The Lawletter Vol 45 No 1
Practitioners in federal court are by now aware of the revolution in federal pleading fashioned by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), which are often referred to jointly using the portmanteau "Twiqbal." Under the Twiqbal analysis, a district court considering the legal sufficiency of a complaint on a motion to dismiss for failure to state a claim initially separates factual allegations, which are still entitled to the presumption of truth, from legal conclusions (such as "[t]hreadbare recitals of the elements of a cause of action"), which are not. Iqbal, 556 U.S. at 678. The court then examines just the factual allegations to determine whether they state a claim to relief that is plausible on its face. Id. Determining whether a claim is plausible is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
While some state courts have moved toward the Twiqbal pleading standards, that had not been the case in Virginia, but that may be changing, based on a series of opinions authored by Justice D. Arthur Kelsey. The first signpost was planted by Justice Kelsey in Coward v. Wellmont Health System, 295 Va. 351, 812 S.E.2d 766 (2018). In stating the appellate standard of review of an order granting a demurrer (Virginia's equivalent of a motion to dismiss for failure to state a claim), the court cited the familiar proposition that a court considering the legal sufficiency of a complaint on a demurrer must "accept as true all factual allegations expressly pleaded in the complaint and interpret those allegations in the light most favorable to the plaintiff." Id. at 358, 812 S.E.2d at 769-70. But the court then proceeded to note two important limitations on this principle. First, while the reviewing court must accept as true unstated inferences to the extent they are reasonable, the court "give[s] them no weight to the extent that they are unreasonable," that is "strained, forced, or contrary to reason," and thus properly disregarded as "arbitrary." Id. at 358-59, 812 S.E.2d at 770 (emphasis in original) (internal quotation marks omitted). Second, the court "must distinguish allegations of historical fact from conclusions of law," assuming the truth of the former but assuming "nothing about the correctness of the latter." Id. at 359, 812 S.E.2d at 770. Distinguishing factual allegations from conclusions of law is, of course, the first step in the Twiqbal analysis.
Justice Kelsey cited these principles in his subsequent opinions in Parker v. Carilion Clinic, 296 Va. 319, 330, 819 S.E.2d 809, 816 (2018), Sweely Holdings, LLC v. SunTrust Bank, 296 Va. 367, 370-71, 820 S.E.2d 596, 598 (2018), and Anderson v. Dillman, 297 Va. 191, 193-94, 824 S.E.2d 481, 482 (2019). The move toward Twiqbal then took a more dramatic step in A.H. ex rel. C.H. & E.H. v. Church of God in Christ, Inc., 297 Va. 604, 831 S.E.2d 460 (2019) (Kelsey, J.). In that case, the court explicitly referred to Twombly and Iqbal, which is a first for a Virginia Supreme Court case in this context. In particular, the court opined that "[d]istinguishing between reasonable and unreasonable inferences is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense,'" id. at 613, 831 S.E.2d at 465 (quoting Iqbal, 556 U.S. at 679), "guided by the principle that 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable,'" id. (quoting Twombly, 550 U.S. at 556). As noted above, that is the same task that the U.S. Supreme Court has assigned to federal district courts in determining whether a claim is plausible on its face. The reference to "improbable" proof also evokes the Twiqbal "plausibility" standard, without ever using that word. See Iqbal, 556 U.S. at 678 ("[T]he plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." (quoting Twombly, 550 U.S. at 556)). The quotes from Twombly and Iqbal in A.H. were then repeated in Tingler v. Graystone Homes, Inc., ___ Va. ___, 834 S.E.2d 244, 250 (2019) (Kelsey, J.), but this time with the tell-tale internal quotation marks in both cases expressly omitted.
The court in A.H. also quoted one of its earlier cases in support of the proposition that factual allegations "must be made with 'sufficient definiteness to enable the court to find the existence of a legal basis for its judgment'" in order to survive a challenge by demurrer. A.H., 297 Va. at 613, 831 S.E.2d at 465 (quoting Squire v. Va. Hous. Dev. Auth., 287 Va. 507, 514, 758 S.E.2d 55, 59 (2014)). The quotation would be unremarkable but for the accompanying footnote, which includes a lengthy string citation (normally reviled by judges) to prove that this "'sufficient definiteness' requirement has long anchored our application of notice-pleading principles." Id. at 613 n.1, 831 S.E.2d at 465 n.1. The footnote ends, however, by noting that the line between a pleader’s duty to state the "essential facts" of her claim and the absence of any need to detail the "particulars" of a negligence claim "can only be fairly drawn on a case-by-case basis that focuses on which factual allegations are truly essential and which are inessential particulars." Id. (citing Va. Sup. Ct. R. 1:4(j), 3:18(b)); accord Tingler, ___ Va. At ___, 834 S.E.2d at 250 n.2.
In the end, if the line between pleading essential facts and not pleading particulars can only be drawn on a case-by-case basis by a court employing "its own judicial experience and common sense," then pleaders in Virginia may no longer have much choice but to err on the side of including more facts in their complaints than would formerly have been required in a true "notice-pleading" regime. In short, it seems that Twiqbal-style pleading may now be prudent in Virginia, even if it is not yet officially required by the Virginia Supreme Court.