4 (La. 11/28/01), 801
So. 2d 346, 349;
Gagne v.
Cianbro Corp., 431
A. 2d 1313, 1318–1319 (Me. 1981);
Gasior v.
Massachusetts Gen. Hospital, 446 Mass. 645, 647, 846
N. E. 2d 1133, 1135 (2006);
Ralph Walker, Inc. v.
Gallagher, 926 So. 2d 890, 893 (Miss. 2006);
Jones v.
Montana Univ. System, 337 Mont. 1, 7,
155 P. 3d 1247, ____ (2007);
Johnston v.
Nebraska
Dept. of Correctional Servs., 270 Neb. 987, 989, 709
N. W. 2d 321, 324 (2006);
Blackjack Bonding v.
Las Vegas Munic. Ct., 116 Nev. 1213, 1217, 14 P. 3d
1275, 1278 (2000);
Shepard v.
Ocwen Fed. Bank,
361 N. C. 137, 139, 638 S. E. 2d 197, 199 (2006);
Rose v.
United Equitable Ins. Co., 2001 ND 154,
¶10, 632 N. W. 2d 429, 434;
State ex rel. Turner v.
Houk, 112 Ohio St. 3d 561, 562, 2007–Ohio–814, ¶5, 862
N. E. 2d 104, 105
(per curiam); Moneypenney v.
Dawson, 2006 OK 53, ¶2, 141 P. 3d 549, 551;
Gagnon v.
State, 570 A. 2d 656, 659
(R. I. 1990);
Osloond v.
Farrier, 2003 SD
28, ¶4, 659 N. W. 2d 20, 22
(per curiam);
Smith v.
Lincoln Brass Works, Inc., 712
S. W. 2d 470, 471 (Tenn. 1986);
Association of Haystack
Property Owners v.
Sprague, 145 Vt. 443, 446, 494
A. 2d 122, 124 (1985);
In re Coday, 156 Wash. 2d
485, 497, 130 P. 3d 809, 815 (2006) (en banc);
Haines
v.
Hampshire Cty. Comm’n, 216 W. Va. 499, 502, 607
S. E. 2d 828, 831 (2004);
Warren v.
Hart,
747 P. 2d 511, 512 (Wyo. 1987); see also
Malpiede v.
Townson, 780 A. 2d 1075, 1082–1083 (Del. 2001)
(permitting dismissal only “where the court determines with
reasonable certainty that the plaintiff could prevail on no set of
facts that may be inferred from the well-pleaded allegations in the
complaint” (internal quotation marks omitted));
Canel v.
Topinka, 212 Ill. 2d 311, 318, 818 N. E. 2d 311, 317
(2004) (replacing “appears beyond doubt” in the
Conley
formulation with “is clearly apparent”);
In re Young,
522 N. E. 2d 386, 388 (Ind. 1988)
(per curiam)
(replacing “appears beyond doubt” with “appears to a certainty”);
Barkema v.
Williams Pipeline Co., 666 N. W.
2d 612, 614 (Iowa 2003) (holding that a motion to dismiss should be
sustained “only when there exists no conceivable set of facts
entitling the non-moving party to relief”);
Pioneer
Village v.
Bullitt Cty., 104 S. W. 3d 757, 759
(Ky. 2003) (holding that judgment on the pleadings should be
granted “if it appears beyond doubt that the nonmoving party cannot
prove any set of facts that would entitle him/her to relief”);
Corley v.
Detroit Bd. of Ed., 470 Mich. 274, 277,
681 N. W. 2d 342, 345 (2004)
(per curiam) (holding
that a motion for judgment on the pleadings should be granted only
“ ‘if no factual development could possibly justify
recovery’ ”);
Oberkramer v.
Ellisville, 706
S. W. 2d 440, 441 (Mo. 1986) (en banc) (omitting the words
“beyond doubt” from the
Conley formulation);
Colman v.
Utah State Land Bd., 795 P. 2d
622, 624 (Utah 1990) (holding that a motion to dismiss is
appropriate “only if it clearly appears that [the plaintiff] can
prove no set of facts in support of his claim”);
NRC Management
Servs. Corp. v.
First Va. Bank-Southwest, 63 Va. Cir.
68, 70 (2003) (“The Virginia standard is identical [to the
Conley formulation], though the Supreme Court of Virginia
may not have used the same words to describe it”).
Footnote 6
The majority is correct to say that what the
Federal Rules require is a “ ‘showing’ ” of entitlement
to relief.
