Volume 110

Stolen Plausibility

by Marcus Alexander Gadson

Access to justice advocates worry that heightened pleading standards best represented by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal are a difficult hurdle for plaintiffs. But they have entirely ignored a related development that may be an insurmountable one: the doctrine of stolen plausibility. Born at the same time the legal system has raised pleading standards, this doctrine holds that it is inherently illegitimate for plaintiffs to rely on litigation materials from third parties in their complaints, even where those materials furnish the only realistic source of information that would help plaintiffs satisfy heightened pleading standards and when the borrowed materials would make the complaint meritorious. To do this, courts have drawn on Federal Rules of Civil Procedure 11 and 12(f). This Article steps back from the narrow lens of these two Rules to examine the doctrine of stolen plausibility with broader considerations of fairness in mind. It makes a normative case for allowing plaintiffs to rely on third-party materials in their complaints to throw them a necessary lifeline in their struggles to survive motions to dismiss their complaints, to treat them the same as other parties in the legal system that rely on third parties’ work product, and to let them profit from government litigation materials designed to serve them above all else. It then demonstrates that neither the text nor the history of Rules 11 and 12(f) supports the doctrine of stolen plausibility. Finally, it asserts that the policy justifications that might support the doctrine of stolen plausibility—such as incentivizing plaintiffs to conduct diligent pre-suit investigations—are not strong enough to outweigh this Article’s fairness concerns. 

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