More on the reach of Iqbal

Last month I wrote about the consequences of the U.S. Supreme Court case Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), in which the Court decided 5-4 that the plaintiff's claim should be dismissed because he had neglected to present concrete factual evidence of his claim at the time that he filed it. See here and here. The debate has centered on whether the decision would be expanded to any kind of case. It appears that it has. The case is being used in support of motions to dismiss with increasing frequency in all types of cases. Today, Jon Siegel published a short comment in Concurring Opinions criticizing the consequences of the decision using a recent dismissal in a slip and fall case. He writes: "Plaintiff alleged that she slipped and fell on liquid on the floor of defendant’s store. Insufficient! says the district court. Plaintiff has to allege either that the store owner caused the liquid to be on the floor or that the owner had actual or constructive notice that the liquid was on the floor and failed to remove it within a reasonable time or warn the plaintiff of it. And how exactly is the plaintiff supposed to make these allegations without discovery? This is what’s wrong with Iqbal. Of course if the plaintiff can’t prove all the elements of her claim under the applicable substantive law, she will ultimately lose. But what does it matter if every last point is in the complaint? The defendant knows perfectly well what the case is about — plaintiff slipped and fell in defendant’s store and claims that defendant is responsible. We don’t need any more to get started. There are other mechanisms to thrash out questions such as the questions raised by this case — specifically, discovery and motions for summary judgment." For the full story, go here.