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The AMERICAN EMERY WHEEL WORKS, Defendant, Appellee.
Thomas E. Durkin, Jr., Newark, N. J., M. Louis Abedon, Providence, R. I., on the brief, for appellant.
Francis V. Reynolds, Providence, R. I., Richard P. McMahon, Providence, R. I., on the brief, for appellee.
Whit Mason, a citizen of Mississippi, filed his complaint in the United States District Court for the District of Rhode Island against The American Emery Wheel Works, a Rhode Island corporation. The case was one in tort for personal injuries alleged to have been suffered by the plaintiff in Mississippi as a result of negligent misfeasance by the defendant in putting out in commerce without adequate care and inspection, a dangerously defective emery wheel. According to the allegations of the complaint, at some time prior to the date of the accident defendant negligently manufactured, inspected and tested a certain emery wheel designed for attachment to a bench grinder; that due to such negligence the emery wheel was not reasonably fit for the use for which it was intended, but on the contrary subjected to a risk of personal injury all persons lawfully using a bench grinder with the emery wheel attached; that on February 10, 1953, the plaintiff, while in the scope of his employment by T. H. Pearce Company, Forrest County, Mississippi, was operating a bench grinder with an emery wheel attachment manufactured by the defendant; that the said emery wheel, while being so used, did disintegrate and shatter, inflicting serious bodily injury to the plaintiff as a proximate result of defendant's said negligence.
On the face of the complaint it did not specifically appear that plaintiff was not in privity of contract with defendant. The answer of defendant, in addition to denying negligence, and denying that it had manufactured the particular emery wheel which had caused plaintiff's injuries, also set forth as a "First Defense" that the complaint failed to state a claim upon which relief might be granted, and as a "Fourth Defense" that defendant "owed no duty to the said plaintiff as there is no privity of contract between the plaintiff and the defendant."
The case came up for trial before a jury. Plaintiff's evidence tended to show that a certain emery wheel, supposed to withstand a rotation speed of 3600 r. p. m., was purchased by the Hoover Company, a New Jersey corporation, from the defendant for attachment to a bench grinding machine made by the Hoover Company; that the Hoover Company affixed to the said bench grinding machine, with emery wheel attached, a label indicating that the bench grinder had been manufactured by Miller Falls Company, a Massachusetts corporation; that said bench grinder, having been packed in a crate, and without being removed therefrom, was successively sold by the Hoover Company to Miller Falls Company, by the latter to Komp Equipment Company, and finally by Komp Equipment Company to T. H. Pearce Company, the plaintiff's employer; that the said grinding machine was unpacked from its original package and affixed to plaintiff's work bench; that while plaintiff was using it in the ordinary and proper manner the emery wheel disintegrated and exploded in plaintiff's face, causing the injuries complained of.
At the conclusion of the plaintiff's case defendant made an oral motion to dismiss the complaint under Rule 41(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. This motion to dismiss was granted by the district court, and an order was entered dismissing the complaint, from which the present appeal was taken.
Since the injury was inflicted in Mississippi, the district court, no doubt correctly under now familiar authorities, deemed itself to be obliged to apply the Mississippi local law to determine the tort liability, if any, of a manufacturer to one not in privity of contract with him. See Trowbridge v. Abrasive Co. of Philadelphia, 3 Cir., 1951, 190 F.2d 825, 827-828. The district court came to the conclusion "reluctantly" that it was bound by the Mississippi law as declared in Ford Motor Co. v. Myers, 1928, 151 Miss. 73, 117 So. 362; that the "harsh rule" of Mississippi as so declared, "contrary to the great weight of authority" elsewhere, was that a manufacturer was not liable for negligence in the manufacture of appliances which could and would become highly dangerous when put to the uses for which they are intended, where there is no privity of contract between the user and the manufacturer.
Ford Motor Co. v. Myers, supra, was the only Mississippi case relied upon, or even referred to, by the district court. In that case the Supreme Court of Mississippi, in a half-page opinion, did in fact apply what was at one time the prevailing rule, in holding that Ford Motor Company as the manufacturer of a truck owed no duty of care to a remote subvendee of the truck who was injured when the truck collapsed and plunged into a ditch because of a defect which could have been detected by reasonable inspection by the manufacturer before the vehicle left the factory.
"took as his starting point the supposed general principle that a manufacturer is not liable to third persons, not in privity of contract with him, for bodily injuries resulting from his negligence in manufacturing the article. He was confronted with decided cases imposing liability, in favor of third parties not in privity of contract, upon negligent manufacturers of drugs, foodstuffs, explosives, firearms. These cases he treated as falling within an exception, expressed in a conglomerate formula designed to cover them and no other: `* * * an act of negligence of a manufacturer or vendor which is eminently dangerous to the life or health of mankind, and which is committed in the preparation or sale of an article intended to preserve, destroy, or affect human life, is actionable by third parties who suffer from the negligence.' Cardozo, J., in MacPherson v. Buick Motor Co., [1916, 217 N.Y. 382, 111 N.E. 1050, L.R.A.1916F, 696] convincingly argued that these so-called exceptions were merely prime illustrations, and by no means the only ones, of the more basic principle of torts that actors generally, including manufacturers, have a duty of care not to create unreasonable risks of bodily injury to others within the zone of foreseeable danger."
"That case was decided in 1920, which was before the general abandonment of the old rule of non-liability where neither direct nor indirect privity existed. It is barely possible that had the court passed upon the question now before us, it might have upheld the old rule, even though weighted down with many exceptions. However, as there are no controlling Iowa decisions on the precise question before us for decision, we feel that we should not attribute to Iowa a doctrine that has been repudiated by most jurisdictions; we feel justified in concluding that the Supreme Court of Iowa would today adopt the modern rule, which is well expressed in Restatement of the Law of Torts, Sec. 395: `A manufacturer who fails to exercise reasonable care in the manufacture of a chattel which, unless carefully made, he should recognize as involving an unreasonable risk of causing substantial bodily harm to those who lawfully use it for a purpose for which it is manufactured and to those whom the supplier should expect to be in the vicinity of its probable use, is subject to liability for bodily harm caused to them by its lawful use in a manner and for a purpose for which it is manufactured.'"
See also General Motors Corp. v. Johnson, 4 Cir., 1943, 137 F.2d 320; International Derrick & Equipment Co. v. Croix, 5 Cir., 1957, 241 F.2d 216.
Of course it is not necessary that a case be explicitly overruled in order to lose its persuasive force as an indication of what the law is. A decision may become so overloaded with illogical exceptions that by erosion of time it may lose its persuasive or binding force even in the inferior courts of the same jurisdiction. And where, as in Ford Motor Co. v. Myers, the Supreme Court of Mississippi, twenty or thirty years ago, applied an old rule which has since been generally discredited elsewhere, it is relevant to consider what the Supreme Court of Mississippi has subsequently said on the point. See "Note on the Ways of Ascertaining State Law," Hart & Wechsler, The Federal Courts and the Federal System 628-30 (1953). We think that appellant herein rightly stresses the importance of E. I. Du Pont De Nemours & Co. v. Ladner, 1954, 221 Miss. 378, 73 So.2d 249. In that very recent case, the Supreme Court of Mississippi was able to dispose of the particular issue on another ground without the necessity of expressly overruling its earlier decision in Ford Motor Co. v. Myers. But the court did take occasion, in a long and careful opinion, to indicate its awareness of the modern trend in the area, including the decision of the Supreme Judicial Court of Massachusetts in Carter v. Yardley & Co., supra; it stated that, whatever may have been the rule originally, "the principle seems now to be well established by the decisions of many courts that a person who has had no direct contractual relations with a manufacturer may nevertheless recover from such manufacturer for damages to property caused by the negligence of the manufacturer in the same manner that such a remote vendee or other third person can recover for personal injuries." 73 So.2d at page 254. And it quoted, with apparent approval, many more recent authorities in support of the "modern doctrine". (Ibid.) We think it is fair to infer from this latest expression by the Supreme Court of Mississippi that it is prepared to reconsider and revise the rule it applied in Ford Motor Co. v. Myers whenever it may have before it a case that squarely presents the issue. We have no doubt that when this occasion does come to pass, the Supreme Court of Mississippi will declare itself in agreement with the more enlightened and generally accepted modern doctrine.
A judgment will be entered vacating the order of the District Court, dismissing the complaint and remanding the case to the District Court for further proceedings not inconsistent with this opinion.
