Bifurcation

Courts have broad discretion to bifurcate claims pursuant to Federal Rule of Civil Procedure 42(b). In a recent case, the defendant requested that the District Court for the Northern District of Oklahoma bifurcate plaintiff's breach of contract claim from the bad faith claim. The defendant claimed the bifurcation would conserve judicial resources and avoid prejudice to the defendant. The plaintiff did not object to the request.

Nevertheless, in a written opinion, the Court denied the request to bifurcate. The Court noted that it frequently conducts trials involving such claims and that, absent extraordinary circumstances, the Court does not bifurcate contract claims from bad faith claims during the liability/compensatory damages phase. And, the Court found no compelling reason to diverge from its general policy. The Court noted that it would bifurcate the liability/compensatory damages phase from the punitive damages phase, if necessary.

It should be noted that, in the state court system, the trial court (absent unusual circumstances) has no authority to bifurcate the contract claim from the bad faith claim. One Court has noted in an opinion that such "theories are connected and . . . should not be bifurcated." It appears that a state trial court has no discretion in this regard. "[T]he issue of whether the insureds had a legal right to recover from the uninsured motorist was not separable from the question of whether the insurer had a good-faith belief that it had a justifiable reason for withholding payment under the policy." See Newport v. USAA, 2000 OK 59, ¶ 26, 11 P.3d 190, 198

A New Pleading Standard

Rule 8 of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." And, for years, the federal standard for dismissal of a complaint for failure to state a claim was that "a complaint should not be dismissed . . . unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Conley v. Gibson, 355 U.S. 41, 45-45 (1957).

Well, things have changed. Maybe. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the U.S. Supreme Court appears to have adopted a different -- more amorphous -- standard. The Court stated that, while a complaint need not contain detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than "labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level." The threshold requirement of Rule 8(a)(2) is that the "plain statement" possess enough heft to "show that the pleader is entitled to relief." The Court described the requirement as one of "plausibility." The factual allegations must plausibly state a claim. The Court laid Conley to rest:

On such a focused and literal reading of Conley's “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery . . . . It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case . . .

We could go on, but there is no need to pile up further citations to show that Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.

Yet, in an opinion issued subsequent to Twombly, the U.S. Supreme Court held that the Tenth Circuit improperly dismissed a sec. 1983 claim for failure to state a claim. See Erickson v. Pardus, 127 S. Ct. 2197 (2007). Citing Twombly, the Court stated that "[s]pecific facts are not necessary; the statement need only 'give the defendant faire notice of what the claim is and the grounds upon which it rests.'" The Court held that the plaintiff had adequately stated a claim by alleging that his medication had been withheld and that prison officials were refusing treatment. The plaintiff, who was pro se, had also attached certain documents to his complaint.

Aside from Erickson, the Tenth Circuit Court of Appeals has already latched on to the Twombly standard. In The Ridge at Red Hawk, L.L.C v. Schneider, 2007 WL 1969681 (10th Cir. 2007), the Court (via Judge Kelly), recognized the new Twombly standard. Quoting Twombly, the Court noted that a complaint must contain "enough facts to state a claim to relief that is plausible on its face." In other words, the plaintiff must "nudge his claims across the line from conveivable to plausible."

Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

In another case, the Tenth Circuit discussed the Twombly and Erickson cases, and re-emphasized that the standard was one of "plausibility" -- courts should look at the "specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." See Alvarado v. KOB-TV, L.L.C., 2007 WL 2019752, 7 n.2 (10th Cir. 2007); see also Nasious v. Two Unknown BICE Agents, 2007 WL 1895877 (10th Cir. 2007) ("After all, these are, very basically put, the elements that enable the legal system to get weaving -- permitting the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits."); White v. Ockey, 2007 WL 1600483 (10th Cir. 2007) (affirming dismissal of Fair Housing Act claim because "the complaint [was] so bare of pertinent factual allegations"). Notably, Judge Payne from the Northern District of Oklahoma has applied Twombly in a recent decision.

