84 Gets 86’d

In two weeks, Federal Rule of Civil Procedure 84 will be no more. Cited a mere 623 times by Federal Courts—and only once by the Supreme Court—Rule 84 has become obsolete, a relic of days gone by when lawyers could slap together complaints and file them just before the statute of limitations had run, without bothering to determine whether a case actually was plausible. What is this rule? And should we mourn or celebrate its demise?

Rule 84 read, in its entirety:

The forms in the Appendix suffice under these rules and illustrate the simplicity and brevity that these rules contemplate.

The forms were a set of helpful documents showing how to format basic parts of pleadings and other filings, such as the caption (Form 1), statement of jurisdiction (Form 7), and how to set out certain claims (Forms 10 through 21), as well as other topics. In Swierkiewicz v. Sorema N. A., the Supreme Court described Rule 84 and the forms in the Appendix as follows:

These requirements are exemplified by the Federal Rules of Civil Procedure Forms, which “are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.” For example, Form 9 sets forth a complaint for negligence in which plaintiff simply states in relevant part: “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.”

534 U.S. 506, 513 (2002). So why did Rule 84 get discarded (along with the forms in the Appendix)?

Well, there is the “official” reason set forth in the Advisory Committee Notes to the 2015 Amendment:

Rule 84 was adopted when the Civil Rules were established in 1938 “to indicate, subject to the provisions of these rules, the simplicity and brevity of statement which the rules contemplate.” The purpose of providing illustrations for the rules, although useful when the rules were adopted, has been fulfilled. Accordingly, recognizing that there are many excellent alternative sources for forms, including the Administrative Office of the United States Courts, Rule 84 and the Appendix of Forms are no longer necessary and have been abrogated.

Then there is the more likely reason: Twombly and Iqbal. These two decisions, Bell Atlantic v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662 (2009), stand for the proposition that a party cannot just plead elements of a claim but must plead sufficient facts to make the claim plausible. To do this, the Supreme Court noted that judges would need to rely on their experience and common sense:

Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.

Iqbal, 556 U.S. at 679.

So what does this have to do with Rule 84? Well, some forms might contain enough information to state a plausible claim; others might not. And while Iqbal instructs judges to “draw on [their] judicial experience and common sense,” Rule 84 stood in the way by declaring that the forms “suffice under these rules.” No judicial experience; no common sense. Just deal with it.

In McZeal v. Sprint Nextel Corp., that is exactly what the Federal Circuit did, citing Form 16 to determine whether a pro se litigant sufficiently pled his claims for patent infringement. 501 F.3d 1354, 1356–57 (Fed. Cir. 2007). Circuit Judge Dyk concurred, noting that this was correct, but a problem:

In my view, a bare allegation of literal infringement using the form is inadequate to provide sufficient notice to an accused infringer under a theory of literal infringement. The form fails to state which claims are asserted and which features of the accused device are alleged to infringe the limitations of those claims. … However, I agree that under Rule 84 of the Federal Rules of Civil Procedure, we would be required to find that a bare allegation of literal infringement in accordance with Form 16 would be sufficient under Rule 8 to state a claim. One can only hope that the rulemaking process will eventually result in eliminating the form, or at least in revising it to require allegations specifying which claims are infringed, and the features of the accused device that correspond to the claim limitations.

501 F.3d at 1360 (emphasis added).

Circuit Judge Dyk, you got your wish: the forms are gone. This is one conflict with which we no longer need to deal, a minor victory for defendants everywhere.

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