I concur in the opinion of the court but I am constrained to comment briefly. We were informed in oral argument by counsel for the appellee that the district court in deciding this case had before it both the Ford and the Du Pont decisions. Moreover, the district court knew from the official Mississippi report that the MacPherson case, then approximately twelve years old, had been considered and rejected by the Mississippi Supreme Court sitting in the Ford case. Therefore, "reluctantly" Judge Day adopted the Ford holding since it, as the only binding and conclusive statement of Mississippi law on the issue, had not been expressly modified or overruled. Certainly the existence of the Ford case presented to the trial judge a question different from that in the Larrabee case, cited in the opinion of the court today, where there was no controlling Iowa decision on the precise question in issue.
We, however, have inferred from pure dicta in the Du Pont case and from the status of the law elsewhere on this issue that Mississippi is prepared to discard the Ford rule and adopt the modern rule. I believe this is a sound inference since the dicta in the Du Pont case, though not expressly mentioning Ford, is sufficiently clear and the Ford rule is sufficiently outdated. Yet, in doing so I realize that we present a difficult problem for district judges when they must apply the Erie doctrine to situations wherein the considerations as between conflicting holdings and dicta are not as clearly defined as they are here. The question of how clear dicta must be to prevail over a prior controlling decision does not lend itself to easy solution.

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Although the introduction of the Bill C-45 amendments 10 years ago left many employers concerned that criminal prosecutions of health and safety matters might become the norm, no such floodgates have been opened. While the Criminal Code is indeed more readily applicable in the occupational health and safety sphere than it was a decade ago, the quasi-criminal provincial prosecution mechanism (as provided for under provincial occupational health and safety legislation) remains predominant; and the last 10 years have demonstrated that criminal charges will not be pursued except in very serious circumstances. More specifically, the past decade has seen only nine prosecutions commenced under the Bill C-45 amendments, with only five of those cases resulting in convictions or guilty pleas under the Criminal Code.
R. v. Fantini (2005) – Mr. Fantini, a supervisor, was charged after a trench collapsed, killing a worker under his supervision. In exchange for a guilty plea to a charge under the Occupational Health and Safety Act and a fine of $50,000, the Criminal Code charge was withdrawn.
R. v. Transpavé (2008 QCCQ 1598) – Transpavé was charged as an employer after one of its workers was fatally crushed by a cement-block packing machine. Unfortunately, the safety system intended to protect the worker had been disabled, without the knowledge of Transpavé. The company pleaded guilty to the offence and, in light of some $750,000 spent on health and safety improvements as a result of the incident, was fined the fairly restrained amount of $100,000.
R. v. Scrocca (2010 QCCQ) – Mr. Scrocca was the owner and operator of a backhoe which malfunctioned, pinning and fatally injuring another worker. An investigation determined that the backhoe’s brakes were functioning at less than 30% of capacity, and that the machine had not been serviced in five years. At the conclusion of trial, Mr. Scrocca was convicted, and received a conditional sentence of 2 years less a day, to be served in the community.
R. v. Gagné (2010) – Mr. Gagné, a train operator, was charged after the train he was controlling collided with track maintenance vehicles, killing one worker and injuring three others. Mr. Gagné’s trial concluded with an acquittal.
Steelworkers v. Weyerhauser (2011) – After a worker was asphyxiated while clearing debris in a sawmill, a WorkSafe BC investigation determined that management had violated OH&S regulations “willingly or with reckless disregard” and had a high level of knowledge of the hazards faced by the worker. Although the police recommended criminal charges, the Crown refused to prosecute in light of insufficient evidence. Consequently, the Steelworkers’ Union commenced a private prosecution after convincing a British Columbia court that there was sufficient evidence to support the alleged contraventions. However, those charges were subsequently stayed, citing no reasonable prospect of conviction.
R. v. Millennium Crane (2011) – A crane owned by Millennium Crane fell into a hole, crushing a worker to death. Although Bill C-45 charges were laid in 2010, they were subsequently withdrawn, citing no reasonable prospect of conviction.
R. v. Peck (2011) – Peck, a personal support worker in a nursing home, was charged after a nursing home resident died of a fall while being moved. The charge was subsequently withdrawn, citing no reasonable prospect of conviction.
R. v. Hritchuk (2012 QCCS 4525) – Mr. Hritchuk, a manager at an automobile service facility, was charged after two workers were seriously burned while using a hand-crafted fuel pump. After pleading guilty to a different charge under the Criminal Code, Mr. Hritchuk received an absolute discharge.
R. v. Metron Construction Corporation (2013 ONCA 541) – Metron Construction Corporation was charged after four of its employees fell to their deaths from a swing-stage platform. The company pleaded guilty to one count of criminal negligence, and was initially fined $200,000 plus a 25% Victim Fine Surcharge. The Crown successfully appealed that fine to the Ontario Court of Appeal, where the amount was increased to $750,000 plus a 25% Victim Fine Surcharge.
There has also been one other workplace-related Criminal Code conviction in the past year, R. v. Lilgert(2013 BCSC 1329), albeit under the criminal negligence provisions instead of the Bill C-45 provisions. In that case, Mr. Lilgert, the navigation officer of the Queen of the North ferry, was sentenced to four years’ imprisonment for his role in the ferry’s sinking and the loss of two passengers who were presumed drowned.
While there have been relatively few Bill C-45 prosecutions (and even fewer convictions) since the amendments were introduced 10 years ago, the recent decision in Metron Construction Corporation indicates that Bill C-45 may have finally found its “teeth”; and it will be interesting to see what trend OH&S criminal prosecutions follow over the next 10 years.
Regardless of the frequency with which Bill C-45 is invoked in the years ahead, employers must remain vigilant in taking all precautions reasonable in the circumstances to protect the health and safety of their workers—not only as a matter of avoiding liability under Bill C-45 and achieving compliance with provincial health and safety legislation, but also as a matter of good business practice.
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Justia › US Law › US Case Law › US Supreme Court › Volume 215 › Kuhn v. Fairmont Coal Co.
When administering state laws and determining rights accruing thereunder, the jurisdiction of the federal court is an independent one, coordinate and concurrent with, and not subordinate to, the jurisdiction of the state courts.
Rules of law relating to real estate, so established by state decisions rendered before the rights of the parties accrued as to have become rules of property and action, are accepted by the federal court, but where the law has not thus been settled, it is the right and duty of the federal court to exercise its own judgment, as it always does in cases depending on doctrines of commercial law and general jurisprudence.
Even in questions in which the federal court exercises its own judgment, the federal court should, for the sake of comity and to avoid confusion, lean to agreement with the state court if the question is balanced with doubt.
When determining the effect of conveyances or written instruments between private parties, citizens of different states, it is the right and duty of the federal court to exercise its own independent judgment where no authoritative state decision had been rendered by the state court before the rights of the parties had accrued and become final.
The federal court is not bound by a decision of the state court, rendered after the deed involved in the case in the federal court was made and after the injury was sustained, holding that there is no implied reservation in a deed conveying subsurface coal and the right to mine it to leave enough coal to support the surface in its original position.
This case is here on a question propounded under the authority of the Judiciary Act of March 3d 1891, relating to the jurisdiction of the courts of the United States. 26 Stat. 828, c. 517, § 6. The facts out of which the question arises are substantially as will be now stated.
and make all necessary structures, roads, ways excavations, air shafts, drains, drain ways and openings necessary or convenient for the mining and removal of said coal and the coal from coterminous and neighboring lands to market."
The present action of trespass on the case was brought January 18th, 1906. The declaration alleged that the coal covered by the above deed passed to the defendant, the Fairmont Coal Company, a West Virginia corporation, on the ___ of January, 1906; that the plaintiff Kuhn was entitled of right to have all his surface and other strata overlying the coal supported in its natural state, either by pillars or blocks of coal or by artificial support; that, on the day named, the defendant company mined and removed coal from under the land, leaving, however, large blocks or pillars of coal as a means of supporting the overlying surface; that the coal company, disregarding the plaintiff's rights, did knowingly, willfully, and negligently, without making any compensation therefor, or for the damages arising therefrom, mine and remove all of said blocks and pillars of coal so left, by reason whereof and because of the failure to provide any proper or sufficient artificial or other support for the overlying surface, the plaintiff's surface land, or a large portion thereof, was caused to fall, and that it was cracked, broken, and rent, causing large holes and fissures to appear upon the surface, and destroying the water and watercourses.
The contract under which the title to the coal originally passed was executed in West Virginia, and the plaintiff's cause of action arose in that state.
A demurrer to the declaration was sustained by the circuit court, an elaborate opinion being delivered by Judge Dayton. 152 F. 1013. The case was then taken upon writ of error to the circuit court of appeals.
