In Tim Rigsbee’s February, 1998 article, "Standing Erie on its Head: Should Federal Law Govern Pleading Standards for Section 1983 Civil Rights Claims Brought in the State Courts of Illinois?", numerous typographical errors were printed through no fault of the author.
Mr. Rigsbee’s article, when proof-read by me, was error-free.
Unfortunately, the Brief’s desktop publisher, unknown to me, misplaced the computer disk containing Mr. Rigsbee’s article and, also unknown to me, made a substitute computer disk by scanning a hard copy.
As I am sure the Brief’s readers with scanners are aware, scanning technical legal documents is a very inaccurate process. In regard to Mr. Rigsbee’s article, this process resulted in numerous errors which were published under Mr. Rigsbee’s name without either his knowledge or mine.
Because the Brief had not experienced any other similar problem, no effort was made by me to check the accuracy of the electronic copy of Mr. Rigsbee’s article that the Brief’s desktop publisher prepared prior to the article’s publication. This was an error on my part.
I have apologized personally to Mr. Rigsbee, who has graciously accepted my apology. My apology is printed here as a matter of public record.
The correct, error-free article which was submitted by Mr. Rigsbee is reprinted here in its entirety.
Steven B. Levy, Editor
I. An Erie Background
In the summer of 1934, Harry Thompkins walked along the railroad tracks of the Erie Railroad after a visit to his mother-in-law’s house. As he walked, a train whistled by and an open door on a refrigerator car knocked him onto the tracks, severing his right arm. The legal legacy of this famous accident was the birth of a principle of federalism which forever changed the litigation of state claims in federal court. Erie R.R. v. Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). This principle, known as the Erie doctrine, generally requires the application of state law to state claims brought in federal court.
The Erie doctrine by its terms applies only to the litigation of state claims in federal court. State claims can be brought in federal court where there is diversity of state citizenship of the parties. 28 U.S.C. sec. 1332(a)(1). In addition, state claims may be litigated in federal court where the claims are pendant or ancillary to a cause of action for which there is federal jurisdiction. 28 U.S.C. sec. 1367. Although the Erie doctrine is generally only considered in the litigation of state claims brought in federal court, similar issues arise where Congress grants state courts concurrent jurisdiction over federal claims. Such concurrent jurisdiction exists for civil rights claims brought under section 1983. 42 U.S.C. sec. 1983 (1994).
While not itself conferring any substantive rights (see Baker v. McCollan, 443 U.S. 137, 140, 61 L. Ed. 2d 433, 439, 99 S. Ct. 2689, 2692 (1979)), section 1983 establishes a cause of action for "the deprivation of any rights, privileges, or immunities secured by the Constitution and laws" by any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory." 42 U.S.C. sec. 1983 (1994). Section 1983 claims may be brought in either state or federal courts. Martinez v. California, 444 U.S. 277, 283-84 n.7, 62 L. Ed. 2d 481, 488 n.7, 100 S. Ct. 553, 558 n.7 (1980). The availability of both state and federal fora for the litigation of section 1983 claims creates the opportunity for the "twin evils" identified in Erie, forum shopping and the inequitable administration of laws between state and federal courts.
The United States Supreme Court recently decided in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. ___ , 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993), that federal courts may not impose heightened pleading standards for plaintiffs pleading claims under section 1983. At first blush, the Leatherman case would appear to have little relevance to the litigation of section 1983 cases in state courts. However, a review of the underlying principles of federalism at issue in Erie suggests that state courts should be sensitive to the federal pleading standard articulated in Leatherman, at least for governmental entity liability. In order to appreciate any significance the Leatherman ruling may have to state court section 1983 practice, a brief examination of the differences in our pleading systems and the implicated principles of federalism is necessary.
