The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to believe otherwise, would-be plaintiffs are faced with a greater pleading standard than the plain language of Rule 8 suggests. Now, a new victim of judicial misinterpretation has emerged: the Appendix of Forms under Rule 84. Part I of this Note discusses the history of Twombly and Iqbal and their effect on pleading standards under the Rules. Part II describes how courts have struggled, unsuccessfully in many cases, to reconcile the Court’s interpretation with the language of Rule 8 and the illustrative forms under Rule 84. Part III outlines the response of the Standing Committee on Rules of Practice and Procedure to the dilemma created by Twombly and Iqbal. Finally, Part IV discusses the author’s alternative to abrogation of the Forms.
Justin Olson, If It (Ain’t) Broke, Don’t Fix It: Twombly, Iqbal, Rule 84, and the Forms, 39 SEATTLE U. L. REV. 1375 (2016).