Deserving of Attention: The Proposed Abrogation of Civil Rule 84 & the Official Forms

Guest post by Professor Brooke D. Coleman. (Ed: Professor Coleman is not a patent scholar, but instead focuses her attention generally on civil procedure. I asked her to write this guest post on the form-complaint issue from that perspective. – Dennis).

In the land of civil procedure, we tend to get very excited when the Federal Rules of Civil Procedure are amended. As proceduralists, however, we are accustomed to expressing our enthusiasm amongst ourselves. Procedure can be a lonely endeavor—especially when it comes to the Rules and the Federal Rulemaking process. However, the current proposed amendments to the Civil Rules are receiving far more attention than usual. The Committee on the Federal Rules of Practice and Procedure of the Judicial Conference has proposed amendments to the discovery rules. These amendments have been controversial, receiving over 2000 comments during the recently-extended public comment period and getting extensive coverage on blogs and in editorials.

Yet, lost in the buzz around the discovery rules is another critical proposed change—the abrogation of Rule 84 and the Forms. (This is where one might start to think that the lone nature of procedure is a good thing, but trust me, it gets interesting.) Rule 84 provides that the forms included in the appendix to the Civil Rules are both illustrative and sufficient under the rules. The forms themselves have been a part of the Civil Rules since the rules were originally adopted in 1938. The Rulemaking Committee has grown concerned about these forms, however, because recent cases have called the validity of the forms into question. For example, some have argued that Form 11—the form for pleading a basic negligence claim—is no longer valid after recent pleading cases, Twombly & Iqbal. In patent cases, courts have similarly struggled with whether Form 18 is valid. (And, in fact, pending federal legislation may eliminate Form 18 anyway.) In the face of this consternation over the forms, the Committee considered a few possible paths. First, it could leave the forms as is. Second, it could change the forms and bring them in line with current practice. Finally, the Committee could just get out of the form-writing business altogether. It chose the final option.

There are a number of problems with the path the Committee chose. The problem I have focused on is how the Committee has gone about attempting to abrogate Rule 84 and the Forms. As I have argued elsewhere, the Rules Enabling Act process—the process by which the Civil Rules are amended—requires the Committee to change the rules and the forms together. This is because the forms and the rules to which they correspond are one in the same. In order to understand the rule, one must look to the form. Because the rule and form are linked in this way, in order for the Committee to change the form, it must consider and publish both the rule and form together. In this case, the Committee did nothing of the sort. It is deleting Rule 84 and the forms without reference to any of the rules to which those forms correspond.

I argue this is problematic for a few reasons. First, the history of Rule 84 shows that the rules and the forms are linked. The original rulemakers believed the forms were critical. They intended the forms to be the “pictures” that would accompany the rules. Rule 84 has only been amended one time since then. In the early years after the rules were adopted, some courts did not treat the forms as sufficient under the rules. Those courts dismissed cases even when parties followed the form complaints. In 1946, Rule 84 was amended to clarify that the forms were not simply passive indications of what the rules meant. They were instead active illustrations of the rules. The revised language adopted in 1946 is the rule we still have today—it states that the forms suffice under the rules. That the rule was amended to make this clarification demonstrates how the rules and forms are inextricably linked.

Second, rulemaking practice with respect to the forms shows that the rules and the forms are connected. Historically, the forms have only been amended in concert with their corresponding rules. For example, when Rule 4 was amended to add a provision for waiver of service of process, the forms were also amended to abrogate the old service form and add new forms. This example of how the forms are amended is repeated throughout the history of the rules. I reviewed every instance in which a form was amended since 1938. There were only two contexts where a form was amended without amending the rule to which it corresponded. First, forms were amended pursuant to federal statutory change (Congress raising the amount in controversy, for example). Second, forms were amended to make purely technical modifications (changing date designations from 19—to 20—at the turn of the century, for example). In other words, the forms have never been modified in a meaningful way without a corresponding change to the rules.

Finally, there is a current example of how the proposed abrogation of the forms is problematic. As already discussed, Twombly and Iqbal have called the pleading forms into question. Yet, the Court cited Form 11 approvingly in Twombly, and has said nothing about it since. The Rulemaking Committee’s deliberations regarding the forms, and specifically Form 11, demonstrate the amount of confusion those cases have created. But, they also demonstrate how much Rule 8 and Form 11 are linked. In those deliberations, the Committee worried that deleting Form 11 would affect the interpretation of Rule 8 and Twombly and Iqbal. This means the Committee was concerned that deleting Form 11 would change Rule 8. And, that is exactly the problem. If deleting a form changes the rule to which it corresponds, that means the rule and the form must be considered together and, further, it means both the rule and the form must be published for comment.