II. Pleading and its Functions
Historically, pleadings have served various functions, including providing notice, narrowing factual and legal issues, and exposing insubstantial claims. The Federal Rules of Civil Procedure focus on the notice function of pleading. Under the Federal Rules, a plaintiff generally need only plead "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Unless the complaint contains allegations involving fraud or mistake (see Fed. R. Civ. P. 9(b)), a plaintiff need not allege with specificity the facts on which the claim is based. This simplified notice pleading provides for the liberal opportunity for discovery, while relying on other pretrial procedures to define more narrowly factual issues and the merits of the claim. Conley v. Gisbson, 355 U.S. 41, 48, 2 L. Ed. 2d 80, 85, 78 S. Ct. 99, 103 (1957). A majority of the states have patterned their pleading rules after the federal model. See John B. Oakley and Arthur F. Coon, The Federal Rules In State Courts: A Survey of State Court Systems of Civil Procedure, 61 Wash. L. Rev. 1367, 1428-29 (1986).
The Illinois Civil Practice Act (735 ILCS 5/2—101 et seq. (West 1994)) initially appears to embrace notice pleading. Section 2—603(a) requires only "a plain and concise statement of the pleader’s cause of action . . . ." 735 ILCS 5/2—603(a) (West 1994). Furthermore, section 2—612(b) provides that "[n]o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim . . . ." 735 ILCS 2—612(b) (West 1994). However, judicial decisions clearly require factual pleading in order to state a cause of action. See, e.g., Beckman v. Freeman United Coal Mining Co., 123 Ill. 2d 281 (1988); Teter v. Clemens, 112 Ill. 2d 252 (1986). In framing a complaint, a plaintiff must allege sufficient facts to support each element of a particular cause of action. See Ill. Ann. Stat., ch. 110, par. 2—603, Council Commentary, at 16 (Smith-Hurd 1982). Under such a fact pleading system, pleadings are used to weed out frivolous claims at an early stage.
Until recently, several of the federal circuits were applying a "heightened pleading" requirement to section 1983 civil rights claims. See, e.g., Palmer v. San Antonio, 810 F.2d 514 (5th Cir. 1987); Sivard v. Pulaski County, 959 F.2d 662, 667 (7th Cir. 1992). These courts were requiring factual detail similar to what is required for pleadings in Illinois courts. Richard Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 449 (1986). The reason for this heightened pleading standard rested not in the Federal Rules, but in the general disfavor the federal judiciary held such claims:
"In recent years there has been an increasingly large volume of cases brought under the Civil Rights Act. A substantial number of these cases are frivolous or should be litigated in state courts; they all cause defendants—public officials, policemen and citizens alike—considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation and still keep the doors of the federal court open to legitimate claims." Valley v. Maule, 297 F. Supp. 958, 960 (D. Conn. 1968).
Consistent with this goal, lower federal courts employed a heightened pleading standard to weed out frivolous claims in order to protect municipalities from expensive and time consuming discovery that could disrupt municipal functions. See generally Eric Kugler, A 1983 Hurdle: Filtering Meritless Civil Rights Litigation at the Pleading Stage, 15 Rev. Litig. 551 (1996).
The Supreme Court rejected the use of a heightened pleading standard to weed out insubstantial civil rights claims in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. ___ , 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993). The appeal arose from two unrelated searches that Tarrant County police conducted "based on the detection of odors associated with the manufacture of narcotics." Leatherman, 507 U.S. at ___, 122 L. Ed. 2d at 522, 113 S. Ct. at 1161. In one search, plaintiff Charlene Leatherman alleged that the police shot both her dogs. Leatherman, 507 U.S. ___, 122 L. Ed. 2d at 522, 113 S. Ct. at 1161. In another search, plaintiff Gerald Andert, a grandfather who was at home with his family mourning his wife’s recent death from cancer, alleged that the police beat him and forced him and his family to lie face-down on the floor for ninety minutes during the search of his home. Leatherman, 954 F.2d 1054, 1056 (5th Cir. 1992). Neither search revealed the presence of narcotics activity.
The homeowners filed suit in federal court against three municipal defendants, the Tarrant County Narcotics Intelligence and Coordination Unit and the cities of Lake Worth and Grapevine, Texas. The homeowners’ complaint did not name the officers as defendants in their personal capacities. The homeowners’ complaint alleged that the conduct of the police violated their fourth amendment rights and that the local governmental entities were liable for failing to adequately train the police. The complaint described the two incidents, but did not allege any facts to support the allegation that the municipal defendants had failed to adequately train the police.
