Federal and state courts each have their own separate rules of civil procedure, but it’s a long-standing tenet of Rhode Island law that state and federal rules with similar language are generally interpreted the same. Heal v. Heal, 762 A.2d 463, 466-67 (R.I. 2000) (“[W]here the Federal rule and our state rule are substantially similar, we will look to the Federal courts for guidance or interpretation of our own rule.”); see also Pullar v. Cappelli, 148 A.3d 551, 556 (R.I. 2016) (same); Plante v. Stack, 109 A.3d 846, 855 n.6 (R.I. 2015) (same).
One notable exception to lock-step interpretation of similar procedural rules is Rule 12(b)(6), one of the most prominent, important, and frequently-used rules in the federal and state systems. Federal Rule of Civil Procedure 12(b)(6) and Rhode Island Rule of Civil Procedure 12(b)(6) have identical language – they both say that a complaint can be dismissed for “failure to state a claim upon which relief can be granted.” The Rule allows a party defending a case to argue that the suit should be dismissed even if all the allegations in the complaint are true, on the theory that those allegations do not give rise to legal liability against the person defending the claim. Rule 12(b)(6) can be an effective procedural tool for defendants, and it is also employed sua sponte by federal courts under 28 U.S.C. §§ 1915(e), 1915A, when reviewing cases brought by litigants (such as prisoners) who cannot afford the $400 fee for filing a complaint in federal court.
For a long time, Federal Rule 12(b)(6) and State Rule 12(b)(6) got along like peas in a pod. After the United States Supreme Court decided Conley v. Gibson in 1957, federal courts and Rhode Island state courts employed the same test for Rule 12(b)(6) motions: a complaint should survive a Rule 12(b)(6) motion to dismiss “unless it is demonstrated beyond a reasonable doubt that under no set of facts which might be proven in support of the complaint might a claim be made out upon which relief could be granted.” Vinagro v. Reitsma, 260 F. Supp. 2d 425, 428 (D.R.I. 2003); Parente v. Southworth, 448 A.2d 769, 771 (R.I. 1982). This is a lax standard that does not require heavy lifting. Something along the lines of “I was driving a car, the person driving the other way hit me” is usually enough to defeat a Rule 12(b)(6) motion to dismiss under Conley v. Gibson.
Eventually, the United States Supreme Court decided it didn’t like Conley v. Gibson anymore. But instead of changing the text of Rule 12(b)(6) through the normal rules revision process that happens every year, the United States Supreme Court reinterpreted the text in two watershed cases decided in 2007 and 2009. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Before and after these cases, the text of Rule 12(b)(6) still says what it’s always said, “failure to state a claim upon which relief can be granted.”
In what’s become known as the Twombly/Iqbal standard, the United States Supreme Court discarded the “no set of facts” and “beyond a reasonable doubt” language from Conley v. Gibson, and announced a new rule of interpretation for Rule 12(b)(6) that requires that the factual allegations in the complaint must be “plausible” and not merely “conceivable.” Under the new Twombly/Iqbal standard, the factual allegations are separated from the conclusory legal allegations in a complaint, and the court reviews only the factual allegations to determine if they support a reasonable inference that the defendant is liable for the misconduct alleged in the complaint. Courts are also authorized to rely on their own judicial experience and common sense under Twombly/Iqbal.
The new Twombly/Iqbal rule put more teeth into Federal Rule 12(b)(6) motions and made them more likely to succeed. But it also put state courts in quandary. In the past, Rhode Island courts looked to federal guidance to interpret State Rule 12(b)(6) and cited favorably to Conley v. Gibson. See Geremia v. Wells, C.A. NO. 80-2636, 1983 R.I. Super. LEXIS 67, at *3 (R.I. Super. Ct. July 18, 1983). Would Rhode Island courts follow the federal lead after Twombly/Iqbal and tighten their own pleading standards, or continue using the old Conley v. Gibson regime that existed for over 50 years? Some states, like Massachusetts, quickly adopted the new Twombly/Iqbal standard for their own state courts. Iannacchino v. Ford Motor Co., 451 Mass. 623, 636, 888 N.E.2d 879, 890 (2008).