Virginia, an action, similar in all respects to the present one, against the Fairmont Coal Company, the successor of Camden. His rights arose from a deed almost identical with that executed by Kuhn to Camden. That case was ruled in favor of the coal company, and subsequently was taken to the Supreme Court of West Virginia, which announced its opinion therein in November, 1905. A petition for rehearing having been filed, the judgment was stayed. But the petition was overruled March 27th, 1906, on which day, after Kuhn's suit was brought, the decision previously announced in the Griffin case became final under the rules of the supreme court of the state. Griffin v. Fairmont Coal Co., 59 W.Va. 480.
The contention by the coal company in the court below was that, as the decision in the Griffin case covered substantially the same question as the one here involved, it was the duty of the federal court to accept that decision as controlling the rights of the present parties, whatever might be its own opinion as to the law applicable to this case. T he contention of Kuhn was that the federal court was under a duty to determine the rights of the present parties upon its own independent judgment, giving to the decision in the state court only such weight as should be accorded to it according to the established principles in the law of contracts and of sound reasoning; also, that the federal court was not bound by a decision of the state court in an action of trespass on the case for a tort not involving the title to land.
in fact identical, that case having been decided after the contract upon which defendant relies was executed, after the injury complained of was sustained, and after this action was instituted?"
"1. Deeds conveying coal with rights of removal should be construed in the same way as other written instruments, and the intention of the parties, as manifest by the language used in the deed itself, should govern."
"2. The vendor of land may sell and convey his coal, and grant to the vendee the right to enter upon and under said land, and to mine, excavate, and remove all of the coal purchased and paid for by him, and, if the removal of the coal necessarily causes the surface to subside or break, the grantor cannot be heard to complain thereof."
"3. Where a deed conveys the coal under a tract of land, together with the right to enter upon and under said land, and to mine, excavate, and remove all of it, there is no implied reservation in such an instrument that the grantee must leave enough coal to support the surface in its original position."
"4. It is the duty of the court to construe contracts as they are made by the parties thereto, and to give full force and effect to the language used, when it is clear, plain, simple, and unambiguous."
"5. It is only where the language of a contract is ambiguous and uncertain, and susceptible of more than one construction, that a court may, under the well established rules of construction, interfere to reach a proper construction and make certain that which, in itself, is uncertain."
"only after the holding of the state court in the Griffin case could it be said that the narrow question therein decided had become a rule of property in that state."
In this view of the case, was not the federal court bound to determine the dispute between the parties according to its own independent judgment as to what rights were acquired by them under the contract relating to the coal? If the federal court was of opinion that the coal company was under a legal obligation, while taking out the coal in question, to use such precautions and to proceed in such way as not to destroy or materially injure the surface land, was it bound to adjudge the contrary simply because, in a single case, to which Kuhn was not a party, and which was determined after the right of the present parties had accrued and become fixed under their contract, and after the injury complained of had occurred, the state court took a different view of the law? If, when the jurisdiction of the federal court was invoked, Kuhn, the citizen of Ohio, had, in its judgment, a valid cause of action against the coal company for the injury of which he complained, was that court obliged to subordinate its view of the law to that expressed by the state court?
In cases too numerous to be here cited, the general subject suggested by these questions has been considered by this Court. It will be both unnecessary and impracticable to enter upon an extended review of those cases. They are familiar to the profession. But, in the course of this opinion, we will refer to a few of them.
"It may be said generally that, wherever the decisions of the state courts relate to some law of a local character, which may have become established by those courts, or has always been a part of the law of the state, that the decisions upon the subject are usually conclusive, and always entitled to the highest respect of the federal courts. The whole of this subject has recently been very ably reviewed in the case of Burgess v. Seligman, 107 U. S. 20. Where such local law or custom has been established by repeated decisions of the highest courts of a state, it becomes also the law governing the courts of the United States sitting in that state."
See also Jackson v. Chew, 12 Wheat. 153.
Up to the present time, these principles have not been modified or disregarded by this Court. On the contrary, they have been reaffirmed without substantial qualification in many subsequent cases, some of which are here cited. East Alabama Ry. Co. v. Doe, 114 U. S. 340; Bucher v. Cheshire R. Co. 125 U. S. 555; Gormly v. Clark, 134 U. S. 338; B. & O. R. Co. v. Baugh, 149 U. S. 368; Folsom v. Ninety-Six, 159 U. S. 611; Barber v. Pittsburgh &c. Ry., 166 U. S. 83; Stanly County v. Coler, 190 U. S. 437; Julian v. Central Trust Co., 193 U. S. 93; Comm'rs &c. v. Bancroft, 203 U. S. 112; Presidio County v. Noel-Young Bond Co., 212 U. S. 58.
We take it, then, that it is no longer to be questioned that the federal courts, in determining cases before them, are to be guided by the following rules: 1. When administering state laws and determining rights accruing under those laws, the jurisdiction of the federal court is an independent one, not subordinate to, but coordinate and concurrent with, the jurisdiction of the state courts. 2. Where, before the rights of the parties accrued, certain rules relating to real estates have been so established by state decisions as to become rules of property and action in the state, those rules are accepted by the federal court as authoritative declarations of the law of the state. 3. But where the law of the state has not been thus settled, it is not only the right, but the duty, of the federal court to exercise its own judgment, as it also always does when the case before it depends upon the doctrines of commercial law and general jurisprudence. 4. So, when contracts and transactions are entered into and rights have accrued under a particular state of the local decisions, or when there has been no decision by the state court on the particular question involved, then the federal courts properly claim the right to give effect to their own judgment as to what is the law of the state applicable to the case, even where a different view has been expressed by the state court after the rights of parties accrued. But even in such cases, for the sake of comity and to avoid confusion, the federal court should always lean to an agreement with the state court if the question is balanced with doubt.
The court took care, in Burgess v. Seligman, to say that the federal court would not only fail in its duty, but would defeat the object for which the national courts were given jurisdiction of controversies between citizens of different states, if, while leaning to an agreement with the state court, it did not exercise an independent judgment in cases involving principles not settled by previous adjudications.
the present case, to exercise its independent judgment as to what were the relative rights and obligations of the parties under their written contract. The question before it was as to the liability of the coal company for an injury arising from the failure of that corporation, while mining and taking out the coal, to furnish sufficient support to the overlying or surface land. Whether such a case involves a rule of property in any proper sense of those terms, or only a question of general law, within the province of the federal court to determine for itself, the fact exists that there had been no determination of the question by the state court before the rights of the parties accrued and became fixed under their contract, or before the injury complained of. In either case, the federal court was bound under established doctrines to exercise its own independent judgment, with a leaning, however, as just suggested, for the sake of harmony, to an agreement with the state court, if the question of law involved was deemed to be doubtful. If, before the rights of the parties in this case were fixed by written contract, it had become a settled rule of law in West Virginia, as manifested by decisions of its highest court, that the grantee or his successors in such a deed as is here involved was under no legal obligation to guard the surface land of the grantor against injury resulting from the mining and removal of the coal purchased, a wholly different question would have been presented.
There are adjudged cases involving the meaning of written contracts having more or less connection with land that were not regarded as involving a rule in the law of real estate, but as only presenting questions of general law, touching which the federal courts have always exercised their own judgment, and in respect to which they are not bound to accept the views of the state courts. Let us look at some of those cases. They may throw light upon the present discussion.
"Where rules of property in a state are fully settled by a series of adjudications, this Court adopts the decisions of the state courts. But where private rights are to be determined by the application of common law rules alone, this Court, although entertaining for state tribunals the highest respect, does not feel bound by their decisions."
instrument, as they do in the construction of statutes. Where, as in the case of Jackson v. Chew, 12 Wheat. 167, the construction of a will had been settled by the highest courts of the state, and had long been acquiesced in as a rule of property, this Court would follow it, because it had become a rule of property. The construction of a statute by the Supreme Court of a state is followed without reference to the interests it may affect, or the parties to the suit in which its construction was involved. But the mere construction of a will by a state court does not, as the construction of a statute of the state, constitute a rule of decision for the courts of the United States. In the case of Swift v. Tyson, 16 Pet. 1, the effect of the Section 34 of the Judiciary Act of 1789 and the construction of instruments by the state courts are considered with greater precision than is found in some of the preceding cases on the same subject."
"on examining the particulars of the cases cited to govern this (3 Fairfield 398, 4 Shepley 84, 88, 14 Me. 51), it will be seen that the construction of the mortgage to the college, in respect to this reservation or condition, never appears to have been agitated. If it had been, the decision would be entitled to high respect, though it should not be regarded as conclusive on the mere construction of a deed as to matters and language belonging to the common law, and not to any local statute. 3 Sumner 135, 277."