The district court dismissed the complaint under Rule 12(b)(6) for failing to meet the "heightened pleading standard" required by the Fifth Circuit for municipal liability under section 1983. Leatherman, 755 F. Supp. 726, 729-31 (N.D. Tex. 1991). This heightened pleading standard requires that a complaint allege with factual specificity the nature of the municipal custom or policy that serves as the basis for liability. See also Palmer v. San Antonio, 810 F.2d 514 (5th Cir. 1987); Colburn v. Upper Darby Township, 838 F.2d 663 (3d Cir. 1988). The Fifth Circuit affirmed the dismissal of plaintiffs’ complaint for failing to meet this heightened standard. Leatherman, 954 F.2d at 1055.
The Supreme Court rejected the heightened pleading standard applied by the Fifth Circuit as violating the notice pleading set up by the federal rules. The Court held that Rule 8 "meant what it said" and pleading under the federal rules requires only "a short plain statement of the claim showing that the pleader is entitled to relief." Leatherman, 507 U.S. ___ , 122 L. Ed. 2d at 524, 113 S. Ct. at 1161, citing Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The Court also noted that Rule 9(b) expressly imposes a heightened pleading requirement in only two circumstances, averments of fraud or mistake. This enumeration excludes application of this standard for other circumstances not listed. Leatherman, 507 U.S. ___ , 122 L. Ed. 2d at 524, 113 S. Ct. at 1161 ("Expressio unius est exclusio alterius.") Although this holding is based on the rules governing federal procedure, principles of federalism support the extension of this pleading standard in our state court section 1983 practice.
III. Standing Erie on its Head
The question of whether the federal pleading standard for section 1983 claims announced in Leatherman should apply in state courts presents the converse application of the doctrine of Erie R.R. v Tompkins, 304 U.S. 64, 82 L. Ed. 1188, 58 S. Ct. 817 (1938). Erie and its progeny essentially require that federal courts apply the substantive law of the state in which they sit when state law provides the rule of decision. The doctrine is based on constitutional principles of federalism and the Rules of Decision Act (28 U.S.C. sec. 1652), and seeks to prevent the inequitable administration of the law between the state and federal courts. Whether a particular matter should be considered substantive right or merely a procedural matter shifts as the legal context changes. Hanna v. Plumer, 380 U.S. 460, 471, 14 L. Ed. 2d 8, 16, 85 S. Ct. 1136 (1965). The Supreme Court has applied various approaches for determining when a particular rule is a matter of substantive state law that must be applied in federal court. See, e.g., Guaranty Trust Co. v. York, 326 U.S. 99, 89 L. Ed. 2079, 65 S. Ct. 1464 (1945); Byrd v. Blue Ridge Rural Elec. Coop., Inc., 356 U.S. 525, 2 L. Ed. 2d 953, 78 S. Ct. 893 (1958).
Where there is concurrent jurisdiction between state and federal courts of a case involving a right having its source in federal law, a problem similar to Erie arises where that right is litigated in state court. A state court applies its own procedural law to the litigation of the federal right. The United States Supreme Court has relied on the same principles of federalism supporting Erie, as well as the command of the supremacy clause, in protecting these federal rights from encroachment by state procedural law.
For example, in Brown v. W. Ry. of Alabama, 338 U.S. 294, 94 L. Ed. 100, 70 S. Ct. 105 (1949), the Supreme Court considered the application of Georgia pleading rules to complaints brought under the Federal Employers Liability Act (hereinafter FELA). A Georgia state court had dismissed a complaint brought under FELA because of a local rule that required allegations in the complaint be construed "most strongly against the pleader." Brown, 338 U.S. at 295, 94 L. Ed at 102, 70 S. Ct. at 106. The Supreme Court looked to the sufficiency of the complaint under federal law. The Court stated that "strict local rules of pleading cannot be used to impose unnecessary burdens upon rights of recovery authorized by federal law." Brown, 338 U.S. at 298, 94 L. Ed at 104, 70 S. Ct. at 108. In finding the complaint sufficient under federal law, the Court stated that it would not "fail to protect federally created rights from dismissal because of over-exacting local requirements for meticulous pleadings." Brown, 338 U.S. at 299, 94 L. Ed at 104, 70 S. Ct. at 108.
