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 For example, some have argued that Form 11—the form for pleading a basic negligence claim—is no longer valid after recent pleading cases, Twombly & Iqbal.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.