Influence On U.S. Federal Civil Complaint By Applying “plausible Pleading Standard” And Implication To China

Currently, judicial reform is taking place in China. The socialist rule of law concept in China is winning support among people regarding aspects of legislation, law enforcement and judiciary. Legislation is being constantly improved, and law enforcement and judiciary are also being constantly standardized. Under such background, the PRC Civil Procedure Law enacted in 2012 had been substantially amended, and the corresponding judicial interpretation was also introduced by the end of 2014 and promulgated in the early 2015. On this occasion, although a certain modifications for civil complaint requirements were implemented, some details of the provisions still need to be certified.The civil complaint is an important part of the federal civil procedure pre-trial process in the United States, which symbolizes the beginning of the civil procedural process in the United States. The federal civil pleading standard had experienced four stages of development, which were the common law pleading standard, code pleading standard, notice pleading standard, and plausible pleading standard created by the Bell Atlantic Corp. v. Twombly case in 2007 and Ashcroft v. Iqbal case in 2009. Each stage had a certain insufficiency, which yielded the new pleading standard in the next stage.The common law pleading standard required that the plaintiff should choose the right form of writ to sue, and such strict form requirement meant that the common law pleading standard would often drop the case raised by the plaintiff due to the nonconformity of the writ, which would unable the plaintiff to any legal remedy. Therefore, in order to improve the strict technical factor of the common law pleading standard, which would easily lead to injustice, a lawyer named David Dudley Field launched a codification movement in New York State. One of the most important content of the movement was to advocate the simplification of the civil pleading standard and reject the complication and formal request of the common law pleading standard by establishing the code pleading standard. The code pleading standard required that the plaintiff only had to state detailed and specific facts in the complaint, and there were no requirement for forms. However, although the code pleading standard completely abandoned the strict writ requirement of the common law pleading standard, it inadvertently added new requirement. According to the requirement of the code pleading standard, the statement must be factual and non-evidentiary nor conclusory, which increased the difficulty to differentiate the three and thus still caused difficulty for plaintiff to sue.Since the Federal Rules of Civil Procedure(hereinafter referred to as the "FRCP") was passed in 1938, the notice pleading standard in Rule 8(a)(2) completely lowered the insurmountable pleading standard, abandoning a certain complex form requirement and specific factual allegation requirement. The notice pleading standard only required that the plaintiff should provide a short and plain statement in the complaint showing that the pleader is entitled to relief. Therefore, after the notice pleading standard replaced the code pleading standard, a large number of civil cases began to pour into the federal court system, resulting in a large backlog of cases in the court and a sharp decline of efficiency to case handling. It was until the emergence of the Bell Atlantic Corp. v. Twombly case in 2007 and Ashcroft v. Iqbal case in 2009 that the notice pleading standard began to came down the stage after ruling for more than half a century. The two cases once again raised the pleading standard, requiring that the complaint must be plausible, that is, the plaintiff’s allegation of facts must have certain procedural value showing the entitlement of relief. In such a way, the abuse of litigation could be prevented and the burdensome workloads of the federal courts could then be reduced.The “plausibility” standard established in the Twombly and Iqbal case not only caused heated discussions among the legal scholars, but also suddenly changed the application scope of certain relevant rules in the FRCP. For example, the defendants increasingly applied Rule 12(b)(6) regarding plaintiff’s “failure to state a claim upon which relief can be granted”, which had hindered a large number of cases entering into the courthouse at an early stage. In addition, the two cases changed the attitude of the American lawyers towards writing the federal civil complaints. The plausible pleading also demands high level of legal writing towards the lawyers, so that they dare not slacken the complaint even for a word. After the Twombly and Iqbal cases, if the lawyers hastily wrote a complaint without careful modifications, the other party may easily ask the court to reject the case for “not complying with the plausible pleading standard”, which would be an irreparable mistake for the lawyers. According to the notice pleading standard, three sentences were enough for a “short and plain” requirement. However, after the Twombly and Iqbal cases in 2007 and 2009, the complaint must state in detail about the facts and damage suffered, so that the specific facts stated could prove that the plaintiff is entitled to relief.Thus, this paper gave an example of writing the complaint by applying an adapted case from the American law school about the disputes of the right to use a child’s name from a famous Hollywood couple. One example of the civil complaint would apply the notice pleading standard, while the other example would apply the plausible pleading standard. By comparing and contrasting, and by analyzing both the similarities and differences of