"It is suggested that a different rule is held by the highest court of equity in Kentucky. If it were, with great respect for that learned court, this Court would not feel bound thereby. This being a suit in equity, and oral evidence being admitted or rejected not by the mere force of any state statute, but upon the principles of general equity jurisprudence, this Court must be governed by its own views of those principles,"
citing Robinson v. Campbell, 3 Wheat. 212; United States v. Howland, 4 Wheat. 108; Boyle v. Zacharie, 6 Pet. 658; Swift v. Tyson, 16 Pet. 1; Foxcroft v. Mallett, 4 How. 379.
"This question of dedication, on which the whole of that case turned, was one of fact, to be determined by ascertaining the intention of those who laid out the lots, from what they did, and from the application of general common law principles to their acts. This does not depend upon state statute or local state law. The law which governs the case is the common law, on which this Court has never acknowledged the right of the state courts to control our decisions, except, perhaps, in a class of cases where the state courts have established, by repeated decisions, a rule of property in regard to land titles peculiar to the state."
another state, and that the contract under which it has acquired an interest originated prior to the judicial opinion relied upon as foreclosing our judgment."
"It was not a rule previously established, so as to have become recognized as settled law, and which, of course, all parties to transactions afterwards entered into would be presumed to know and to conform to. When therefore it is presented for application by the courts of the United States, in a litigation growing out of the same facts, of which they have jurisdiction by reason of the citizenship of the parties, the plaintiff has a right, under the Constitution of the United States, to the independent judgment of those courts, to determine for themselves what is the law of the state, by which his rights are fixed and governed. It was to that very end that the Constitution granted to citizens of one state, suing in another, the choice of resorting to a federal tribunal. Burgess v. Seligman, 107 U. S. 20, 107 U. S. 33."
"If, prior to the making of the contracts between the plaintiffs and McClain, the state court had adjudged that the statute in question was in violation of the state constitution, it would have been the duty of the circuit court, and equally the duty of this Court, whatever the opinion of either court as to the proper construction of that instrument, to accept such prior decision as determining the rights of the parties accruing thereafter. But the decision of the state court, as to the constitutionality of the statute in question, having been rendered after the rights of parties to this suit had been fixed by their contracts, the circuit court would have been derelict in duty if it had not exercised its independent judgment touching the validity of the statute here in question. In making this declaration, we must not be understood as at all qualifying the principle that, in all cases, it is the duty of the federal court to lean to an agreement with the state court, where the issue relates to matters depending upon the construction of the Constitution or laws of the state."
numerous cases, some of which are above cited, holding that the federal court is not bound, in cases between citizens of different states, to follow the state decision if it was rendered after the date of the transaction out of which the rights of the parties arose. Certainly there was no purpose on the part of the court to overrule or to modify the doctrines of those cases, and the broad language quoted from East Cent. &c. v. Central Eureka Co. must therefore be interpreted in the light of the particular cases cited to support the view which that language imports. What were those cases and what did they decide?
right, as a condition on which the title passes, is as obligatory on the federal courts as on the state courts, because in both cases it is made a rule of property by the legislature, which had the power to prescribe such a rule. . . . At all events, the decisions of this Court are numerous that the laws which prescribe the mode of enforcing a contract, which are in existence when it is made, are so far a part of the contract that no changes in these laws which seriously interfere with that enforcement are valid, because they impair its obligation, within the meaning of the Constitution of the United States. Edwards v. Kearzey, 96 U. S. 595. That this very right of redemption, after a sale under a decree of foreclosure, is a part of the contract of mortgage, where the law giving the right exists when the contract is made, is very clearly stated by Mr. Chief Justice Taney in the case of Bronson v. Kinzie, 1 How. 311."
De Vaughn v. Hutchinson, 165 U. S. 566, the other case cited, involved the construction of a will made in 1867, devising real estate in the District of Columbia, and the decision was based upon the law of Maryland as it had been often declared by the courts of Maryland to be while this District was part of that state -- indeed, as it was from the time Maryland became an independent state.
a case like the one before us, nor as denying the authority and duty of the federal court, when determining the effect of conveyances or written instruments between private parties, citizens of different states, to exercise its own independent judgment where no authoritative state decision had been rendered by the state court before the rights of the parties accrued and became fixed.
Without expressing any opinion as to the rights of the parties under their contract, we need only say that, for the reasons stated, the question sent to this Court by the circuit court of appeals is answered in the negative. It will be so certified.
"We do not consider ourselves bound to follow the decisions of the state court in this case. When the transactions in controversy occurred, and when the case was under the consideration of the circuit court, no construction of the statute had been given by the state tribunals contrary to that given by the circuit court. The federal courts have an independent jurisdiction in the administration of state laws coordinate with, and not subordinate to, that of the state courts, and are bound to exercise their own judgment as to the meaning and effect of those laws. The existence of two coordinate jurisdictions in the same territory is peculiar, and the results would be anomalous and inconvenient but for the exercise of mutual respect and deference. Since the ordinary administration of the law is carried on by the state courts, it necessarily happens that, by the course of their decisions, certain rules are established which become rules of property and action in the state, and have all the effect of law, and which it would be wrong to disturb. This is especially true with regard to the law of real estate and the construction of state constitutions and statutes. Such established rules are always regarded by the federal courts, no less than by the state courts themselves, as authoritative declarations of what the law is. But where the law has not been thus settled, it is the right and duty of the federal courts to exercise their own judgment, as they also always do in reference to the doctrines of commercial law and general jurisprudence. So, when contracts and transactions have been entered into, and rights have accrued thereon under a particular state of the decisions, or when there has been no decision, of the state tribunals, the federal courts properly claim the right to adopt their own interpretation of the law applicable to the case, although a different interpretation may be adopted by the state courts after such rights have accrued. But even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the state courts if the question seems to them balanced with doubt. Acting on these principles, founded, as they are, on comity and good sense, the courts of the United States, without sacrificing their own dignity as independent tribunals, endeavor to avoid, and in most cases do avoid, any unseemly conflict with the well considered decisions of the state courts. As, however, the very object of giving to the national courts jurisdiction to administer the laws of the states in controversies between citizens of different states was to institute independent tribunals, which it might be supposed would be unaffected by local prejudices and sectional views, it would be a dereliction of their duty not to exercise an independent judgment in cases not foreclosed by previous adjudications."
This is a question of the title to real estate. It does not matter in what form of action it arises, the decision must be the same in an action of tort that it would be in a writ of right. The title to real estate in general depends upon the statutes and decisions of the state within which it lies. I think it a thing to be regretted if, while in the great mass of cases the state courts finally determine who is the owner of land, how much he owns, and what he conveys by his deed, the courts of the United States, when by accident and exception the same question comes before them, do not follow what, for all ordinary purposes, is the law.
that that was all that the state courts did. But, as has been pointed out by a recent accomplished and able writer, that fiction had to be abandoned and was abandoned when this Court came to decide the municipal bond cases, beginning with Gelpcke v. Dubuque, 1 Wall. 175. Gray, Nature & Sources of the Law, §§ 535-550. In those cases, the Court followed Chief Justice Taney in Ohio Life Ins. & Trust Co. v. Debolt, 16 How. 416, in recognizing the fact that decisions of state courts of last resort make law for the state. The principle is that a change of judicial decision after a contract has been made on the faith of an earlier one the other way is a change of the law.
The cases of the class to which I refer have not stood on the ground that this Court agreed with the first decision, but on the ground that the state decision made the law for the state, and therefore should be given only a prospective operation when contracts had been entered into under the law as earlier declared. Douglass v. Pike County, 101 U. S. 677; Green County v. Conness, 109 U. S. 104. In various instances, this Court has changed its decision or rendered different decisions on similar facts arising in different states, in order to conform to what is recognized as the local law. Fairfield v. Gallatin County, 100 U. S. 47.
law. I know of no authority in this Court to say that, in general, state decisions shall make law only for the future. Judicial decisions have had retrospective operation for near a thousand years. There were enough difficulties in the way, even in cases like Gelpcke v. Dubuque, but in them there was a suggestion or smack of constitutional right. Here there is nothing of that sort. It is said that we must exercise our independent judgment -- but as to what? Surely, as to the law of the states. Whence does that law issue? Certainly not from us. But it does issue, and has been recognized by this Court as issuing, from the state courts as well as from the state legislatures. When we know what the source of the law has said that it shall be, our authority is at an end. The law of a state does not become something outside of the state court, and independent of it, by being called the common law. Whatever it is called, it is the law as declared by the state judges, and nothing else.
"is to introduce into the jurisprudence of the State of Illinois the discordant elements of a substantial right which is protected in one set of courts and denied in the other, with no superior to decide which is right."
