In May of this year, the United States Supreme Court came down with the decision in Bell Atlantic v. Twombly, –US –, 127 S. Ct. 1955 (May 21, 2007) which established a “plausibility” standard for federal pleadings.
In Interscope v. Rodriguez, it was held that the RIAA’s boilerplate complaint, which it has been using in all of its cases for the past 4 years, and which robotically alleges only the magic incantation of “downloading, distributing and/or making available for distribution”, is insufficient under the Twombly standard, and the Court dismissed the complaint.
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Accordingly I urge all practitioners who have a “making available” complaint to move to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), or, if the time to do so has passed, to move for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c), on the basis of Twombly and Rodgriguez.
For more complete details, see: Practice Tip: I recommend that defendants’ lawyers consider making motions to dismiss complaint or motions for judgment on pleadings.
See, your CivPro prof was right! Civil procedure rulings and issues really are critical.