the two complaints, this paper illustrates the changes that the American lawyers must experience after change of pleading standard, as well as certain relevant matters for them to notice. According to the notice pleading standard, only jurisdiction, matters of fact, and damages and remedies needed to be included in the complaint. In this case, the plaintiff only needs to inform the court and the other side that the federal court in California has jurisdiction over the case, and the incident is about the clothing and supplies company infringing upon the child’s name without prior consent of the plaintiff, thus requesting compensation and stop of the infringement. However, compared to the notice pleading standard, the plausible pleading standard requires a detailed and in-depth description of the incident part, so that the claims made by the plaintiff have detailed support to avoid rejection by the court through “conclusory” claim or “unable to entitle a possible relief”. If the court rejected the case raised by the plaintiff, the pleader could no longer sue the defendant by applying the same factual matters. In this case, the complaint must add the facts that the plaintiffs are public figures with a certain influence to the public, which then derive the fact that the conduct of the defendant would cause a serious negative effect on the plaintiff’s public image and brand. In addition, malicious infringement and unfriendly motive of the defendant must also be added to the complaint, so as to better convince the judge that the plaintiff suffered intentional torts by the defendant, and a loss of reputation which seriously affected the brand of the plaintiff that needed legal remedy and protection.Therefore, after the Twombly case and Iqbal case established the plausible pleading standard, the lawyers in the United States suffer great pressure when writing a federal civil complaint. They must not only master a large quantity of fact basis, but also carefully consider the content selection of the facts. Additionally, due to the sufficient and detailed facts requirement of the plausible pleading standard, the length of the complaint greatly increased. The civil complaint no longer contain only three sentences, but it would become a lengthy yet detailed complaint, preventing the defendant ask the court to reject the case under Rule 12(b)(6).Shortly after the establishment of the plausible pleading standard, a wide controversy among American scholars was taken place. Some supporters of the decision made by the Twombly and Iqbal court believed that such standard would exclude valueless cases and malicious litigation from justice. Besides, since Twombly and Iqbal cases are quite special cases, in which the Twombly case involved a huge class action while the Iqbal case involved several senior officials and state secrets, so these cases must be tilted to the efficiency value. The cases should be strictly judged from the very beginning whether to proceed or not, or whether the plaintiff should be entitled to possible relief. While some other people criticized the establishment of the plausible pleading standard because they believed that it violated the justice and fairness of the American value, which was also unconstitutional. The opponents to the Twombly and Iqbal courts pointed out that the two cases in fact changed Rule 8(a)(2) in the FRCP, which were not conform to the procedural rules. According to the U.S. Constitution, only the United States Congress could modify the FRCP, not the judicial department. In addition, many valuable cases in the beginning of the procedure could not meet the requirement of the plausible pleading standard since many factual bases are hard to obtain in the very beginning, and it was not until the discovery stage that the plaintiff could prove the value of the case through exchange of evidence and further investigation. Furthermore, the word “plausible” itself is ambiguous, which leads to the unpredictable result of the facts provided by the lawyers, making them more like gambling for the unknown future. Indeed, due to the fact of the low bar of the notice pleading standard had cause the backlog of cases in the federal courts, the court had to once again raise the bar of the pleading standard and incline to the efficiency value, excluding obvious valueless cases from courts and thus adding the screening function of the complaint. In fact, it is an inevitable trend to initiate the screening function of the complaint with the development of times. However, the screening function could not simply refer to individual cases in establishing the degree and standard of the function, but formulate appropriate standard through mature policy consideration.The establishment of the plausible pleading standard by the United States Supreme Court was of divergent opinions, but it does not mean that the historical traces of the establishment of the plausible pleading standard are of no value to the Chinese civil pleading standard. China revised its Civil Procedure Law in 2012; yet article 119-121 of the law regarding the pleading standard did not clarify the standards for court examination. Moreover, the current Civil Procedure Law and its recently announced judicial interpretation did not specify the degree of the “facts and reasons” required, nor did it specify the degree of the “evidence” required by the law in the complaint. Therefore, in the context of the judicial reform and rule of law in China, the pleading procedure remains to be discussed and perfected by the scholars and judicial departments in China. At the same time, however, the relevant civil pleading system and the historical development of the civil pleading system in the United States could play a role for inspirational thoughts.