An aside: the new Twombly standard does not apply in the state court system. Oklahoma state courts follow what one might call a hyper-Conley standard. A petition filed in state court cannot be dismissed for failure to state a claim "unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." See Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The Fanning Court did state that a plaintiff's pleading burden consisted of providing notice of the claim and "the grounds upon which they rest," implying that some factual recitation would be appropriate.

The New Five-Part "Garcetti-Pickering" Test

Following a recent Supreme Court case, Garcetti v. Cebalis, 126 S.Ct. 1921 (2006), freedom of speech retaliation claims are now governed by a new five-part test. In Garcetti, the Court held that speech by a public official is only protected if it is engaged-in as a private citizen, not if it is expressed as part of the official's public duties. (An audio recording of the oral argument for Garcetti can be found here.)

Prior to Garcetti, courts charged with evaluating such free-speech claims used a test called the "Pickering-Connick" test. However, in the aftermath of Garcetti, the test has been referred to as the "Garcetti/Pickering" analysis. And, the Courts have added an additional step to the traditional four-part test.

In evaluating retaliation claims, the district court now asks the following questions:

(1) Does the governmental employee speak "pursuant to his official duties"? If so, there is no constitutional protection because the restriction on speech "simply reflects the exercise of employer control over what the employer itself has commissioned or created." Garcetti, 126 S. Ct. at 1960.

(2) If the employee does not speak pursuant to his official duties, but instead speaks as a citizen, is the subject of the speech is a matter of public concern? If the speech is not a matter of public concern, the speech is not protected.

(3) If the employee speaks as a citizen on a matter of public concern, does the employee's interest in commenting on the issue outweigh the interest of the state as employer?

(4) Assuming the employee's interest outweighs the state's interest, was the employee's speech a "substantial factor or motivating factor in a detrimental employment decision"? The employee has the burden of showing this.

(5) Finally, if the employee established that his speech was such a factor, would the employer have taken the same action against the employee in the absence of the protected speech? The employer has the burden of showing this.

The first three steps are to be resolved by a court, and the last two are ordinarily for the trier of fact.

The Tenth Circuit has recently discussed these factors -- in the context of the new 5-part Garcetti-Pickering test -- in the case of Brammer-Hoetler v. Twin Peaks Charter Academy, 2007 WL 2007546 (10th Cir. July 12, 2007). In that case, several former teachers sued a school district claiming they were terminated and retaliated against for exercising certain first amendment rights. The Court reversed a summary judgment in part, but found that a large portion of the plaintiffs' First Amendment claims were barred by the new Garcetti analysis.

The Brammer-Hoetler court struggled to refine the analysis related to determining when an employee speaks pursuant to his official duties. Garcetti declined to articulate a formula for such determinations. After Brammer-Hoetler, it is clear that speech relating to tasks within an employee's "uncontested employment responsibilities" is not protected from regulation (even if such speech relates to an aspect of the job that is not part of the employee's everyday functions). This includes speech that is "generally consistent with the type of activities the employee was paid to do."

An employee's official job description is not conclusive. Speech may relate to official duties even if it deals with activities the employee is not expressly required to perform. If an employee engages in speech during the course of performing an official duty and the speech contributes to the employee's performance of the official duties, the speech is made pursuant to the employee's official duties. Yet, not all speech that occurs at work is made pursuant to the employee's official duties. Rather, the court takes "a practical view of all the facts and circumstances surrounding the speech and the employment relationship."

In Brammer-Hoetler, the Court found nearly all of the speech related to the teacher's "duties as teachers," including: (1) the school's expectations of student behavior, (2) the school's curriculum and pedagogy, and (3) the school's expenditures on instructional aids, furniture and classroom computers. The Court nevertheless held that certain matters were not made pursuant to their official duties, including (1) the resignations of other teachers, (2) whether the school's code of conduct restricted their freedom of speech, (3) staffing levels, (4) the school's expenditures on salaries and bonuses, (5) criticisms of the school board, (6) the visibility of the superintendent and the school board at events, and others.