Ante, at 8, n. 3. Whether and to what
extent that “showing” requires allegations of fact will depend on
the particulars of the claim. For example, had the amended
complaint in this case alleged
only parallel conduct, it
would not have made the required “showing.” See
supra, at
1. Similarly, had the pleadings contained
only an
allegation of agreement, without specifying the nature or object of
that agreement, they would have been susceptible to the charge that
they did not provide sufficient notice that the defendants may
answer intelligently. Omissions of that sort instance the type of
“bareness” with which the Federal Rules are concerned. A
plaintiff’s inability to persuade a district court that the
allegations actually included in her complaint are “plausible” is
an altogether different kind of failing, and one that should not be
fatal at the pleading stage.
Footnote 7
See also 5 Wright & Miller §1202, at
89–90 (“[P]leadings under the rules simply may be a general summary
of the party’s position that is sufficient to advise the other
party of the event being sued upon, to provide some guidance in a
subsequent proceeding as to what was decided for purposes of res
judicata and collateral estoppel, and to indicate whether the case
should be tried to the court or to a jury. No more is demanded of
the pleadings than this; indeed, history shows that no more can be
performed successfully by the pleadings” (footnotes omitted)).
Footnote 8
Our decision in
Dura Pharmaceuticals,
Inc. v.
Broudo,
544 U. S. 336 (2005), is
not to the contrary. There, the plaintiffs failed adequately to
allege loss causation, a required element in a private securities
fraud action. Because it alleged nothing more than that the prices
of the securities the plaintiffs purchased were artificially
inflated, the
Dura complaint failed to “provide the
defendants with notice of what the relevant economic loss might be
or of what the causal connection might be between that loss and the
[alleged] misrepresentation.”
Id., at 347. Here, the
failure the majority identifies is not a failure of notice—which
“notice pleading” rightly condemns—but rather a failure to satisfy
the Court that the agreement alleged might plausibly have occurred.
That being a question not of
notice but of
proof,
it should not be answered without first hearing from the defendants
(as apart from their lawyers).
Similarly, in
Associated Gen. Contractors
of Cal., Inc. v.
Carpenters,
459 U. S. 519 (1983), in which we also
found an antitrust complaint wanting, the problem was not that the
injuries the plaintiffs alleged failed to satisfy some threshold of
plausibility, but rather that the injuries
as alleged were
not “the type that the antitrust statute was intended to
forestall.”
Id., at 540; see
id., at 526 (“As the
case comes to us, we must assume that the Union can prove the facts
alleged in its amended complaint. It is not, however, proper to
assume that the Union can prove facts that it has not alleged or
that the defendants have violated the antitrust laws in ways that
have not been alleged”).
Footnote 9
The Court suggests that the allegation of an
agreement, even if credited, might not give the notice required by
Rule 8 because it lacks specificity.
Ante, at 18–19,
n. 10. The remedy for an allegation lacking sufficient
specificity to provide adequate notice is, of course, a Rule 12(e)
motion for a more definite statement. See
Swierkiewicz v.
Sorema N. A., 534
U. S. 506, 514 (2002). Petitioners made no such motion and
indeed have conceded that “[o]ur problem with the current complaint
is not a lack of specificity, it’s quite specific.” Tr. of Oral
Arg. 14. Thus, the fact that “the pleadings mentioned no specific
time, place, or persons involved in the alleged conspiracies,”
ante, at 18, n. 10, is, for our purposes,
academic.
Footnote 10
The Court describes my reference to the
allegation that the defendants belong to various trade associations
as “playfully” suggesting that the defendants conspired to restrain
trade.
Ante, at 20, n. 12. Quite the contrary: an
allegation that competitors meet on a regular basis, like the
allegations of parallel conduct, is consistent with—though not
sufficient to prove—the plaintiffs’ entirely serious and
unequivocal allegation that the defendants entered into an unlawful
agreement. Indeed, if it were true that the plaintiffs “rest their
§1 claim on descriptions of parallel conduct and not on any
independent allegation of actual agreement among the ILECs,”
ante, at 18, there would have been no purpose in including
a reference to the trade association meetings in the amended
complaint.
Footnote 11
It is ironic that the Court seeks to justify
its decision to draw factual inferences in the defendants’ favor at
the pleading stage by citing to a rule of evidence,
ante,
at 22, n. 13. Under Federal Rule of Evidence 201(b), a
judicially noticed fact “must be one not subject to reasonable
dispute in that it is either (1) generally known within the
territorial jurisdiction of the trial court or (2) capable of
accurate and ready determination by resort to sources whose
accuracy cannot reasonably be questioned.” Whether Notebaert’s
statements constitute evidence of a conspiracy is hardly beyond
reasonable dispute.
