Invited to adopt the U.S. Supreme Court’s new plausibility pleading standard in an employment law dispute, the Tennessee Supreme Court has declined to do so, citing the state’s long-standing adherence to the more liberal “notice” pleading standard previously applied in the federal courts. Webb v. Nashville Area Habitat for Humanity, Inc., No. M2009-01552-SC-R11-CV (Tenn., decided July 21, 2011). The court explores the state rule’s application and then describes how the U.S. Supreme Court’s Twombly and Iqbal decisions significantly changed the pleading standard that the state follows. The court also cites a number of scholarly articles about the topic, including an article co-authored by Shook, Hardy & Bacon Public Policy Attorneys Victor Schwartz and Christopher Appel.

According to the court, the pleading standard change has resulted in “a loss of clarity, stability and predictability in federal pleadings practice.” Among other matters, the court said that adopting the plausibility pleading standard would (i) “require the substantial alteration or abandonment of pleading principles that have been stable and predictable for forty years in Tennessee”; (ii) incorporate “an evaluation and determination of likelihood of success on the merits—a judicial weighing of the facts pleaded to see if they ‘plausibly present a claim for relief—at the earliest stage of the proceedings before a sworn denial is even required”; (iii) require courts to distinguish between facts and conclusions, a distinction that is “fine, blurry, and hard to detect”; (iv) result “in the disproportionate dismissal of certain types of potentially meritorious claims that require discovery to be proven”; and (v) implicate policy issues more prevalent in federal than state courts.

Applying the state’s motion-to-dismiss jurisprudence, the court determined that the amended complaint for retaliatory discharge stated a cause of action by including “a short and plain statement of the claim showing that the pleader is entitled to relief” and “a demand for judgment for the relief the pleader seeks.”