I refer also to the unanimous decision in East Central Eureka Mining Co. v. Central Eureka Mining Co., 204 U. S. 266, 204 U. S. 272. It is admitted that we are bound by a settled course of decisions, irrespective of contract, because they make the law. I see no reason why we are less bound by a single one.
MR. JUSTICE WHITE and MR. JUSTICE McKENNA concur in this dissent.

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What goes up must come down, but what goes around does not always come around.
When you represent an institutional client in priority or loss transfer disputes, is your client leaving money on the table? They probably are without realizing it. In priority, your client can claim as indemnity pretty much everything it paid out. For example, see the April 6, 2005 award of Guy Jones in Wawanesa v. Kingsway where he found surveillance, among other things, to be recoverable despite it not being mentioned anywhere in the SABS. It was not appealed. On the other hand, in loss transfer your client is arguably entitled to something less, in the nature of ‘benefits’ per s. 275 of the Insurance Act. Our Court of Appeal, in the September 11, 2012 loss transfer decision in Wawanesa v. Axa, 2012 ONCA 592, split 2-1 in favour of insurer examination expenses notbeing recoverable from a respondent. Leave to appeal was not sought. Blair, J.A., dissented but, in my opinion, made the better reasoned choice. This forum does not lend itself to why that is the case, however. Perhaps, as it is sometimes said, the dissent will someday become the majority. I recommend lawyers get into the habit of providing their applicant clients’ electronic payment summaries to respondents very early in both types of disputes, despite Requests for Indemnification existing in loss transfer. The nature of the electronic document translates a greater certainty to respondents of what has actually been paid out. Producing it early will assist a respondent dovetailing your Statutory Accident Benefits file to the amounts noted and can root out documentary deficiencies early on. Upon the summary, you would redact IE expenses, in loss transfer, and the fee accounts your client has paid to you and not much more. There will be some items over which a respondent balks as ‘loss control efforts’ or the like but, with the very high onus upon the respondent to impugn the payment, the applicant is sitting in the driver’s seat. I know of two cases that have discussed this test in priority disputes. I am of the mind more awards have been rendered in loss transfer upon which the following cases are predicated. The two cases are: the December 19, 2014 award of Bruce Robinson in Aviva v. Wawanesa and the December 7, 2017 award of Philippa Samworth in Economical v. Echelon. Neither were appealed.
Further, I subscribe to the theory that a successful litigant is entitled to costs, including repayment of portions of interim accounts rendered by the private arbitrator, relating to the prosecution/defence of the priority or loss transfer dispute. I also espouse a successful applicant to be entitled to interest upon its recovered indemnity, which can be quite substantial. Nearly $200,000.00 in interest alone was recently collected in a long standing priority dispute. To deny costs and suggest ‘it will all come out in the wash long term’ is to permit spurious claims or defences to be de rigueur and only serves to drive up costs at an industry level. Inspiring you to keep a tally when you let someone off the hook surely won’t work out for you or your client in the end. Costs make litigants and their lawyers accountable. Just ask anyone who practices before the Licence Appeals Tribunal (AABS) how they feel about compensatory costs being unavailable to either side. Early costs cases such as the March 8, 2012 award of Ken Bialkowski in Wawanesa v. Markel (loss transfer – in favour of the applicant) and the May 21, 2013 award of Vance Cooper in Security National v. Wawanesa (priority – in favour of the respondent) have lead to more and more jurisprudence in this area, in particular, the in-depth award of Scott Densem from August 22, 2014 in Economical v. Aviva, Her Majesty the Queen (MVACF), et al. None of the three awards were appealed.

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In Lozman v. Riviera Beach, the Supreme Court granted certiorari on the following question: “Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?” There were several moments during yesterday’s oral argument where the Justices and petitioner’s counsel Pam Karlan addressed Twombly, Iqbal, and pleading standards.
JUSTICE ALITO: Well, let's take this particular case then. Suppose -- obviously, there is no love lost between your client and the City of Riviera Beach, but, so suppose he comes back to another meeting and he is disruptive and he's arrested. Will he not be able to file a suit for retaliation and get to the jury on that?
KARLAN: It might be very difficult for him to get to a jury if the level of disruption is such that, under the way this Court has treated plausible pleading in Twombly and Iqbal, it's not plausible to believe that it was the animus that caused the arrest.
JUSTICE ALITO: Do you really think a suit like that could be dismissed under Twombly?
Chief Justice Roberts and Justice Kennedy pursued similar lines of questioning.
Now on the Courts Law section of JOTWELL is Beth Thornburg’s essay, A Well-Pleaded Argument. Beth reviews Lonny Hoffman’s recent piece, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).
Today the U.S. Supreme Court heard oral argument in three consolidated cases raising issues relating to Bivens, qualified immunity, and pleading standards.
The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). You can find more details on the cases here.
Here’s the transcript from today’s argument.
Lonny Hoffman has an essay up on the University of Chicago Law Review Online, Plausible Theory, Implausible Conclusions. Lonny responds to William Hubbard’s recent article, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).
This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.
The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.
Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.
The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history).
The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.
This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting documents, the final amendments — in light of their text, structure, and accompanying advisory committee notes — should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.
Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief’s narrative. Recognizing this will be crucial for ensuring access and enforcement going forward.
Ever Wonder Which SCOTUS Cases Have Been Cited the Most?
We’re just days away from a new U.S. Supreme Court Term. With some notable exceptions, most folks pay attention to Supreme Court decisions not because of who wins or loses those particular cases, but because of what those decisions mean for the law going forward.
You can find the full Top-100 in Appendix A of the article (p.59-62 of the pdf file).
¶2 Because our case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflects first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the court of appeals too narrowly understood our existing precedent. Because the plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, fails to state a plausible claim for relief, the judgment of the court of appeals finding the complaint to be sufficient is reversed, and the matter is remanded with instruction to permit further proceedings consistent with this opinion.
¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable.
¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.
The Rise and Fall of Plausibility Pleading?
The Supreme Court's 2007 decision in Bell Atlantic Corp. v. Twombly and its 2009 decision in Ashcroft v. Iqbal unleashed a torrent of scholarly reaction. Commentators charged these decisions with adopting a new pleading regime, "plausibility pleading," that upended the notice-pleading approach that had long prevailed in federal court. Whether a complaint could survive a motion to dismiss — it was argued — now depends on whether the court found the complaint plausible, allowing courts to second-guess a complaint’s allegations without any opportunity for discovery or consideration of actual evidence. Lower courts began to cite Twombly and Iqbal at a remarkably high rate, and empirical work revealed their effect on both dismissal rates and litigant behavior.
Although Twombly and Iqbal were troubling on many levels, the rise of a newly restrictive form of plausibility pleading was not inevitable. There was — and still is — a path forward that would retain the notice-pleading approach set forth in the text of the Federal Rules themselves and confirmed by pre-Twombly case law. This Article describes this reading of Twombly and Iqbal, and explains how more recent Supreme Court pleading decisions are consistent with this understanding. It is crucial, however, that these post-Iqbal decisions and the approach to pleading they reflect receive the same attention that accompanied Twombly, Iqbal, and the rise of plausibility pleading. Otherwise the narrative that Twombly and Iqbal compel a more restrictive pleading standard may become further entrenched, compounding the adverse effects of those problematic decisions.
Professor Alexander Reinert's empirical study of Iqbal, entitled Measuring the Impact of Plausibility Pleading, has now been published in 101 Va. L. Rev. 2117 (2015). Professor Reinert earlier posted the article on SSRN.
In the United States, modern civil procedure began in 1938 with the promulgation of the Federal Rules of Civil Procedure. From then, until very recently, the notice pleading standard – emphasizing simplicity and brevity in pleadings over technicality – was held up as an example of the Rule’s commitment to adjudicating the merits of every claim and avoiding premature and wasteful disputes that often had little to do with merits. In Bell Atlantic v. Twombly and Ashcroft v. Iqbal, announced in 2007 and 2009, the United States Supreme Court revisited the notice pleading standard, announcing that “plausibility pleading” must now be the standard for assessing whether a complaint’s allegations are sufficient to justify moving to discovery and merits adjudication. This Article offers a comprehensive analysis of the impact of the plausibility pleading standard on resolutions of motions to dismiss in almost 4200 cases from 15 different judicial districts, representing all 12 general jurisdiction circuit courts of appeal. Relying on data obtained from all published and unpublished opinions in these districts for the years 2006 and 2010, this study provides the most detailed analysis to date of the impact that plausibility pleading and other variables have had on the resolutions of motions to dismiss in civil cases.