However, through application of the remainder of the 4 steps of the Garcetti-Pickering test, the Court narrowed plaintiffs' claim to four discrete areas of speech: (1) discussions regarding whether the code of conduct restricted their freedom of speech, (2) matters related to the superintendent's restrictions on speech and association, (3) speech concerning whether the school charter should be renewed, and (4) comments regarding the upcoming board elections. "Speech concerning potential illegal conduct by government officials is inherently a matter of public concern . . . The prospect that the Acadamy's charter might not be renewed is of public concern . . . [and] political speech regarding upcoming Board elections is undoubtedly a matter of public concern." The matter was remanded to the district court for additional proceedings, including the issue of whether the superintendent was entitled to qualified immunity.

Judge Easterbrook, from the Seventh Circuit, has stated that public employers must be able to react to events -- including statements -- that reveal whether employees are faithfully performing their job functions:

Public employers must be able to change assignments in response to events (including statements) that reveal whether employees will be faithful agents of the decisions made by the politically accountable managers. It promotes rather than undermines first amendment values when those who make decisions, and are held accountable for them at the polls, can ensure their implementation within the bureaucracy. Chief Gulledge was entitled to insist that his subordinates not play the “Yes, Minister” game and undermine his directions. The power of transfer is essential if the top of the bureaucracy is to see its decisions through.

See Mills v. City of Evansville, Ind., 452 F.3d 646, 658 (7th Circ. 2006) (cited in Brammer-Hoetler). Further cases will undoubtedly refine the Garcetti-Pickering analysis.

Brown v. Creek County, 2007 OK 56

In answering certain certified questions from the District Court for the Northern District of Oklahoma, the Oklahoma Supreme Court faced the question of whether the time limitations contained in the Oklahoma Governmental Tort Claims Act ("GTCA") or the statute of limitations contained in 12 O.S. sec. 95(A)(11) applied to the plaintiff's claim. The GTCA generally requires that any action brought under the GTCA be filed within 180 days after the claim is denied or deemed denied. The statute of limitations, on the other hand, appeared to require that certain prisoner-lawsuits be brought within one year of "accrual."

HELD: The Court first addressed the date on which a GTCA claim "accures." While recognizing disparate case law on the issue, the Court ultimately concluded that a review of the more "prevalent" articulations "leads one to the inescapable conclusion that a cause of action does not accrue until the claim may be maintained." In the case of a GTCA claim, a claim cannot be maintained until the claim has been denied (or until the claim has been "deemed" denied). This is because the plaintiff has no access to the courts while awaiting the political subdivision's decision.

Once the GTCA claim has "accrued," the GTCA itself governs the time limit within which the action must be filed. The statute of limitations contained in 12 O.S. sec. 95(A)(11) apparently has no application in such a situation. The language of the GTCA compelled this result, as did the principle that, in the case of a conflict, the specific controls the general.
Opinion

Haven v. Famous Footwear, 06-516-JHP

Employee filed suit alleging reverse gender discrimination under Title VII. Defendant issued written discovery, and counsel for Employee filed to withdraw from the case. Court stayed case to allow Employee to associate with new counsel, or enter an appearance pro se; Employee did neither. By Employee's failure, Court struck new scheduling conference set for the benefit of Employee's as-yet-to-be-named counsel.

HELD: Employee's failure to associate with new counsel, or otherwise enter appearance pro se (1) frustrated Defendant from obtaining discovery; (2) interfered with the judicial process by causing Court to strike scheduling conference; and (3) undermined authority of Court by failing to abide with various orders. Court found Employee's failure resulted from wilful or inexcusable neglect and therefore the efficacy of lesser sanctions was outweighed by conclusion that anything less than dismissal would result in serial and escalating sanctions.
Opinion