The Supreme Court directly considered the preemption of state procedures in state court section 1983 actions in Felder v. Casey, 487 U.S. 131, 101 L. Ed. 2d 123, 108 S. Ct. 2302 (1988). Felder involved a Wisconsin notice of claim provision. The provision required that before any suit could be filed against a local governmental entity, the plaintiff must first notify the entity of the facts and amount of the claim. In addition, the provision required that a plaintiff must thereafter refrain from filing suit for 120 days. Failure to comply with this procedure constituted grounds for dismissal.
The Felder Court framed the inquiry as whether the state notice procedure created an obstacle to the accomplishment of the full purposes of the Civil Rights Act to protect federal rights from violations by state actors. Felder, 487 U.S. at 138, 101 L. Ed. 2d at 138, 108 S. Ct. at 2308. The Court referenced both the principles of federalism articulated in Erie and the supremacy clause as the basis for its authority to review state procedures that govern federal actions brought in state court:
"Just as federal courts are constitutionally obligated to apply state law to state claims, [citing Erie] so too the Supremacy Clause imposes on state courts a constitutional duty `to proceed in such manner that all the substantial rights of the parties under controlling federal law [are] protected.’" Felder, 487 U.S. at 151, 101 L. Ed. 2d at 146, 108 S. Ct. at 2314, quoting Garret v. Moore-McCormack (1942), 317 U.S. 239, 245, 87 L. Ed. 239, 244, 63 S. Ct. 246, 251.
The Felder Court struck down the notice of claim provision for section 1983 actions brought in Wisconsin state courts. The Court first noted that "the notice requirement burdens the exercise of the federal right by forcing civil rights victims who seek redress in state courts to comply with a requirement that is entirely absent from civil rights litigation in federal court." Felder, 487 U.S. at 141, 101 L. Ed. 2d at 139, 108 S. Ct. at 2308. In finding the notice provision unconstitutional, the Court used the same outcome determinative language that it has applied in the context of Erie. The Court stated that the notice of claim provision could not survive constitutional scrutiny because "enforcement of such statutes in section 1983 litigation will frequently and predictably produce different outcomes in federal civil rights litigation based solely on whether that litigation takes place in state or federal court." Felder, 487 U.S. at 141, 101 L. Ed. 2d at 139, 108 S. Ct. at 2308.
In Felder, the Supreme Court did not suggest that every state procedure affecting the outcome of a case violates the supremacy clause. "[A]n otherwise neutral, uniformly applicable state rule" such as those governing service of process or substitution of parties is generally acceptable. Felder, 487 U.S. at 141, 101 L. Ed. 2d at 140, 108 S. Ct. at 2314. However, the Court rejected the argument advanced by Wisconsin that the notice requirement was a "neutral and uniformly applicable state rule" simply because it failed to distinguish between state and federal actions brought against governmental entities in Wisconsin state courts. Instead, the Court looked to whether the provision served to benefit governmental defendants by placing litigation obstacles in front of plaintiffs seeking vindication of federal rights. Felder, 487 U.S. at 141, 101 L. Ed. 2d at 140, 108 S. Ct. at 2314.
The Supreme Court has also refused the application of state law in a slightly different context where the law was not appropriate given the practical realities of civil rights litigation. In Burnett v Grattan, 468 U.S. 42, 82 L. Ed 2d 36, 104 S. Ct. 2924 (1984), the Supreme Court was faced with the issue of whether to incorporate a six-month administrative statute of limitations period that Maryland applied to employment claims. Courts must borrow the most appropriate limitations period from the state in which they sit because the Civil Rights Act generally contain no statute of limitations. The Burnett Court rejected the administrative limitations period because it failed to take into account the practicalities of litigating federal civil rights claims and the goals of the Civil Rights Act. Burnett, 468 U.S. at 50, 82 L. Ed 2d at 45, 104 S. Ct. at 2930. The Court reasoned that a six-month limitations period did not give sufficient time for a plaintiff to recognize the constitutional nature of the violation or to frame a complaint that would satisfy federal pleading standard and survive a motion to dismiss. The Supreme Court also noted that short limitations period "ignores the dominant characteristic of civil rights actions: they belong in court." Burnett, 468 U.S. at 50, 82 L. Ed 2d at 45, 104 S. Ct. at 2930.