The data reported here suggest that many prior studies have failed adequately to capture the full impact of Iqbal and Twombly on the resolution of motions to dismiss in federal court. First, this Article provides data showing that dismissals of employment discrimination and civil rights cases have risen significantly in the wake of Iqbal. These results remained significant even after controlling for potential confounding factors. Second, the data also suggest that certain factors interact with the plausibility standard to influence the resolution of a motion to dismiss, including perhaps most importantly the institutional status of the plaintiff and defendant. Individuals have fared poorly under the plausibility regime, at least when compared to corporate and governmental agents and entities. These effects remained significant even after controlling for several potentially confounding variables. Finally, by analyzing data on the progress of cases after a motion to dismiss has been adjudicated, this Article shows that the advent of heightened pleading has not resulted in higher quality claims.
Along with providing an important descriptive account of the impact that plausibility pleading has had on the course of federal litigation, this Article suggests two heretofore unexplored bases for questioning the wisdom of the transition initiated by Twombly and solidified by Iqbal. First, while one should not be shocked by the observation that civil rights and employment discrimination claims suffer under the plausibility pleading regime, one should still be troubled by it given the historical role that federal courts have played in such cases. Second, to the extent that the plausibility regime has exacerbated inequality in the courts between individual litigants on one hand and corporate and governmental entities on the other, without increasing overall case quality, there should be wider agreement that such a change is to be lamented.
Luke Meier (Baylor University Law School) has posted on SSRN his latest article, The Reviewability of Denied Twombly Motions, forthcoming in The University of Cincinnati Law Review.
This article argues in favor of permitting appellate review of a denied Twombly motion when a defendant appeals an adverse final judgment. With regard to denied summary judgment motions, the question of post-judgment appellate review has caused considerable confusion in the last few years. This article aims to prevent this confusion from developing with regard to denied Twombly motions and, in the process, to clear up the existing uncertainty with regard to appellate review of denied summary judgment motions. The critical step towards this goal is distinguishing between “mootness” and “forfeiture.” Because a denied Twombly motion is not rendered moot by subsequent proceedings in the district court, and because a defendant does not forfeit appellate review of a denied Twombly motion, appellate courts should assess the propriety of the denial of a Twombly motion in an appeal from a final judgment. This conclusion might appear, on first impression, outrageous. But it is the proper conclusion under existing rules governing the availability of appellate review.
If you’ve been following this batch of amendments as it has worked its way through the various committees, you may notice that the adopted rules include a couple of changes to the proposed committee notes (hat tip: Valerie Nannery).
Over at PrawfsBlawg, Dave Hoffman has a post up on the empirical impact of Twombly and Iqbal. That issue has been hotly debated, but there’s no question that federal courts are continuing to struggle with what those decisions mean for how judges should decide Rule 12(b)(6) motions. A particularly difficult question has been the vitality of pre-Twombly Supreme Court precedents like Conley v. Gibson and Swierkiewicz v. Sorema.
Some thoughts on Johnson v. City of Shelby: Does it help make sense of Twombly & Iqbal?
Nonetheless, the Court states that—on remand—the Johnson plaintiffs “should be accorded an opportunity to add to their complaint a citation to § 1983.” [Slip Op., p.3] This is admittedly somewhat puzzling. Why would there be any need to amend the complaint to include something that is not required? One possible explanation is that the plaintiffs had asked the district court for leave to amend the complaint, but the court refused and the Fifth Circuit affirmed that refusal. It is valuable, therefore, for the Supreme Court to reemphasize—with its citation to Rule 15(a)(2)—the Federal Rules’ instruction that “[t]he court should freely give leave when justice so requires.” [See Slip Op., p.3] In any event, the Supreme Court simply insists that the plaintiffs have an opportunity to add a citation to § 1983 to their complaint (as they requested). Given the Supreme Court’s conclusion that no such citation is required, it would be entirely proper for the Johnson plaintiffs and the lower court to agree that no amendment to the complaint is necessary in order for the plaintiffs’ claims to be resolved on the merits.
Can a plaintiff really comply with Twombly and Iqbal merely by “stat[ing] simply, concisely, and directly events that, they alleged, entitled them to damages from the city”? Yes. Keep in mind: even Iqbal recognized that non-conclusory allegations must be accepted as true at the pleadings phase, without any inquiry into whether the truth of those allegations is plausibly suggested by other allegations. One of many frustrating aspects of the Iqbal majority opinion was that it failed to explain what made the crucial allegations in the Iqbal complaint too conclusory to be accepted as true. But I’ve argued elsewhere that one way to make sense of Twombly and Iqbal—in light of the text and structure of the Federal Rules and Supreme Court precedent that remains good law—is through a transactional approach to pleading. That is, an allegation is conclusory when it fails to identify adequately the acts or events that entitle the plaintiff to relief from the defendant. It is only when an allegation obscures the underlying real-world events with mere legal conclusions that it should be disregarded as conclusory under Iqbal.
On this point, it’s particularly interesting that the plaintiffs’ claim in Johnson was “that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen.” [Slip Op., p. 1] Such a claim—like the claim at issue in Iqbal—hinges on the defendants’ intent. Properly understood, Iqbal does not hold that an allegation is “conclusory” simply because it alleges that a defendant acted with a certain state of mind. Rather, such an allegation should be accepted as true—including its description of the defendant’s intent—as long as it provides a basic identification of the liability-generating events or transactions. The Supreme Court’s reasoning in Johnson is consistent with this approach, and confirms that Twombly and Iqbal need not be read to impose heightened burdens on plaintiffs at the pleadings phase.
All in all, Johnson v. City of Shelby is a short-but-sweet per curiam opinion that not only gets the right result on the primary issue presented, but also reflects a more sensible approach to pleading generally. Lower courts should take note.
Plaintiffs below, petitioners here, worked as police officers for the city of Shelby, Mississippi. They allege that they were fired by the city’s board of aldermen, not for deficient performance, but because they brought to light criminal activities of one of the aldermen. Charging violations of their Fourteenth Amendment due process rights, they sought compensatory relief from the city. Summary judgment was entered against them in the District Court, and affirmed on appeal, for failure to invoke 42 U. S. C. §1983 in their complaint.
We summarily reverse. Federal pleading rules call for “a short and plain statement of the claim showing that the pleader is entitled to relief,” Fed. Rule Civ. Proc. 8(a)(2); they do not countenance dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted. See Advisory Committee Report of October 1955, reprinted in 12A C. Wright, A. Miller, M. Kane, R. Marcus, and A. Steinman, Federal Practice and Procedure, p. 644 (2014 ed.) (Federal Rules of Civil Procedure “are designed to discourage battles over mere form of statement”); 5 C. Wright & A. Miller, §1215, p. 172 (3d ed. 2002) (Rule 8(a)(2) “indicates that a basic objective of the rules is to avoid civil cases turning on technicalities”).
Our decisions in Bell Atlantic Corp. v. Twombly, 550 U. S. 544 (2007), and Ashcroft v. Iqbal, 556 U. S. 662 (2009), are not in point, for they concern the factual allegations a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard. Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3), (d)(1), (e). For clarification and to ward off further insistence on a punctiliously stated “theory of the pleadings,” petitioners, on remand, should be accorded an opportunity to add to their complaint a citation to §1983. See 5 Wright & Miller, supra, §1219, at 277–278 (“The federal rules effectively abolish the restrictive theory of the pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the plaintiff’s claim for relief.” (footnotes omitted)); Fed. Rules Civ. Proc. 15(a)(2) (“The court should freely give leave [to amend a pleading] when justice so requires.”).


The Office of Management and Budget (OMB) initiated proceedings to adopt the State of Delaware Environmentally Preferred Purchasing Policy. The OMB proceedings to adopt regulations were initiated pursuant to 29 Del.C. Chapter 101 and authority as prescribed by 29 Del.C. §§6303A(16) and 6913.
On January 1, 2013 (Volume 16, Issue 7), OMB published in the Delaware Register of Regulations its notice of proposed regulations, pursuant to 29 Del.C. §10115. It was requested that written materials and suggestions from the public concerning the proposed regulations be delivered to OMB by February 20, 2013 or be presented at a public hearing on February 5, 2013, after which time OMB would review information, factual evidence and public comment to the said proposed regulations.
Both written and verbal comments were received during the public comment period and evaluated. The results of that evaluation are summarized in the accompanying “Summary of Evidence.” This is OMB’s “conclusion” and “order” as required by 29 Del.C. §10118(b).
In accordance with Delaware Law, public notices regarding proposed State of Delaware Environmentally Preferred Purchasing Policy were published in the Delaware State News, the News Journal and the Delaware Register of Regulations.
Mr. Chip Rankin, representing milliCare.
Mark Petruzzi, representing Green Seal, Inc.
Comment: Green Seal certification should be listed along with the EPA DfE program as an acceptable 3rd party certification.
