Pleading Conditions of the Mind Under Rule 9(b): Repairing the Damage Wrought by Iqbal

In 2009, the Supreme Court decided Ashcroft v. Iqbal, in which it pronounced-among other things- that the second sentence of Rule 9(b) of the Federal Rules of Civil Procedure-which permits allegations of malice, intent, knowledge, and other conditions of the mind to be alleged generally -requires adherence to the plausibility pleading· standard it had devised for Rule 8(a)(2) in Bell Atlantic Corp. v. Twombly. That is, to plead such allegations sufficiently, one must offer sufficient facts to render the condition-of-the-mind allegation plausible. This rewriting of the standard imposed by Rule 9(b)\u27s second sentence-which came only veritable moments after the Court had avowed that changes to the pleading standards could only be made through the formal rule amendment processs-is patently unsupportable for two reasons. First, the Iqbal Court\u27s interpretation of Rule 9(b) is at odds with a proper text-based understanding of the Federal Rules: (1) The plausibility pleading obligation purports to be derived from the Rule 8(a)(2) obligation to show entitlement to relief, an obligation that reflects the standard for sufficiently stating claims, not the standard for sufficiently stating the individual component allegations thereof-which is found in Rule 8(d)(l), not Rule 8(a)(2); (2) text from elsewhere in the Federal Rules and from the Private Securities Litigation Reform Act (PSLRA) reveals that the Iqbal interpretation of Rule 9(b) is unsound; and (3) evidence from the now-abrogated Appendix of Forms-in effect at the time of Iqbal-contradicts any attempt to place a plausibility pleading gloss on Rule 9(b). Second, the Court\u27s alignment of Rule 9(b)\u27s second sentence with the 8(a)(2) plausibility pleading standard runs counter to the original understanding of Rule 9(b), which was borrowed from English practice extant in 1937. A review of the English rule that formed the basis of Rule 9(b), as well as the English jurisprudence surrounding that rule at the time, make clear that Rule 9(b) cannot be faithfully interpreted as requiring pleaders to set forth the circumstances from which allegations pertaining to conditions of the mind may be inferred. Beyond reflecting an errant interpretation of Rule 9(b), the Iqbal understanding has resulted in tremendous harm to litigants seeking to prosecute their claims. Lower courts have embraced the Iqbal revision of Rule 9(b) with zeal, dismissing claims for failure to articulate facts underlying condition-of-mind allegations left, right, and center. This is undesirable not only because it turns on its head a rule that was designed to facilitate rather than frustrate such claims, but also because it contributes to the overall degradation of the rules as functional partners in the larger civil justice enterprise of faithfully enforcing the law and vindicating wrongs. In light of these ills arising from Iqbal\u27s adulteration of Rule 9(b), it should be amended to make the original and more appropriate understanding of the condition-of-mind pleading requirement clear, or at least revised to conform its language to the Iqbal Court\u27s reimagining of it. What follows is an exploration of these points