In short, by not considering and publishing the rules and the forms together, the Committee has violated the Rules Enabling Act process. In addition, its failure to follow the proper course has made this change less noticeable. Lawyers, academics, and judges haven’t focused on how deleting the forms will affect the rules because the proposal—as a simple abrogation of Rule 84—does not indicate the significance of this change. Add in the controversy regarding the discovery rules, and it is easy to see why this rule change has gone relatively unnoticed. Yet, the change the Committee is proposing is a substantial one. It certainly hasn’t gotten the attention it deserves, but let’s hope it does before it is too late.

Brooke D. Coleman is an Associate Professor of Law at the Seattle University School of Law. A draft of her article titled Abrogation Magic: The Rules Enabling Act, Civil Rule 84, and the Forms is available on SSRN.

31 thoughts on “Deserving of Attention: The Proposed Abrogation of Civil Rule 84 & the Official Forms

  1. Wow, Dennis actually brought on board a real academic without policies to push. Most unusual.

    I completely agree with this column. The rules and forms go together. The writers of the rules should have to produce an example to show what is sufficient for the rule. Without this the rules may become complete mumbo jumbo. Sounds like the writers of the rules want a pass from having to be responsible for anything. Typical people. Produce forms boys and girls or resign and go home and let adults take over your jobs.

    1. There is always an agenda.

      ALWAYS.

      The way to tell the good guys from the bad is how they go about their agenda.

      Do they treat the discussions of policy to be based in law and fact?
      Do they treat any discussions with intellectual honesty?
      Are there bare bones ethics displayed, similar to the ethics required of practitioners before the Office?

      Or do they play games of obfuscation, WHATEVERism, and dissembling as characterized by a belief that posting on a blog – since it is not in court – need not be intellectually honest.

      1. Hey anon how about adding to your list:

        Are they up front and clear about what their agenda is, what it entails, and a solid grounding for a reason for implementing their agenda?

      2. Also, we’re not academics, so why on earth would you think that we’d utilize an applied method of problem solving like they do in academia such as “intellectual honesty” in posts on the interbuts?

        1. so why on earth would you think that we’d utilize… such as ‘intellectual honesty’

          That you even ask such a question shows how mentally bankrupt you are.

  2. I reading the piece and now I understand why proceduralists “are accustomed to expressing [their] enthusiasm amongst [them]selves” – because the discussion here is boooorrrrriiiiinnnnngggggg, formalistic handwaving. The form for patent pleadings, with its de minimis requirements, is part of what facilitates extortion decked out as an infringement lawsuit. The form should be done away with. If Ms. Coleman can suggest a better replacement, let’s hear the suggestion. The assertion that historically the forms go with the rules, and therefore, by implication, we should maintain the current form (and thereby continue to allow frivolous infringement suits to go forward because the complaint meets the negligible requirements of the form), makes for a weak argument.

    1. HJ,

      I have no problem whatsoever with a due-process and correctly followed process of changing the law.

      I do have a problem with any type of hand-waving, only-policy table pounding that sounds in ‘the ends justify the means.’

      Such is not even an argument – it is a My-Way-By-Fiat invitation.

      Those who do not study – and understand history are bound to repeat it.

      My-Way-By-Fiat always leads to disaster.

      1. I do have a problem with any type of hand-waving, only-policy table pounding that sounds in ‘the ends justify the means.’

        Sure you do. Except when it means more patents that are easier to enforce, all the time.

        Then you couldn’t care less.

        1. You misdirect with an implication of “Except when it means more patents that are easier to enforce, all the time.” implying that I use such lawless and fact-less arguments.

          Sorry Malcolm, pounding the table of ‘only-policy’ is your domain. I use real facts and real law.

          That happens when you are intellectually honest.

          You should try that intellectual honesty thing.

          Of at the very least, change your view of whether such is required on ‘mere blogs.’ Of course, changing that view would entail living that new view and your posts will either improve or vanish (yes, I know that is redundant).

            1. Your pronouncement that intellectual honesty is not required because this is merely a blog and not a court pretty much ends the game for you , Malcolm.

            2. Your pronouncement that intellectual honesty is not required because this is merely a blog and not a court pretty much ends the game for you,

              Just like your pronouncement that you enjoy hiding in the bushes by the elementary school in your bathroom ended the game for you.

              But it is a fun game, as always, isn’t TB? You seem to love it, anyway.

              I’ll let you start the next round, as usual.