4.1	To prevent unsubstantiated claims of environmental benefit or reduced impact, any product deemed to be approved or considered under this policy shall be certified by the U.S. EPA Design for the Environment (DfE) Formulator Program or recognized by the State, DNREC or DTI as consistent with environmental goals with claims verified through independent 3rd party certification.
An earlier version of the regulation advertised in 2012 included language citing examples of additional acceptable certifications. OMB received public comment at that time supporting the deletion of language explicitly listing these additional certifications because of lack of uniformity of methodologies used in establishing these certifications. Language has been included in this section allowing for recognition by the State as “….consistent with environmental goals with claims verified through independent 3rd party certification.” In essence, this language gives the authority to the State, DNREC or DTI to recognize acceptable certifications, including Green Seal in addition to DfE. Accordingly, the proposed regulation will not be amended to include Green Seal.
Comment: There should be an approved list of standards that is the basis of qualification for purchasing products and services and the GSS should keep an updated list of the most stringent and others that meet a minimum standard.
Agency response: Thank you for your comment. Language in Section 4.1 would require a listing of recognized certifications.
Comment: Section 4.1 should include Green Seal and EcoLogo certifications.
Agency response: Thank you for your comment. Please see first response to Chip Rankin above.
Agency response. Thank you for your comment. Please see first response to Chip Rankin above.
Comment: Suggest that Integrated Pest Management be defined to eliminate the use of toxic chemicals.
Agency response.Thank you for your comment.The current definition of Integrated Pest Management was incorporated as a result of public comment from the previous version of this regulation and is consistent with industry standard definitions. Accordingly the proposed regulation will not be further amended.
Comment: The proposed regulation should be amended in Sections 4.1, 8.1 and 8.5 to include GREENGUARD, and UL EcoLogo as acceptable third party environmental verification.
Comment: Delaware should include Green Seal and EcoLogo as acceptable certifications.
Richard Bizzozero, Director and Rick Reibstein, Manager of Outreach and Policy, Commonwealth of Massachusetts, Executive Office of Energy and Environmental Affairs.
Mark Petruzzi, Senior Vice President of Outreach and Strategic Relations, Green Seal, Inc.
Comment: A broad EPP policy should reflect third party certifications with broad scope, such as Green Seal.
Comment: The proposed EPP Policy should include an explicit definition for “Third Party Certification”.
Agency Response: Thank you for your comment. The regulation allows flexibility in choosing third party certifications. As such, the regulation will not be amended to include such a definition.
The Department finds that the proposed regulation as set forth in the January 2013 Register of Regulations should be adopted. While the Office of Management and Budget appreciates the suggestions that specific certifications be referenced in the proposed regulation, the requested references to certain certifications are rendered unnecessary by the State’s regulatory power to accept these proposed certifications. Additionally, the more generic approach set forth in this regulation will allow the State to remain flexible and require fewer revisions to the regulation in the future as the name and variety of certifications change.
NOW THEREFORE, under the statutory authority and for the reasons set forth above, the Director of the Delaware Office of Management and Budget does hereby ORDER that the Regulation be, and that it hereby is, adopted and promulgated. The effective date of this Order is ten days from the date of its publication in the Delaware Register of Regulations, in accordance with 29 Del.C. §10118(g).
The purpose of this Regulation is to set forth the policy and procedures for establishing environmentally preferred purchasing standards. This regulation is applicable to all Delaware state executive branch agencies, departments, and offices.
This regulation is adopted to strengthen environmental outcomes through purchasing decisions that reduce the amount of toxic substances used, consumed or disposed, improve air quality, conserve resources and minimize waste, conserve energy and water, minimize local and global climate impact, lessen the impact to employee and public health and contribute to sustainable economic growth within the State of Delaware.
This regulation is not intended to mandate the purchase of certain products or services but rather to provide a framework for those Executive branch agencies, departments and offices to procure environmentally preferred products and services at their discretion.
This regulation shall not, nor is intended to, create a legal cause of action or any legal or equitable right, privilege, or duty which is capable of judicial enforcement. This regulation is advisory only and does not bind or dictate procurement choices for any entity required to comply with Chapter 69 of Title 29 of the Delaware Code to accept or reject bids or proposals.
Pursuant to 29 Del.C. §6301A, the Office was established. The Office has authority to make regulations pursuant to 29 Del.C. §6303A(16) and 6913. The Regulation is established in compliance with 29 Del.C. §6913 and Executive Order 18 (February 17, 2010).
“Biodegradable” means capable of being broken down by microorganisms into simple, stable compounds such as carbon dioxide and water.
“Composting” means the conversion of organic material to compost by microorganisms. Compost is organic material that can be used as a soil amendment or as a medium to grow plants. Composting reducing the organic portion of garbage include yard trimmings, leave and food scrapes.
“DfE" means the U.S EPA Design for the Environment Formulator/Labeling Program.
“Director” means the Director of the Delaware Office of Management and Budget.
“DNREC” means the State of Delaware Department of Natural Resources and Environmental Control.
“DTI” means the State of Delaware Department Technology and Information.
“Electronic Product Environmental Assessment Tool (EPEAT)” means a system that helps the purchaser evaluate, compare and select electronic products based on their environmental attributes. The system currently covers desktop and laptop computers, thin clients, workstations and computer monitors.
“Energy Star” means EPA’s energy efficiency product labeling program.
“Energy Efficient” means a product that is in the upper 25 percent of energy efficiency for all similar products, or that is at least 10 percent more efficient than the minimum level that meets Federal standards.
“Environmental Performance” means considerations including the use of renewable resources, improved energy and water efficiency, the reduction of air contaminants and greenhouse gas emissions, increased reuse and recycling, and the reduction of hazardous waste and toxic pollutants.
“Environmentally Preferred” means products and services that perform effectively and have a less or reduced effect on human health and the environment over the life cycle of the products and services when compared with competing products or services that serve the same purpose.
“GSS” means the Delaware Office of Management and Budget, Government Support Services.
“Hardscape” means part of the building’s grounds made with hard materials such as patios, retaining walls and walkways.
“Heat-Island Effect” means warmer temperatures in urban areas compared to the adjacent rural areas as a result of solar energy retention on constructed surfaces such as streets, sidewalks, parking lots and buildings.
“Impervious” means the condition of surfaces that do not permit the passage of liquids.
“Integrated Pest Management (IPM)” includes (a) communication and educating customers about pests, pest management and the parties' responsibilities; (b) thorough inspections and monitoring to identify pest problems and conditions that might be contributing to pest problems; (c) preventive actions such as pest-proofing and trash management to keep pests from becoming a problem; (d) physical pest management tools and tactics such as trapping, vacuuming, and using heat or cold to control pests; (e) low impact use of pesticides; and (f) follow up and evaluation of pest management actions.
"Integrated Vegetation Management (IVM)" A system of managing plant communities in which compatible and incompatible vegetation is identified, action thresholds are considered, control methods are evaluated and selected control(s) are implemented to achieve a specific objective. Choice of control methods is based on effectiveness, environmental impact, site characteristics, safety, security and economics. Control options, which include biological, chemical, cultural, manual, and mechanical methods, are used to prevent or remedy unacceptable, unreliable, or unsafe conditions.
“Life-cycle Cost analysis” means the study of the costs associated with a product through its life cycle – from acquisition to its end-of-life management.
“Office” means the Delaware Office of Management and Budget.
“Permeable” means the condition of surfaces permitting the passage of liquids.
“Post-Consumer Material” means a finished material which would normally be disposed of as a solid waste, having reached its intended end-use and completed its life cycle as a consumer item, and does not include manufacturing or converting wastes.
“Recycled Content” means the percentage of recovered material, including pre-consumer and post-consumer materials, in a product that otherwise would have been discarded.
“Reused Product” means any product designed to be used many times for the same or other purposes without additional processing except for specific requirements such as cleaning, painting or minor repairs.
“Source Reduction” means products that result in a net reduction in the generation of waste compared to their previous or alternate version and includes durable, reusable, and remanufactured products.
“Surfactant” means an agent that, when dissolved in water, breaks surface tension and allows cleaning agents a more effective removal of dirt from surfaces.
“Sustainable” means the needs of the present are met without compromising the ability of future generations to meet their own needs.
“Water-Saving Products” means products that are in the upper 25 percent of water conservation for all similar products, or at least 10 percent more water conserving than the minimum level that meets the Federal standards.
“WaterSense” means a partnership program sponsored by EPA, to help Americans save water and protect the environment.
