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Blurring the Lines between Pleading Doctrines: The Enhanced Rule 8(a)(2) Plausibility Pleading Standard Converges with the Heightened Fraud Pleading Standards under Rule 9(b) and the PSLRA
Abstract
This article focuses on the Supreme Court’s recent enhancement of Rule 8(a)(2)’s pleading standard to approach the heightened fraud pleading standards under Rule 9(b) and the PSLRA. The authors posit that the introduction of a tacit “probability requirement” into the basic pleading standard impedes the heightened fraud pleading standards under Rule 9(b) and the PSLRA from fulfilling the policy rationales for which they were created. By elevating the basic requirements that must be met in any federal civil case for a complaint to be legally sufficient, the Supreme Court has caused an evident convergence of pleading standards that blurs the lines between pleading doctrines. The authors assert that this convergence produces incongruity in the federal civil litigation system by at times treating plaintiffs more leniently when bringing forward fraud claims than when alleging non-fraudulent claims under Rule 8(a)(2)’s new plausibility pleading standard.
Methods for verifying ballast water treatments in foreign vessels are needed to protect the Great Lakes from the discharge of live non-native organisms or pathogens. A prototype automated viability test system using fluorescein diacetate (FDA), a membrane permeable fluorogen, to differentiate live from dead bacteria and algae is described. The automated fluorescence intensity detection device (AFIDD) captures cultured algae or organisms in Detroit River water (simulated ballast water) on 0.2 μm filters, backwashes them from the filter into a cuvette with buffer and FDA for subsequent fluorescence intensity measurements, and washes the filters with sterile water for serial automated reuse. Preliminary manual versions of these procedures were also tested. Tests of various buffers determined N,N-Bis(2-hydroxyethyl)-2-aminoethanesulfonic acid, N,N-Bis(2-hydroxyethyl)taurine (BES) and 3-(N-morpholino)propanesulfonic acid (MOPS) at pH 7.0 to be the best buffers, causing the least spontaneous FDA breakdown without inhibiting enzymatic activity. Fluorescence in the presence of live organisms increased linearly over time, and the rate of increase was dependent on the sample concentration. Following simulated ballast water treatments with heat or chlorine, the fluorescence produced by Detroit River samples decreased to near control (sterile water) levels. Automated measurements of FDA hydrolysis with a reusable filter backwash system should be applicable to near real-time remote-controlled monitoring of live organisms in ballast water.
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