            3. And once again a clear difference emerges.

              Answer (honestly) a clear, simple and direct question, Malcolm:

              Should posts on a blog be as intellectually honest as statements in court?

            4. Answer (honestly) a clear, simple and direct question, Malcolm:

              Should posts on a blog be as intellectually honest as statements in court?

              LOL – Look at how fast Malcolm runs away.

    2. The assertion that historically the forms go with the rules, and therefore, by implication, we should maintain the current form (and thereby continue to allow frivolous infringement suits to go forward because the complaint meets the negligible requirements of the form), makes for a weak argument.

      I agree.

      There appears to be an argument (the third “problem”) in the post about some sort of “confusion” that is going to be generated by requiring use of the new patent pleading forms because the underlying rule isn’t also being modified….?

      I can certainly see where “confusion” would arise if the situation were reversed (i.e., if the underlying rule were made much more stringent but the example form remained lax) but as long as the form is required for pleading the only “confusion” would seem to be that willfully created in the mind of a plaintiff not willing to understand what the point of the form is.

  3. In deference to the censor’s sensitivity, I welcome comments from Leopold on this subject, given that Leopold’s previous stated views were contrary to the author’s views.

    1. I’ve never stated any views at all regarding whether the Rulemaking Committee’s activities involving Rule 84 violate the Rules Enabling Act, Mr. Intellectual Honesty.

      If you have an actual point to make, perhaps you could simply make it?

      1. My more direct point was removed Leopold.

        Do you need me to hold your hand and guide you to my invitations to discuss the Professor’s letter on the FRCP?

        Really?

          1. LOL – it is pathetic that you always seem to run away after you make smarmy comments and I nail you to the wall for those comments.

            You know, you can change that by actually engaging why I invite you to engage instead of disappearing.

  4. “The problem with the 75 year old FRCP Form 18 is that it was apparently written for a very simple patent suit on one patent against a company with only one product line”

    I’d be inclined to agree. Nobody in the 40’s would have been aware of the absurd changes to patent lawl allowing for the everyday stuff we see today.

  5. The problem with the 75 year old FRCP Form 18 is that it was apparently written for a very simple patent suit on one patent against a company with only one product line. Yet the Fed. Cir. refuses to apply current Sup. Ct. case principles to require more adequate notice in a patent suit complaint against a company with numerous different products and software tools and/or plural patents with hundreds of different claims. This is not academic, and among other problems it deters effective early settlement discussions which could benefit the parties as well as the courts.

    1. Paul, your comment of “refuses to apply current Sup. Ct. case principles to require more adequate notice” overly simplifies the fact that the Court itself is not following the directions of how to set court procedure, as detailed in the Federal Rulemaking process.

    2. Paul, I say “bull.”

      Notice pleading is notice pleading, and the forms are there to avoid motions to dismiss for failure to state a complaint, activity that consumes a lot of time and effort in any state court that does not have notice pleading.

      Step into the modern world, Paul. Let us learn from our mistakes, at least once.

      But, it seems, that the movers and shakers want one more arrow in the quivers of defendants to run up costs to plaintiffs. Their efforts are transparent.

      1. What kind of complaint “notice” (needed to do infringement and validity studies for, and to provide a requisite “Answer” to) is complaint that really only says that “One or more of the 300 claims of the indicated patents is infringed by one or more of the many features or components of one or more of your 1500 present or former products.” ?

        1. Paul, An answer can be a general denial. Rule 8(b)(3).

          As others have noted, most up-to-date courts soon require preliminary infringement contentions. That includes claim charts and products — far more detailed than any complaint.

          If courts do not require by rule such preliminary infringement contentions, then move to require them. Then you will have all the claims and all the products, and a pretty good idea about the patent owner’s claim construction.

          1. Is it okay not to send out any document preservation letters in the meantime since the company has no idea who relevant custodians are?

            Also, those local rules often only provide for another 30 or 60 days to provide invalidity contentions. This is not sufficient. Invalidity contentions are exceptionally expensive. Had proper notice pleading been provided upfront, in many cases you’ll find out that an indemnities needs to step up. Good luck getting any of this to happen in time for the invalidity contentions.

            Plus, in the meantime a bunch of expensive discovery has happened.

            Rule 11 requires a plaintiff to already have done the investigation for the infringement contentions. Is it so much to ask for that the information be provided upfront? By the way, the good plaintiff firms asserting patents that aren’t complete junk often provide this information anyway because it really does help facilitate settlement. Those who assert junk and just want a $50k extortion payment to avoid litigation costs of course do not.

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