Footnote 12
The Court worries that a defendant seeking to
respond to this “conclusory” allegation “would have little idea
where to begin.”
Ante, at 19, n. 10. A defendant
could, of course, begin by either denying or admitting the
charge.
Footnote 13
The potential for “sprawling, costly, and
hugely time-consuming” discovery,
ante, at 13, n. 6,
is no reason to throw the baby out with the bathwater. The Court
vastly underestimates a district court’s case-management arsenal.
Before discovery even begins, the court may grant a defendant’s
Rule 12(e) motion; Rule 7(a) permits a trial court to order a
plaintiff to reply to a defendant’s answer, see
Crawford-El v.
Britton,
523 U. S. 574, 598 (1998); and Rule 23
requires “rigorous analysis” to ensure that class certification is
appropriate,
General Telephone Co. of Southwest v.
Falcon,
457
U. S. 147, 160 (1982); see
In re Initial Public
Offering Securities Litigation, 471 F. 3d 24 (CA2 2006)
(holding that a district court may not certify a class without
ruling that each Rule 23 requirement is met, even if a requirement
overlaps with a merits issue). Rule 16 invests a trial judge with
the power, backed by sanctions, to regulate pretrial proceedings
via conferences and scheduling orders, at which the parties may
discuss,
inter alia, “the elimination of frivolous claims
or defenses,” Rule 16(c)(1); “the necessity or desirability of
amendments to the pleadings,” Rule 16(c)(2); “the control and
scheduling of discovery,” Rule 16(c)(6); and “the need for adopting
special procedures for managing potentially difficult or protracted
actions that may involve complex issues, multiple parties,
difficult legal questions, or unusual proof problems,” Rule
16(c)(12). Subsequently, Rule 26 confers broad discretion to
control the combination of interrogatories, requests for
admissions, production requests, and depositions permitted in a
given case; the sequence in which such discovery devices may be
deployed; and the limitations imposed upon them. See 523 U. S., at
598–599. Indeed, Rule 26(c) specifically permits a court to take
actions “to protect a party or person from annoyance,
embarrassment, oppression, or undue burden or expense” by, for
example, disallowing a particular discovery request, setting
appropriate terms and conditions, or limiting its scope.
In short, the Federal Rules contemplate that
pretrial matters will be settled through a flexible process of give
and take, of proffers, stipulations, and stonewalls, not by having
trial judges screen allegations for their plausibility
vel
non without requiring an answer from the defendant. See
Societe Internationale pour Participations Industrielles et
Commerciales, S. A. v.
Rogers,
357 U. S. 197, 206
(1958) (“Rule 34 is sufficiently flexible to be adapted to the
exigencies of particular litigation”). And should it become
apparent over the course of litigation that a plaintiff’s filings
bespeak an
in terrorem suit, the district court has at its
call its own
in terrorem device, in the form of a wide
array of Rule 11 sanctions. See Rules 11(b), (c) (authorizing
sanctions if a suit is presented “for any improper purpose, such as
to harass or to cause unnecessary delay or needless increase in the
cost of litigation”); see
Business Guides, Inc. v.
Chromatic Communications Enterprises, Inc.,
498 U. S. 533 (1991)
(holding that Rule 11 applies to a represented party who signs a
pleading, motion, or other papers, as well as to attorneys);
Atkins v.
Fischer, 232 F. R. D. 116,
126 (DC 2005) (“As possible sanctions pursuant to Rule 11, the
court has an arsenal of options at its disposal”).
Footnote 14
Given his “background in antitrust law,”
ante, at 13, n. 6, Judge Easterbrook has recognized
that the most effective solution to discovery abuse lies in the
legislative and rulemaking arenas. He has suggested that the remedy
for the ills he complains of requires a revolution in the rules of
civil procedure:
“Perhaps a system in which judges
pare away issues and focus on investigation is too radical to
contemplate in this country—although it prevailed here before 1938,
when the Federal Rules of Civil Procedure were adopted. The change
could not be accomplished without abandoning notice pleading,
increasing the number of judicial officers, and giving them more
authority … . If we are to rule out judge-directed discovery,
however, we must be prepared to pay the piper. Part of the price is
the high cost of unnecessary discovery—impositional and otherwise.”
Discovery as Abuse, 69 B. U. L. Rev. 635, 645 (1989).
Footnote 15
It would be quite wrong, of course, to assume
that dismissal of an antitrust case after discovery is costless to
plaintiffs. See Fed. Rule Civ. Proc. 54(d)(1) (“[C]osts other than
attorneys’ fees shall be allowed as of course to the prevailing
party unless the court otherwise directs”).
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