PLAUSIBILITY AS A STANDARD? DON'T BELIEVE IT.

It's just another way of saying there's nothing left to lose--with apologies to "Me and Bobby McGee" and Janis Joplin, God rest her soul.

Under the so-called standard of whether a complaint in federal court "plausibly" alleges facts in support of claims, a federal trial judge is supposed to dismiss complaints whenever she or he thinks that they are not plausible. 

This way the judges do not have to be concerned with summary judgment standards like "genuine issues of material fact."  They can even bypass the rule regulating judgment on the pleadings.

What this means in practice is that federal trial judges are authorized to enter judgment against the people who filed the lawsuit -- to dismiss their complaints with prejudice, as is generally the case -- by looking beyond the face of the complaints and their exhibits to consider only whether the complaints allege facts and claims that are plausible in the eyes of the judge.

George P. Klika alleged in a federal lawsuit filed in Seattle that an insurance carrier overcharged him for premiums, specifically for premiums on a policy that was force-placed by the mortgage servicer.  A federal judge did not grant the insurance company's motion to dismiss because of what Klika alleged but because the federal court also considered the "declaration" or affidavit submitted by the defendants in the case.

In pertinent part, the federal judge ruled that "the facts do not support plaintiff's assertion," whereas the only real issue was whether the facts alleged by the plaintiff in that case rose to a claim upon which relief could be granted.  There would be plenty of opportunities later to consider the defendant's so-called 'evidence' in defense, and without depriving the plaintiffs of the right to cross-examination.  Klika v. Capital One Bank, N.A., No. C15-0107RSL, 2016 WL 4544373, at *1 (W.D. Wash. June 30, 2016).

In every case that can be imagined, there would be plenty of time later to adjudicate claims based on the evidence, or lack of evidence, without depriving plaintiffs of the opportunity to cross-examine the witnesses signing off on the declarations or affidavits.

Plausibility as a standard? It's just not believable.

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