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It Gets Harder (possibly much harder) to File a Lawsuit in Massachusetts

One of the things that drives people crazy is how easy it is to file a lawsuit, and conversely how difficult it is to persuade a judge to dismiss a lawsuit before the defendant incurs the costs of discovery and summary judgment. It has long been the law in Massachusetts that a complaint should not be dismissed “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.” Nader v. Citron, 372 Mass. 96 (1977). This is a very difficult (some would say metaphysical) standard. Under it dismissal has been limited to black and white situations where the plaintiff has failed to allege the basic elements of a cause of action, or where (for example) a statute of limitations defense is apparent on the face of the complaint.

No more. Last year the U.S. Supreme Court rejected this standard in the federal court (Bell Atlantic Corp. v. Twombly), holding that a complaint (the document that initiates a lawsuit) must assert a claim to relief that is “plausible on its face.” The complaint must allege facts plausibly suggesting a right to relief. Vague assertions intended to satisfy the “no set of facts” standard will no longer suffice.

The Massachusetts state courts often follow the federal courts when it comes to matters of procedure, and in June the Supreme Judicial Court expressly adopted the Twombly standard in Iannachino v. Ford Motor Company (“we take the opportunity to adopt the refinement of that standard that was recently articulated by the United States Supreme Court in . . . Twombly“).

Of course, the devil is in the details when it comes to how specific, detailed and complete a set of facts must be to plausibly suggest a particular plaintiff’s right to relief. The lower federal courts are struggling to apply the Twombly standard in various contexts, and I expect a similar process to take place in the state courts in the coming years. One thing is certain, however – filing a complaint in state court has just gotten more difficult, and the chances of obtaining early dismissal has improved for defendants.

Traps for the Unwary – Waiver

What do lawyers fear the most? Spiders, snakes, public speaking, death by auto de fe?

Well, I’ll be darned if I know, but one thing that scares the bejesus out of all thinking lawyers is waiver. Lawyers start to become vaguely aware of this horror in law school. Once they go out into practice it slowly dawns on them that it’s ultimately undefinable, that it lurks behind every legal shrub and tree, that opposing counsel will throw it in your face when you least expect it and long after you can fix it, and that if they don’t a court may do so on its own initiative. In its most severe forms it can lead to bankruptcy, scandal, and even malpractice (apologies to Jimmy Stewart).

Take a simple summary judgment motion in federal court. Unbeknownst to the novice lawyer, this process is fraught with dangers. The defendant files the motion. You file an opposition. The defendant files a reply affidavit introducing new facts. You lose the motion, and on appeal you argue that it was inappropriate for the defendant to introduce new facts in its reply. Youauto de f� cite the “no new facts” rule. After all, you were sandbagged by that reply, and the court shouldn’t have relied upon it.

Not so fast, the First Circuit recently held on these facts – did you raise this with the district court and object to the new evidence? If not you have waived the right to raise this on appeal. Desrosiers v. Hartford Life (2008). You lose.

A simple, one page motion to strike that could have been drafted and filed in an hour would have saved the day. For want of a nail …

Waiver, one of the most dreaded words a lawyer can hear. And so it goes.