On June 27, 2016, the Colorado Supreme Court decided Warne v. Hall, 353 P.3d 588, and in so doing adopted the “plausibility” standard for state district court pleadings, bringing the pleading standard under C.R.C.P. 8 in line with its federal counterpart. Originally, Hall brought a claim for intentional interference with contract against Warne in Colorado district court. Warne moved to have the claim dismissed for failure to state a claim upon which relief could be granted pursuant to C.R.C.P. 12(b)(5). The district court granted Hall’s motion and dismissed the case. The Court of Appeals reversed, finding that Hall’s complaint was sufficient under the “no set of facts” pleading standard that has long been applied by Colorado courts. The Colorado Supreme Court reversed the Court of Appeals and adopted the “plausibility” standard applied in federal courts.
The “no set of facts” standard states that a complaint should not be dismissed for failure to state a claim unless it appeared beyond a doubt that a plaintiff could prove no set of facts in support of his claim that would entitle him or her to relief. As noted, the Court of Appeals felt bound by this standard in Warne v. Hall because it has been the standard in Colorado for more than 50 years.
The “plausibility” standard requires that in order to survive a motion to dismiss, the factual allegations of a complaint must raise a right to relief above the speculative level, and provide plausible grounds that the complainant is entitled to relief. This standard has been the standard for pleadings in federal court since the U.S. Supreme Court decisions Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009).
In discussing whether to expressly adopt this standard, the Colorado Supreme Court noted that it had always considered it preferable to interpret the Colorado Rules of Civil Procedure harmoniously with its understanding of the similarly-worded federal rules. The Court explained several benefits of this philosophy, including the desire to promote confidence in the judicial process and the objective interpretation of codified law, making the transition between practicing in state and federal court easier for practitioners, and preventing forum-shopping that results from different forums using different rules.
In addition, the Court found that adopting the “plausibility” standard would not be a meaningful departure from the “no set of facts” standard because, even if the no set of facts standard had been met in some cases, courts had been known to still dismiss allegations that were too conclusory, or when the court simply found that a claim was insufficient because it merely asserted a theory without alleging facts which, if proved, would satisfy the elements of the claim.
Perhaps most importantly, the Court noted that adopting higher standard for initial pleading would likely assist in weeding out groundless complaints in the early stages of litigation. By holding complainants to this higher standard, courts would achieve the very desirable goal of expediting litigation and avoiding unnecessary expenses. A problem with the “no set of facts” standard was that a complainant could often resist a motion to dismiss by merely alleging unsupported or conclusory facts that, if assumed to be true, would entitle them to relief. Then, the complainant could utilize the slow, costly discovery process to determine whether a factual basis actually existed for the claim.
So what does the Warne decision mean for practitioners in Colorado and their clients? Clearly, the standard has been changed, but what effect does it actually have on the litigation process?
The distinction, as the Court put it, is that the “no set of facts” standard permitted the complainant to rely on the compulsory process available to civil actions to discover whether grounds for the action exist, and the “plausibility” standard bars such reliance without being able to first allege plausible grounds for relief. In other words, complainants will not be permitted to simply state facts that, if true, would entitle them to relief and then rely on the discovery process to prove up their claims. Rather, they must now not only allege facts that, if true, would entitle them to relief, but also ensure that the facts as pled show that it’s actually plausible that they’re entitled to relief.
In practice, this means practitioners should, as much as possible, avoid making conclusory allegations disguised as facts and ensure to provide a specific factual basis that entitles their client to relief. In Warne, for example, the Supreme Court found that Hall’s claims were insufficiently pled because he relied on conclusory allegations and allegations that if true, would not be considered improper conduct (a necessary element for an interference with contract claim). Since conclusory allegations are not entitled to a presumption of truth, and because Warne’s conduct as alleged did not rise to the level of impropriety, the Court concluded that Hall’s claims, as pled, did not allege plausible grounds for relief—even if they would have satisfied the “no set of facts” standard. Practitioners should avoid pleading conclusory and unsupported allegations anyway, but it is now clear that Colorado courts will be reviewing claims with greater scrutiny and placing a greater burden on the complaining party. Practitioners seeking to dismiss insufficiently-pled claims should, conversely, look forward to facing less resistance in seeking to have those claims thrown out. Finally, practitioners can hopefully look forward to avoiding the time, cost, and frustration of litigating unsupported and groundless claims.
Submitted by: Nathan A. Klotz