What are we thankful for? How about TwIqbal? One of our colleagues the other day asked us whatto do about a catch-all “otherwise negligent” language in a complaint removedto federal court from Pennsylvania, and we immediately said “TwIqbal.”
Personal note: we’ve hated these catch-all allegations ever sinceConnor v. Allegheny General Hospital, 461 A.2d 600, 602 (Pa. 1983), inwhich the since-impeached Rolf Larsen relied on such blatant boilerplate to letplaintiffs with new theories escape the statute of limitations – thereby giving rise toinnumerable time-wasting “Connor” preliminary objections.
But we also thought “blogpost,” since we haven’tbefore covered that precise question.
So let’s find out if our kneejerk reaction wasright or not.
The answer is yes (our knees still jerk properly).
We’ll start with Reed v. Pfizer, Inc., 839F. Supp.2d 571 (E.D.N.Y. 2012), where one of the allegations that was TwIqballedwas that the product – a prescription drug − “was otherwise negligently andrecklessly advertised, marketed, promoted, distributed, and sold.” Id. at 573. The court reamed out plaintiff’swarning-related claims (and everything else, actually) under TwIqbal:
Pointedly, these allegations do not include any factualcontent regarding what the misrepresentations were or how the provided warningsand information failed to “accurately reflect” reality; they do not provide aplausible basis to support an inference [defendants] misrepresented anything.
Id. at 576. Since Reed is a drug case, it’s closest in terms of subjectmatter to where we play.
Next we like Gority v. Norfolk Southern RailwayCo., 2011 WL 4542676 (W.D. Pa. Sept. 28, 2011), because it’s closestsubstantively – not only is it another Pennsylvania complaint with the Connorboilerplate, but the court takes care of the TwIqbal issue most pithily:
Plaintiff asserts that Defendant “[w]as otherwisenegligent . . . in ways not specifically alleged.” This barebones, catch-all assertion ofnegligence provides no information as to what duties existed or how Defendantmay have breached them. Absent suchinformation, there is no way that Defendant can reasonably prepare a response. If Plaintiff plans to rely on other theoriesof negligence not specifically pled in the Complaint, he must state them.
Id. at *7 (citation to complaint omitted). So there.
In the interests of completeness (we hate doingresearch for nothing) here are some more cases that get rid of “otherwise”catchall allegations. In Rua v.Glodis, 2012 WL 4753279, *4 (D. Mass. Oct. 3, 2012), the court held that “Plaintiff'smere assertion that [defendant's] conduct was negligent or otherwise violated his rightsis insufficient to satisfy the minimal pleading requirements of Rule 8(a)” –that is to say TwIqbal. Similarly, in Grieser v. Montgomery, 2012 WL 1906379 (N.D. OhioMay 25, 2012), the plaintiff alleged (among other things) that the defendants“otherwise were negligent.” Theallegations received judicial opprobrium:
These are bare legal conclusions, clearly insufficientunder Twombly and Iqbal. Without more factual matter alleged, these claims are not faciallyplausible. . . . Plaintiff does not even allege all the elements of these causes ofaction, let alone factual matter supporting a reasonable inference about eachelement, and this alone is fatal.
Id. at *6. See Dominguez v. Corbett, 2010 WL 3619432, at *5 (D. Ariz.Aug. 5, 2010) (allegation that defendant acted “negligently or otherwise” “doesnot provide fair notice of the grounds upon which it rests” and was “athreadbare recital of the element of a cause of action . . . insufficientto survive a motion to dismiss”); Lawrence v. City Cadillac, 2010 WL5174209, at *8 (S.D.N.Y. Dec. 9, 2010) (a “catchall claim, without facts otherthan a clause incorporating the plaintiff's prior allegations by reference, isinsufficient to show the plaintiff is entitled to relief”)
Be thankful. Whether or not catch-all “otherwise negligent” allegations have anysubstantive effect under federal practice (against the statute of limitationsor in any other way), there’s no need to risk exposing your client to it. Such allegations are vulnerable to TwIqbal.
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