To date, the Rhode Island Supreme Court continues to adhere to the traditional Conley v. Gibson pleading standard, without squarely addressing whether it will adopt Twombly/Iqbal in the future. For example, in a 2014 case, the Rhode Island Supreme Court noted that “[t]his Court has not yet addressed whether continued adherence to our traditional Rhode Island standard is appropriate or whether the new Federal guide of plausibility should be adopted . . . we leave the Twombly and Iqbal conundrum for another day.” Chhun v. Mortg. Elec. Registration Sys., 84 A.3d 419, 422-23 (R.I. 2014). Again, in 2015, the Rhode Island Supreme Court noted that it has “yet to adopt” the Twombly/Iqbal standard. Dilibero v. Mortg. Elec. Registration Sys., 108 A.3d 1013, 1016 (R.I. 2015).
A recent decision by Judge Sullivan in Rhode Island’s federal district court, Hernandez v. MERS, illustrates the real-world consequences that flow from the current differences in state and federal pleading standards in Rhode Island.
In Hernandez, after the plaintiff filed suit in state court, the defendants removed the case to federal court and filed a Rule 12(b)(6) motion to dismiss. This had the practical effect of transmogrifying the applicable standard of review from the laxer Conley standard to the stricter Twombly/Iqbal rule.
Utilizing Twombly/Iqbal, Judge Sullivan dismissed the plaintiff’s lawsuit. But in the decision, Judge Sullivan opined that the result might have been different had she employed the Conley v. Gibson standard as applied by the Rhode Island Supreme Court. Critical to the distinction was Judge Sullivan’s observation that the Rhode Island Supreme Court’s treatment of an allegation as “factual” — in the sense that under Conley v. Gibson it must be clear beyond a reasonable that no set of facts could support a legal claim — can sometimes be treated as a “legal conclusion” under Twombly/Iqbal in federal court. Judge Sullivan treated an allegation as a legal conclusion that the Rhode Island Supreme Court had previously treated as factual in a prior case, and this treatment led to Judge Sullivan’s rejection of the allegation under Twombly/Iqbal, resulting in dismissal of the lawsuit in federal court.
Judge Sullivan’s Hernandez decision raises some Rule 12(b)(6) conundrums. Where is the demarcation line between a factual allegation (which must be accepted as true) and a legal conclusion (to which federal judges can give The Heisman)? Should the result be different if the case is removed based on a federal cause of action — as opposed to diversity jurisdiction, in which the federal judge will apply Federal Rule 12(b)(6) to a state-law cause of action? What about supplemental jurisdiction of state-law claims in federal court? If a federal judge would dismiss a case under Twombly/Iqbal, but it would survive under Conley v. Gibson, is it better for the federal court to decline supplemental jurisdiction and send the case back to state court? Or should the plaintiff get a chance to amend the pleading in federal court to survive Twombly/Iqbal? On the last point, Judge Sullivan’s Hernandez decision recognizes the “discrepancy between the Twombly/Iqbal standard used in federal court and the Conley standard still applicable in state court” and says the federal district court “has been even more liberal in permitting plaintiffs in removed cases to amend to align with the stricter federal standard, as long as the additional facts render the pleading plausible.”
As long Rhode Island state courts follow one Rule 12(b)(6) standard and the federal court follows another, litigants with similar pleadings will experience different results in different courthouses. The varying results are based in part on the subtle mix of different state and federal court procedural rules as applied to substantive legal claims. This is part of the interstitial nature of state and federal courts. Some describe it as akin to a marble cake or layer cake.
Perhaps a better metaphor is the old Gershwin song: The Feds say Twombly, the States say Conley, POTato, PotATO, TOMato, TomATO, let’s call the whole pleading thing off . . .