IV. How Do You Plead?
Applying the converse Erie analysis underlying Brown and Felder, a strong argument can be made that the federal notice pleading standard reaffirmed in Leatherman should preempt the fact pleading requirements for section 1983 claims brought in Illinois state courts. Brown supports the view that state pleading requirements resulting in the dismissal of viable federal actions are unconstitutional even though the pleading standards are applied evenly to all state actions. In addition, like the notice requirement at issue in Felder, the duty to plead factual detail in a complaint is a requirement that is absent in federal court after Leatherman.
Thus, we are left with the central Erie inquiry: Do the fact pleading requirements employed in Illinois encourage forum shopping and the inequitable administration of the laws by producing different outcomes in section 1983 litigation depending on whether the action is brought in state or federal court? In conducting this inquiry, consideration must be given to the practicalities of litigating federal civil rights claims and the goals of the Civil Rights Act. As there are substantial differences between the prerequisites for personal liability and municipal liability under section 1983, each is treated separately. See generally Kentucky v. Graham, 473 U.S. 159, 165-166, 87 L. Ed. 2d 114, 121-122, 105 S. Ct. 3099, 3105 (1985) (distinguishing between personal and official capacity suits).
A. State Actor Liability
In order to state a section 1983 claim against a governmental actor in his personal capacity, a civil rights plaintiff must prove two elements. First, the plaintiffs must prove that the actor has deprived them of a federal right. Second, plaintiffs must prove that the actor acted under color of state law. Fellhauuer v. Geneva, 142 Ill. 2d 495, 514 (1991), citing Gomez v. Toledo, 446 U.S. 635, 640, 64 L.Ed. 2d 572, 577, 100 S.Ct. 1920, 1923 (1980).
In the case of a claim against a state actor in his personal capacity, there is no substantial burden on section 1983 litigation in requiring the plaintiff to plead sufficient facts to support a cause of action. As the person who has directly suffered the deprivation of a federal right, a plaintiff will regularly possess sufficient knowledge of the facts surrounding the official’s actions to plead a cause of action under Illinois rules. Therefore, requiring a plaintiff to plead the facts underlying his section 1983 claim against a state actor in his personal capacity should not stand as a barrier to the purposes of section 1983 or regularly alter the outcomes of cases brought in state court.
B. Governmental Liability
The doctrine of respondeat superior does not apply in section 1983 litigation and governmental liability cannot be premised merely on the employment relationship between the actor and the municipality. Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 691, 56 L. Ed. 2d 611, 636, 98 S. Ct. 2018, 2036 (1978). The Supreme Court set forth the elements for governmental liability under section 1983 in Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Under Monell, section 1983 plaintiffs must establish: (1) that they have suffered the deprivation of a constitutionally protected interest; and (2) that the deprivation was caused by an official policy, custom, or usage of the entity. Monell, 436 U.S. at 694, 56 L. Ed. 2d at 638, 98 S. Ct. at 2037.
A plaintiff may establish the necessary official policy by showing that the deprivation resulted from the execution of a policy put in place by high level officials such as "lawmakers or those whose edicts or acts may fairly be said to represent official policy." Monell, 436 U.S. at 694, 56 L. Ed. 2d at 638, 98 S. Ct. at 2037-38. Where the conduct of high level officials responsible for establishing policy causes the deprivation, municipal policy is conclusively established without a showing of repeated instances of similar conduct. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 89 L. Ed. 2d 452, 463, 106 S. Ct. 1292, 1298 (1986).
