The liberal pleading standard of Conley v. Gibson, 355 U.S. 41 (1957), is no more. As nearly every federal litigator knows by now, the U.S. Supreme Court recently announced a significant change in its interpretation of Rule 8 of the Federal Rules of Civil Procedure. See Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 554 (2007). It is now more difficult for a plaintiff to state a claim in federal court. The immediate implications of the change are fairly clear: it takes more than mere speculation to enter the door to federal court. But the change also has another important practical implication that might be less clear; it impacts the ability of a party to plead inconsistent claims.
Federal Rule 8 governs pleading in federal court. Subsection (a) of that rule states that a complaint need only provide “a short and plain statement of the claim showing that the pleading is entitled to relief.” Unlike jurisdictions that adhere to so-called issue or fact pleading, the federal system is premised on notice pleading, whereby the purpose of the complaint is merely to provide notice to the defendant, court and public about the general nature of the claim.
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