4.1	To prevent unsubstantiated claims of environmental benefit or reduced impact, any product deemed to be approved or considered under this policy shall be certified by the U.S. EPA Design for the Environment (DfE) Formulator Program or recognized by the State, DNREC or DTI as consistent with environmental goals with claims verified through independent 3rd party certification. 4.2	The costs of any certification required under this Regulation shall be solely at the expense of the vendor/supplier and no costs above the product/services price shall be permitted.
4.2	Suppliers may still seek environmentally preferable recognition for products that are not so certified or recognized by the above certifications by submitting an affidavit from a certified laboratory or accredited third-party stating that the products meet or exceed the performance and health and environmental criteria as defined in 4.1 and demonstrating a cost benefit of these products over established certified products or a comparative life-cycle assessment (LCA) which demonstrates life cycle impact benefits associated with the environmentally preferable product when compared to traditional products.
4.3	Those agencies pursuing LEED certification shall comply with the appropriate rating system published by the US Green Building Council.
4.4	The costs of any certification required under this Regulation shall be solely at the expense of the vendor/supplier and no costs above the product/services price shall be permitted.
5.1	Wherever feasible, transition to environmentally and health-friendly products and services shall occur in a manner that avoids wasting of existing inventories, accommodates establishment of supply chains for new products, enables the training of personnel in appropriate work practices, and allows the phase-out of products and practices inconsistent with this Regulation.
5.2	Purchase products that are durable, long lasting, reusable or refillable.
5.3	Purchase remanufactured products such as toner cartridges, tires, furniture, equipment and automotive parts, but without reducing safety, quality, effectiveness or the warranty that supports the original product.
5.4	Consider short-term and long-term costs in comparing product choices. This includes an evaluation of the total costs expected during the time the product is owned including, but not limited to, acquisition, extended warranties, operation, maintenance and end-of-life management.
5.5	Request vendors reduce packaging or use the minimum amount necessary for product protection.
5.6	Require that surplus or outdated electronic equipment, including but not limited to, computers, monitors, printers and copiers, be designated for reuse or recycled under the requirement of 29 Del.C. §7002(b).
6.1	Apply, as a general rule, the 5 percent price preference for purchasing recycled-content products as specified in 29 Del.C. §6938. Specify and purchase products that contain the highest percentage of post-consumer recycled-content practicable.
6.2	Specify that all printed materials (e.g., reports, brochures, letters, forms, business cards) that are purchased or produced must be printed on recycled-content paper and contain a statement on the material that the paper contains recycled-content. The statement should also indicate the percentage of post-consumer recycled content it contains.
6.3	Specify and purchase recycled-content transportation products such as signs, traffic cones, barricades, parking stops and delineators.
6.4	Specify the use of recycled, reusable, or reground materials for paved constructions projects.
7.1	Purchase energy efficient equipment including, but not limited to, high-efficiency heating and cooling equipment, high-efficiency motors and equipment controls.
7.2	Purchase appliances and equipment that meets or exceeds the EPA’s EnergyStar standards and have the EnergyStar label (www.energystar.gov) as specified in 29 Del.C. §6939.
7.3	Replace non-energy efficient lighting, including interior and exterior lightning, street lighting and traffic signal lights with energy-efficient equipment and bulbs.
7.4	Replace incandescent light bulbs with compact fluorescent or light emitting diode (LED) bulbs when the incandescent bulbs need to be replaced.
7.5	Purchase water-saving products, including but not limited to, high-performance fixtures like low-flow, waterless urinals, tankless water heaters, low-flow faucets and aerators as well as faucets with motion-activated sensors. When possible, purchase products receiving EPA’s WaterSense designation (www.epa.gov/WaterSense).
8.1	When procuring or contracting for cleaning services, require such contracted services to use environmentally preferable cleaning products and services, wherever practical. All chemical cleaning products and services purchased should be recognized by the U.S. EPA Design for the Environment (DfE) Formulator Program or recognized by the State, DNREC or DTI as consistent with environmental goals with claims verified through independent 3rd party certification.
8.2	For purposes of this policy, “cleaning product” does not include any disinfectant, disinfecting cleaner, sanitizer or any other antimicrobial product regulated by the Federal Insecticide, Fungicide and Rodenticide Act, 7 USC 136 et seq.
8.3	Products shall not be toxic or highly toxic as defined by the OSHA Hazard Communication Standard, (29 CFR 1910.1200). Require that all surfactants and detergents be biodegradable and meet DfE criteria for surfactants.
8.4	Products should not have the potential to release substances that are recognized by US EPA as known carcinogens at points above US EPA risk levels.
8.5	Purchase building products such as paint, carpet, adhesives, furniture and casework with the highest recycled content and are consistent with federal volatile organic component limits.
8.6	Purchase paper products that are unbleached or that utilize elemental chlorine-free technologies or other technologies that achieve environmentally compatible benefits.
8.7	Purchase soy-based ink for printing. Include the use of soy-based ink in printing contracts.
8.8	Purchase rechargeable instead of single use batteries.
8.9	Specify that desktop computers, notebooks and monitors purchased or leased meet, at a minimum, the bronze standard of the Electronic Product Environmental Assessment Tool (EPEAT) criteria (www.epeat.net).
8.10	Employ Integrated Pest Management and Integrated Vegetation Management techniques for pest management.
9.1	Purchase environmentally friendly landscape services that includes design, construction, renovation and maintenance. These services may include grasscycling, composting and the reduction of hazardous products.
9.2	Purchase recycled-content materials when constructing hardscape and landscape structures.
9.3	Reduce water used for irrigation by purchasing plants that are native to the area and drought-tolerant that require minimal or no watering once established.
9.4	Reduce water pollution and heat-island effect by reducing the amount of impervious surfaces in the landscape. Permeable substitutes such as pervious concrete or pavers are preferred for walkways, patios, driveways and low-volume traffic areas.
10.1	Require that all surplus or outdated equipment/facilities/materials be identified as surplus, and, as required by 29 Del.C. §7002, be considered to have no remaining useful life and available for disposal.
10.2	Focus on in-state reuse by State agencies, towns, municipalities and other State supported agencies to avoid duplicate procurement and encourage reuse of resources throughout every level of State government.
10.3	Preplan projects with one-time contracting to remove items considered surplus property and deliver to other state agencies or sell to the general public.
10.4	Consider buying material that at the end-of-life can be reutilized as-is or recycled, such as aluminum signs, metal fencing and metal shelving.
11.1.1.1	Reduced fuel consumed to reach market/ Agency recipient.
11.1.1.2	Products and/or Services that are provided by Agricultural Businesses which are certified for Best Management Practices (BMP), Good Food Handling Practices (GHP) and Good Agricultural Practices (GAP) through the Delaware Department of Agriculture or surrounding State’s equivalent program.
11.1.1.3	The consideration given for environmental impact shall not exceed 10% of the total points awarded or costs of the goods/ services.
11.1.1.4	Fruit and vegetable consumption is an important component of a balanced diet consistent with the Dietary Guidelines for Americans and the Food Guide Pyramid. In order to maximize the nutritional value and reduce the use of carbon fuels, fresh produce to support the Farm to School Initiative should be required to be delivered within 2 days of harvest.
11.2.1	State Agencies shall obtain 3 quotes from local distributors, one of which must be a, supplier or farmer within 25 miles of need to reduce the impact of transportation to market and the consumption of fossil fuels.
11.3	If a product or service is available by an agricultural business that is certified by the Delaware Department of Agriculture for Best Management Practices (BMP), Good Food Handling Practices (GHP) and Good Agricultural Practices (GAP) or an equivalent surrounding states program, they shall receive consideration equal to10% of the total decision criteria.
12.1	GSS will oversee the statewide implementation of this Regulation.
12.2	GSS will establish an Environmentally Preferable Purchasing (EPP) Workgroup of no less than seven members to be selected from State agencies that will meet at least quarterly. The State GSS Director will chair the workgroup. The mission of the workgroup will be to enhance and facilitate the coordination and implementation of this Regulation as follows.
12.2.1	Identify immediate priorities, establish a process for identifying additional priorities and set deadlines for implementation.
12.2.3	Research and recommend recycled-content products for consideration on State contracts.
12.2.4	Develop, implement and assist State agencies in tracking their environmentally preferred purchasing progress.
12.2.5	Review and revise, if necessary, the standards of this Regulation on at least an annual basis.
12.3	The procurement solicitations for goods and services shall afford prospective vendors with an opportunity to quote prices for environmentally preferred products and non-preferred products, leaving the opportunity to purchase the preferred products to the State agency’s discretion.
12.4	New purchasing contracts for the purchase of such products or cleaning services shall include an appropriate requirement consistent with this Regulation and guidelines provided by the Office.
12.5	This Regulation will become effective 10 days after being published as a final regulation.