As a follow-up to my post of October 28th discussing a bill introduced in the Senate to wipe out the Bell Atlantic and Iqbal decisions that made clear that something more than bald implausible allegations is required for notice pleading purposes under the federal rules, there is a companion bill pending in the House of Representatives that was referred to the Judiciary Committee for consideration about a week ago.
H.R. 4115, the Open Access to Courts Act of 2009, does essentially what the Senate bill would do. It would enact a new section 2078 in Title 28 that would provide:
A court shall not dismiss a complaint under subdivision (b)(6), (c) or (e) of Rule 12 of the Federal Rules of Civil Procedure unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief. A court shall not dismiss a complaint under one of those subdivisions on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff's claim to be plausible or are insufficient to warrant a reasonable inference that the defendant is liable for the misconduct alleged.
The bill ostensibly would preclude courts from eroding the statutory language through caselaw, as it further provides that its provisions "govern according to their terms except as otherwise expressly provided by an Act of Congress enacted after the date of the enactment of this section or by amendments made after such date to the Federal Rules of Civil Procedure pursuant to the procedures prescribed by the Judicial Conference under this chapter."
Of course, the fact that the provision itself can't be cast aside by the judiciary doesn't mean the courts can't interpret its terms in a a more lenient manner.
Also, the bill seems to overlook Rule 9(b), which on its face requires particularity for fraud claims. If the bill is enacted in its present form, one might try to argue that the statute trumps the rule, such that even in fraud cases particularity is not required. Presumably the drafter of this bill does not intend as much, or the intent to work such a fundamental change in procedure would be much clearer.