Must-Read For Commercial Litigators

Our old friend, the Reverend Wright supporter -- kidding -- the McCain supporter who might as well live in New Hampshire alerts us to today's First Circuit decision Trans-Spec Truck Serv. v. Caterpillar Inc., No. 07-1476. And if you practice commercial litigation in the Commonwealth, you really ought to read it.

Why?

Because it's rare to have the benefit of an appellate court's detailed views on how it looks at practicing before magistrates, how it looks at motions to dismiss, when it is willing to convert a motion to dismiss into a motion for summary judgment, how it looks at motions for summary judgment, whether to permit a pleading to be amended. But there's more! The court considers substantive questions of unconscionability, waiver, and warranties.

The afore-mentioned McCainiac thinks that the law firm representing the appellant may have more to worry about than just losing this appeal. As if they didn't have enough to worry about already.

Barney Alert: Did The SJC Just Send A Signal That It’s About To Get Easier To Dismiss Civil Suits?

The Widget:

Court: SJC
Judge: Greany
Subject: Motions to dismiss
Tone: Hedging
Importance: ?

Our first Barney Alert in a while. Last term the U.S. Supreme Court decided Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and civil litigators scratched their heads. The Court said that the old standard for determining whether or not to dismiss a complaint under Rule 12 (“a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief”) leads to too many groundless lawsuits gaining too much traction. The Court suggested replacing the old standard with something different: “whether facts alleged in the complaint raise a right to relief above the speculative level . . . on the assumption that all the allegations in the complaint are true (even if doubtful in fact).”

Now there are two distinct schools of thought on whether this is a meaningful change. In Eigerman v. Putnam Investments, Inc., No. SJC 07-9854, the SJC today spends a moment considering the issue and punts. “In a future case,” Justice Greany says, “we may consider whether we should adopt the Bell Atlantic standard for application to complaints that are the subject of a motion to dismiss pursuant to Mass. R. Civ. P. 12(b)(6).” Two things to take away from this equivocation: (1) the SJC thinks the Twombly case did lower the bar that must be hurdled before a case can be dismissed under Rule 12; and (2) the SJC did not reject the Twombly standard out of hand as being totally preposterous. Expect plaintiffs and defendants to grapple clumsily (and expensively) with this issue until the SJC resolves it.

Barney Alert: Amending Fraud Claims

What do you call someone who’s geeky? In junior high we were Barneys. Now this was Southern California, which is generally batty in a variety of ways but especially when it comes to the lingo. Today gives us an opportunity to inaugurate another irregular feature: the Barney Alert. Barney Alerts are for those of us who are geeky about civil procedure.

United States ex rel. Rost v. Pfizer, Inc., No. 06-2627, addresses an oft-forgotten aspect of moving to dismiss a complaint early in a case under Rule 12(b)(6). Plaintiffs regularly forget to ask the Court to allow them to try to fix a complaint that does not state a claim. When the request is made, it will usually be granted. In this case, the trial court never ruled on the plaintiff’s request to amend a fraud claim that it ultimately decided to dismiss. The First Circuit vacated the dismissal and sent the case back to the trial court. The lesson: always ask and make the record clear that you’ve done so.