Where the conduct of high level officials is not implicated, a plaintiff may establish municipal fault through "custom" or "inadequate training." In order to establish a particular custom, a plaintiff must show that a practice is so settled and widespread that policy-making officials can be said to have either actual or constructive notice of the practice. Bordanaro v. McLeod, 871 F.2d 1151, 1156-1158 (1st Cir. 1989). Therefore, it is necessary to show that the conduct has been repeated with the apparent acquiescence of policy makers. Where a plaintiff attempts to establish that the deprivation was caused by a policy of inadequate training, the deficiency in training must amount to "deliberate indifference" to the rights of the persons that come into contact with the police. City of Canton, Ohio v. Harris, 489 U.S. 378, 389, 103 L. E.d. 2d 412, 427, 109 S. Ct. 1197, 1205 (1989).
Given the practical realities of litigating civil rights claims against governmental entities, fact pleading standards can affect the outcomes of litigation and stand in the way of the goals of the Civil Rights Act. Quite simply, pleading is a poor stage for distinguishing between meritless and meritorious suits against a local governmental entity in the civil rights context. Fact pleading rules present a great difficulty for a civil rights plaintiff attempting to state a cause of action against a local governmental entity because a plaintiff will regularly have no knowledge or hard evidence concerning the customs or policies of the entity which are necessary to state a claim. As one judge on the federal bench stated:
"We are at a loss as to how any plaintiff, including a civil rights plaintiff, is supposed to allege with specificity prior to discovery acts to which he or she personally was not exposed, but which provide evidence necessary to sustain the plaintiff’s claim, i.e., that there was an official policy or a de facto custom which violated the Constitution." Means v. City of Chicago, 535 F. Supp. 455, 460 (N.D. Ill. 1982).
Applying our pleading rules, a meritorious civil rights plaintiff would not be able to satisfy the factual particularity necessary to withstand a motion to dismiss and begin discovery. A civil rights plaintiff would not likely possess information concerning the policies of high ranking officials that may have caused the deprivation of a federal right. Moreover, a civil rights plaintiff would not have knowledge of the nature of the training received by the state actor or whether any repeated similar instances of conduct have occurred that could support a finding of custom. Thus, fact pleading rules designed to weed out claims at an early stage in litigation can frequently and predictably affect the outcome of federal civil rights litigation that may take place in our state courts.
The Supreme Court’s decision in Leatherman also means that state and federal courts in Illinois will apply drastically different standards to pleadings involving federal civil rights claims. Under the federal standard of notice pleading now applied to section 1983 claims after Leatherman, a plaintiff need only plead a "short and plain statement of the claim." Furthermore, a claim asserting municipal liability under section 1983 in federal court is sufficient to withstand a motion to dismiss if it contains only a "bare allegation" that the employee’s conduct conformed to official policy, custom or practice. Leatherman, 507 U.S. ___ , 122 L. Ed. 2d at 522, 113 S. Ct. at 1163. Such differences in pleading standards applicable to section 1983 claims against governmental entities lead unmistakably to forum shopping and the inequitable administration of the laws. In addition, the remedial purpose of section 1983 is frustrated where an unconstitutional policy or custom is allowed to persist because no civil rights plaintiffs can discover it.
On a practical level, plaintiffs litigating civil rights claims in Illinois courts should seek to avoid this barrier to discovery by naming a potential municipal defendant as a respondent in discovery pursuant to 735 ILCS 5/2-402 (West Supp. 1995). A respondent in discovery must respond to a plaintiff’s discovery request as if named as a defendant. The original purpose of section 2-402 was to provide a means of filing medical malpractice suits without naming every potential defendant. See Bogseth v. Emanuel, 166 Ill. 2d 507, 514 (1995). This practice developed because it was believed that being named a "defendant" in a medical malpractice action contributed to increased costs of medical malpractice insurance. Bogseth, 166 Ill. 2d at 514. Originally applicable only to medical malpractice actions, the provision was expanded in 1989 to apply in "any civil action." See P.A. 86-483, sec. 1 eff. Sept. 1, 1989. Thus, a civil rights plaintiff can seek discovery from a municipality pursuant to section 2-402 as a means of avoiding fact pleading requirements.
