27 June 2016

Plausibility Pleading Reaches Colorado

The Colorado Supreme Court today adopted the plausibility pleading standard of the U.S. Supreme Court cases Twombly and Iqbal in the case of Warne v. Hall by a closely split 4-3 margin.

It did so out of a desire to have harmony between the Federal Rules of Civil Procedure as currently interpreted, and the Colorado Rules of Civil Procedure which are modeled on the federal rules, despite the fact that Twomblyand Iqbal have been widely condemned and almost universally condemned as bad decisions that hurt legitimate plaintiffs in academic circles.

Justice Gabriel's dissent sums up the case against taking this step:
¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable. 
¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.
But, the odious federal standard is now Colorado law as well.

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