II 111th CONGRESS 2d Session S. 4054 IN THE SENATE OF THE UNITED STATES December 22, 2010 Mr. Specter introduced the following bill; which was read twice and referred to the Committee on the Judiciary A BILL To restore the law governing pleading and pleading motions that existed before the decisions of the Supreme Court of the United States in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).

1.

Short title

This Act may be cited as the Notice Pleading Restoration Act of 2010.

2.

Findings

Congress finds that— (1)the decisions of the Supreme Court of the United States in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), decided on May 21, 2007, and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), are inconsistent with— (A)fundamental premises underlying the Federal Rules of Civil Procedure; (B)the purposes of the Federal Rules of Civil Procedure; (C)the previous decisions of the Supreme Court interpreting those rules, including Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); and (D)congressional expectations formed and relied upon over a period of more than 70 years; (2)the law governing pleading and pleading motions should be restored to the status quo before those decisions, pending thorough study by appropriate institutions through processes that are open and inclusive; (3)except when provided for by statute, changes in the Federal Rules of Civil Procedure— (A)should occur— (i)through the process for formally amending those rules established under section 2073 of title 28, United States Code; (ii)under the procedures prescribed by the Judicial Conference of the United States; and (iii)subject to prior review by Congress under section 2074(a) of title 28, United States Code; and (B)should not occur through judicial decisions; (4)time is of the essence because the imposition of heightened pleading requirements creates the risk of— (A)irreparable injury to litigants who lack the information or resources to comply with the recent pleading decisions of the Supreme Court; and (B)the frustration of important public policies underlying Federal statutes that the enacting Congress intended to be enforced through private civil litigation; (5)before May 21, 2007, some lower courts disregarded decisions of the Supreme Court interpreting the Federal Rules of Civil Procedure relating to pleading and pleading motions, and undermined the system of notice pleading intended by those rules and decisions, by insisting on heightened pleading requirements; (6)as the Supreme Court held in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and Leatherman v. Tarrant County, 507 U.S. 163 (1993), the appropriate procedure for disposing of factually unmeritorious claims is summary judgment; and (7)the interpretation of the Federal Rules of Civil Procedure should not be based in whole or part on the heightened standards in the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 77k et seq.; Public Law 104–67) or on the special circumstances that prompted Congress to adopt that Act.

3.

Notice pleading restoration

(a)

In General

Except as expressly provided by an Act of Congress enacted before, on, or after the date of enactment of this Act (including the Private Securities Litigation Reform Act of 1995 (15 U.S.C. 77k et seq.; Public Law 104–67) and decisions interpreting that Act) or by an amendment to the Federal Rules of Civil Procedure effective on or after that date, the law governing a dismissal, striking, or judgment described under subsection (b) shall be in accordance with the Federal Rules of Civil Procedure as interpreted by the Supreme Court of the United States in decisions issued before May 20, 2007. (b)

Dismissals, strikings, or judgments

A dismissal, striking, or judgment referred to under subsection (a) is— (1)a dismissal or striking of all or any part of a pleading containing a claim for failure to state a claim, indefiniteness, or insufficiency; or (2)a judgment on the pleadings.

4.

Effective date

This Act take effect on the date of enactment of this Act and apply to— (1)any action pending in any court of the United States on that date; and (2)any action filed on or after that date.