Kentucky state courts have not yet formally adopted in a published opinion the federal pleading standards of Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), to claims for relief. Those pleading standards are more rigorous than the traditional “notice pleading” standard that had long been followed in the federal courts prior to Twombly and Iqbal. To date, the only Kentucky case specifically citing Twombly or Iqbal on this point of law was an unpublished decision of the Kentucky Court of Appeals that cited Twombly with approval and relied on it in part in affirming dismissal of a pro se complaint for failure to state a claim. Espinosa v. Jefferson/Louisville Metro Govt., 2009 WL 277488 (Ky. App. 2009). (See CR 76.28(4)(c) concerning citation of unpublished opinions.) Espinosa was decided before the U.S. Supreme Court issued the Iqbal opinion, and a case involving a deficient pro se complaint was probably not the optimal lead-in for full consideration of Twombly.
At least one federal district court sitting in Kentucky, applying the Kentucky pleading standard instead of the federal standard in a diversity of citizenship case due to the defendant’s allegation of fraudulent joinder of a nondiverse defendant by the plaintiff in an attempt to defeat diversity jurisdiction, recently noted that “Kentucky’s pleading standard is more lenient than [that provided for under] the federal rules,” and thus found the defendants’ reliance on Twombly and Iqbal to be “misplaced.” Combs v. ICG Hazard, LLC, 934 F.Supp.2d 915, 923 (E.D. Ky. 2013). On the other hand, a subsequent unpublished decision by the Sixth Circuit Court of Appeals, following the usual practice of applying federal pleading standards in a diversity case, relied on Twombly in upholding dismissal of a lawyer’s state law claims arising out of the defendant law firm’s alleged retaliation for his refusal to violate Kentucky’s Rules of Professional Conduct, holding that the pleading was not sufficiently “particularized” and noting that the Court was “not convinced that the Kentucky Supreme Court would hold otherwise….” Gadlage v. Winters & Yonker, Attorneys at Law, PSC., — Fed.Appx. —-, 2013 WL 5749547 (6th Cir. 2013).
In addition to Espinosa’s citation of Twombly, the Kentucky Court of Appeals held in a 2011 case that, in order to recover attorney’s fees based on a statute, a party must make a claim for statutory fees in the body of its pleading. O’Rourke v. Lexington Real Estate Company LLC, 365 S.W.3d 584, 587 (Ky. App. 2011). In reversing the trial court’s award of attorney’s fees to a landlord for recovery under a lease agreement, the Court in O’Rourke held that merely including a request for attorney’s fees as an item of recovery in the ad damnum clause of the complaint, which has long been a routine pleading practice for many Kentucky litigators, was not sufficient to state a claim for attorney’s fees under statutes governing leases of real property. Though one might assert O’Rourke signals adoption of a higher pleading standard, that decision did not rely on the federal standard, and the Court specifically stated it did not believe adequate notice of the claim for statutory attorney’s fees was provided by a general request for fees made in the prayer for relief. Likewise, as recently as November 2013, the Kentucky Supreme Court, while not specifically addressing the more rigorous federal pleading standards, reiterated in upholding reversal by the Court of Appeals of a trial court’s dismissal for failure to state a claim that Kentucky is a “notice pleading” state. Pete v. Anderson, 413 S.W.3d 291 (Ky. 2013). In that case, however, it appears that the pleading would have satisfied the Twombly/Iqbal standard.
In light of the foregoing, most Kentucky practitioners will probably continue to assume (perhaps safely) that the traditional notice-pleading, “no-set-of-facts” standard pertains to actions filed in our state courts, at least until a Kentucky appellate court expressly adopts the heightened federal standard. However, no Kentucky practitioner would want to be the first lawyer to lose a state-court case on this point, and Espinosa and O’Rourke may signal a move to a more rigorous standard in state courts. In short, there is certainly nothing wrong with seeking to meet the federal standard in a claim for relief in state court in order to assure it is satisfactory under the Kentucky Rules of Civil Procedure, and it may well be advisable to do so until a Kentucky appellate court speaks directly and definitively on the issue.
Note: The foregoing post includes commentary reprinted from the forthcoming 2014 supplement to 7 Phillips & Kramer, Rules of Civil Procedure Annotated, 6th ed. (Kentucky Practice Series), by David V. Kramer, with permission of the author and publisher. Copyright (c) 2014 Thomson Reuters. For more information about this publication please visit http://store.westlaw.com/rules-of-civil-litigation-annotated-6th-vols-6-7-kentucky/130503/11774808/productdetail.
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