stating that a Rule 7(a) reply is only required when the claims in the complaint are not supported “with sufficient precision and factual specificity to raise a genuine issue as to the illegality of [a] defendant's conduct at the time of the alleged acts.”
How later courts described this case
- stating that a Rule 7(a) reply is only required when the claims in the complaint are not supported “with sufficient precision and factual specificity to raise a genuine issue as to the illegality of [a] defendant's conduct at the time of the alleged acts.”
- recognizing that the establishment of qualified immunity “depend[s] on facts peculiarly within the knowledge and control of the defendant” (quoting Gomez v. Toledo, 446 U.S. 635, 641 (1980)
- holding that a heightened pleading standard only applies to section 1983 cases after the plaintiff is ordered to submit a Rule 7(a) reply following a defendant’s assertion of the qualified immunity response
- finding that the district court erred in denying qualified immunity without first requiring the filing of a Rule 7(a) reply when the complaint’s allegations were not sufficiently specific
Written by the judges who cited it.
The opinion
EMILIO M. GARZA, Circuit Judge,
specially concurring:
Although I concur in the judgment of the court, I do so because I agree with Judge Jones that Elliott’s heightened pleading standard survives Leatherman. I write separately to express two concerns regarding the majority’s reliance on the Rule 7(a) reply.
Until now, we have required that § 1983 plaintiffs meet the qualified immunity de *1437 fense with allegations in their complaints, allegations that were required, at a minimum, to be more than mere conclusions. Now, however, “we will no longer insist that a plaintiff fully anticipate the defense in his complaint at the risk of dismissal under Rule 12.” Instead, a plaintiff will be able to wait to see whether the defendant will raise the qualified immunity defense in his answer, and the plaintiff will be required to meet the defense only if the district court orders him to file a reply. If the district court does order a reply, 1 the plaintiff can meet the qualified immunity defense in the reply, a pleading to which even the majority’s “more than conclusions” pleading requirement does not apply. 2
Because the standards that once governed a plaintiffs allegations regarding qualified immunity will not apply to a plaintiffs reply, the majority must decide what rules, if any, govern the content of such a reply. The court does not answer this question with an independent legal requirement against which district courts can measure a plaintiffs allegations. Instead, the court explains that the district court may:
require a plaintiff to reply to [the qualified immunity] defense in detail. [3] By definition, the reply must be tailored to the assertion of qualified immunity and fairly engage its allegations. A defendant has an incentive to plead his defense with some particularity because it has the practical effect of requiring particularity in the reply-
Slip op. at 2932 (emphasis added). Any minimum requirement on the content of the reply will depend on (1) the district court’s discretionary decision to require detailed aver-ments in the reply; and (2) the practical effect of the particularity of the defendant’s answer. The majority has thus abandoned an independent pleading requirement for a system that depends on the district court’s discretion and the litigants’ incentives.
The majority’s limitation on the district court’s discretion to order a reply is also troubling. To the extent the majority limits a district court’s discretion to order a reply, its opinion is inconsistent with the plain language of Rule 7(a), which simply states that “the court may order a reply.” On one hand, the opinion states that the “court may, in its discretion, insist that a plaintiff file a reply-” (emphasis added). On the other hand, it states: “Vindicating the immunity doctrine will ordinarily require such a reply, and a district court’s discretion to do so is narrow indeed when greater detail might assist.” Such a limitation on the district court’s discretion is not contained in Rule 7(a), and in my view the majority has not explained why the application of Rule 7(a) to qualified immunity cases requires reading such a limitation into the rule. 4
*1438 The majority’s Rule 7 approach, however novel and interesting, raises more questions than it answers. Regardless of these concerns, however, I would hold that Elliott’s heightened pleading standard survives Leatkerman for the reasons stated by Judge Jones in her concurring opinion.
. The consequences of the district court's not ordering a reply are unclear. Presumably, a court could not then dismiss the complaint for failure to meet the qualified immunity defense because we no longer require that the plaintiff fully anticipate the qualified immunity defense in his complaint.
. The majority does not hold, nor could it, that the "more than conclusions” pleading standard will apply to a plaintiff’s Rule 7(a) reply. It grounds the "more than conclusions” standard in Rule 8(a)(2)'s requirement that pleadings contain a "short and plain statement” of the asserted claim, but as the majority accurately notes, Rule 8(a)(2)’s "short and plain statement” requirement would not apply to a Rule 7(a) reply. The only rule that governs the content of a Rule 7 reply is Rule 8(e)(1), which requires that "[ejach averment of a pleading shall be simple, concise, and direct.” However, the majority does not “read Rule 8(e)(1) as a relevant limitation upon the content of a Rule 7 reply.”
3. The Federal Rules of Civil Procedure do not empower the district court to require that a reply be "detailed.” Whether "detailed” has independent legal significance or whether the detail required will depend on how district courts formulate their orders requiring a reply is unclear.
. The district court's discretion, or lack thereof, also raises the question of how this court, down the road, will review the district court's decision not to order a reply. Rule 7(a) and the court’s "may, in its discretion" language suggest an abuse of discretion standard. In contrast, the "if greater detail might assist” limitation seems to involve a question of law, reviewable de novo. How these two aspects combine is unclear. It is also unclear what standard a district court will use to determine when “greater detail might assist."