Naming a municipal defendant as a respondent in discovery does not completely alleviate the burdens on federal civil rights claims imposed by fact pleading. Section 2-402 requires that a plaintiff name at least one real defendant in order to pursue other potential defendants as respondents in discovery. See Bogseth, 166 Ill. 2d at 514-15. Thus, a civil rights plaintiff must have knowledge of at least one state actor who deprived them of a federal right that can be named in the suit. In addition, section 2-204 imposes a six-month limit for such discovery after which time a plaintiff must elect whether to name the respondent as a defendant. As noted above, the Supreme Court in Burnett struck down Maryland’s six-month limitations period as inconsistent with the goals of the Civil Rights Act. The Court reasoned that the short limitations period did not give sufficient time to recognize the constitutional nature of the violation or to frame a complaint that would survive a motion to dismiss.
Even prior to the United States Supreme Court’s relaxation of federal civil rights pleading standard in Leatherman and the application of a converse Erie analysis to section 1983 claims in Felder, California recognized the need to apply federal law in the context of determining the sufficiency of a complaint in state court section 1983 actions. Similar to the fact pleading requirements that exist in Illinois, the California Code of Civil Procedure requires that a complaint contain a "statement of facts constituting that cause of action, in ordinary and concise language." Cal. Code sec. 425.10(a). In Bach v. County of Butte et al., 147 Cal. App. 3d 554, 195 Cal. Rptr. 268 (1983), a California appeals court rejected the use of its fact pleading standard for determining the sufficiency of section 1983 claims brought in California state court. Citing the Brown/FELA case as its authority, the court found that the federal notice pleading standard should determine whether a section 1983 count in a complaint states a cause of action. Bach, 147 Cal. App. 3d at 563, 195 Cal. Rptr. at 273. The court reasoned that "it would be anomalous to require a lesser standard of review under section 1983 than under FELA, since a deprivation of constitutional rights is often at issue under section 1983." Bach, 147 Cal. App. 3d at 273 n.5, 195 Cal. Rptr. at 273 n.5.
Applying federal pleading standards for section 1983 claims brought in state courts would have the benefit of making state courts a more likely venue for the litigation of local disputes involving federal rights. In addition, applying the federal pleading standard to federal civil rights claims in state court represents only a minor intrusion into the administration of justice in state courts. State courts are already responsible for applying federal law to federal claims. See e.g., Bowman v. Illinois Central R. Co., 11 Ill. 2d 186, 226 (1957) (finding that federal law controls nature of appellate review concerning jury’s award of damages in FELA case). Moreover, the federal pleading standard is well known and federal case law is available as authority for determining whether a complaint is sufficient to withstand a motion to dismiss.
The application of the liberal federal pleading rules will increase the risk of costly discovery for municipalities in our state courts. However, a municipality already suffers the same risk where plaintiffs choose to have their section 1983 claim litigated in federal court. As in the federal system, "litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later." Leatherman, 507 U.S. at ___, 122 L. Ed 2d at 524, 113 S. Ct. at 1162. In addition, attorneys will still be prevented from manufacturing claims by the requirements of Rule 137. 155 Ill. 2d R. 137.
For these reasons, I suggest that where a plaintiff pleads a section 1983 claim against a governmental entity in Illinois state courts, federal law should control whether the complaint is sufficient to survive a motion to dismiss. In order to state a cause of action under the federal rules, the short and plain statement is sufficient where it gives the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests. Conley v. Gisbson, 355 U.S. 41, 47, 2 L. Ed. 2d 80, 85, 78 S. Ct. 99, 103 (1957). Applying this federal standard, forum shopping will be discouraged and the Illinois courts will be given the opportunity to fulfil their concurrent responsibility under section 1983 to protect constitutional rights.
Timothy S. Rigsbee is the Senior Law Clerk for Supreme Court Justice John L. Nickels. He received his Undergraduate Degree in 1990 from the University of Colorado and his Law Degree in 1993 from Northern Illinois University.