Texas’ Fair-Notice Pleadings Standard May Be In Trouble

by Zelle LLP
Contact

In Texas, the lax “fair-notice” pleading requirement has resulted in the widespread practice of plaintiffs’ attorneys simply cutting and pasting from a previous pleading when filing suit. However, the recent enactment of Texas Rule of Civil Procedure 91a, which allows courts to dismiss unfounded causes of action, may result in a more heightened pleading standard that will force plaintiffs’ counsel to include more factual allegations to avoid dismissal.

Texas and Federal Pleading Requirements

“Texas follows a ‘fair notice’ standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.”[1] A state court petition is to be liberally construed and is adequately pleaded if one can reasonably infer a cause of action from what is stated in the petition, even if the pleading party fails to allege specifically one of the elements of a claim.[2]

In contrast, the federal pleading standard is more stringent than the Texas pleading standard. Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a cause of action can be dismissed if the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.”[3]

The plausibility test is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”[4]

A complaint must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[5] When a pleading does not contain factual allegations sufficient to allow the court to infer more than the mere possibility of misconduct, the pleading falls short of showing that the pleader is entitled to relief.[6]

Rule 91a

Until recently, the Texas Rules of Civil Procedure did not have a similar mechanism to Rule 12(b)(6). However, in 2011, the Texas Legislature instructed the Supreme Court of Texas to “adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.”[7] As a result, on March 1, 2013, Rule 91a of the Texas Rules of Civil Procedure became effective. That rule reads, in pertinent part:

[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.[8]

Courts applying Texas law are now struggling with the impact that Rule 91a will have on the “fair-notice” pleading standard in Texas.

Bart Turner & Associates v. Krenke

In Bart Turner & Associates v. Krenke, a Northern District of Texas court specifically discussed Rule 91a’s impact on the state pleading requirements.[9] In Bart Turner, the plaintiffs alleged claims of conspiracy and tortious interference “with employment and agency contracts” between plaintiffs and their employees. The defendants removed to federal court based on diversity jurisdiction. Defendants claimed that the one nondiverse defendant was fraudulently joined.

In considering the plaintiffs’ motion to remand, the court noted that it could conduct a Rule 12(b)(6)-type analysis to determine whether the plaintiff properly stated a claim against the nondiverse defendant.

As an initial matter, the court found that because the case was originally filed in state court, the state court pleading requirements would govern in a motion to dismiss analysis.[10] The court noted that although the standard for pleading in Texas is still fair notice, “fair notice must now be judged in the context of Rule 91a.”[11]

Examining the pleading at issue, the Bart Turner court found that the allegations in the petition were “bare-bone” or “threadbare.”[12] Accordingly, since they were wholly conclusory, the court found that the allegations against the nondiverse defendant did not meet the “fair-notice” standard that governs in the Texas court system.[13]

The question is whether the court, based on the allegations of the pleadings at the time of removal, has a reasonable basis to predict that plaintiffs might recover against Gibson, the nondiverse defendant, on the claims asserted. There are simply no underlying facts to support the conclusory statements that Gibson “conspired” or “tortiously interfered” with a party's contractual relationship. At a minimum, a claim or cause of action must assert basic facts as a starting point on which to build. Here, there are not even minimal facts for a reasonable person to understand the factual bases for plaintiffs' claims against Gibson. Consequently, there are no allegations upon which to draw a reasonable inference that plaintiffs are entitled to relief from Gibson. The court determines that the allegations are woefully inadequate for it to predict that plaintiffs might be able to recover against Gibson on the claims asserted. Accordingly, the court concludes that Gibson was improperly joined to defeat diversity jurisdiction, and thus denies the motion to remand.[14]

While the allegations at issue would not have satisfied either pleading standard, the takeaway from the Bart Turner decision is that the “fair-notice” pleading standard is now being judged in the context of Rule 91a. To avoid being dismissed, plaintiffs need to ensure that their petition contains sufficient factual allegations to support their causes of action. In other words, simply pleading the elements of a cause of action without supporting factual allegations is no longer sufficient in the state of Texas.

GoDaddy.com LLC v. Toups

In GoDaddy.com v. Toups, the plaintiffs filed suit against GoDaddy seeking to hold it liable for the content on two websites that were hosted by GoDaddy.[15] GoDaddy filed a Rule 91a motion to dismiss on the basis that it was immune from liability based on Section 230 of the Communications Decency Act (CDA).[16] The trial court denied the motion and GoDaddy was granted leave to file an interlocutory appeal.

On appeal, the Beaumont Court of Appeals noted that Rule 91a is analogous to Federal Rule 12(b)(6) and cited solely to case law applying Rule 12(b)(6) to set forth the standard for a motion to dismiss.[17] Since the court of appeals found that GoDaddy was immune from suit as a matter of law, the pleading standard that applied was largely irrelevant. However, it is noteworthy that without mention of the “fair-notice” pleading requirement, a Texas state court appeared ready to apply the federal pleading standard in its consideration of the Rule 91a motion to dismiss.

In light of the Bart Turner court’s acknowledgement that the “fair-notice” standard is now judged in the context of Rule 91a and the GoDaddy court only referencing federal case law in ruling on a Rule 91a motion, it would not be surprising if, over time, the pleading requirements in Texas state courts begin to look more like the federal pleading standards.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000).

[2] Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993).

[3] Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Reliable Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.2008).

[4] Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted).

[5] Twombly, 550 U.S. at 555 (citation omitted).

[6] Iqbal, 556 U.S. at 679.

[7] See Tex. Gov't Code Ann. § 22.004(g) (West 2013).

[8] Tex.R. Civ. P. 91a.1.

[9] No. 3:13-cv-2921-L, 2014 WL 1315896 (N.D.Tex. Mar. 31, 2014).

[10] Id. at *5.

[11] Id.

[12] Id.

[13] Id.

[14] Id. at *6.

[15] No. 09-13-00285-CV, 2014 WL 1389776 (Tex.App.-Beaumont Apr. 10, 2014) (unpublished).

[16] Section 230 of the CDA provides, “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” 47 U.S.C. § 230(c)(1).

[17] Id. at *2. 

Texas Law360 - June 2, 2014

 

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Zelle LLP | Attorney Advertising

Written by:

Zelle  LLP
Contact
more
less

Zelle LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!