In Texas, the lax “fair-notice” pleading requirement has resulted in the widespread practice of plaintiffs’ attorneys simply cutting and pasting from a previous pleading when filing suit. However, the recent enactment of Texas Rule of Civil Procedure 91a, which allows courts to dismiss unfounded causes of action, may result in a more heightened pleading standard that will force plaintiffs’ counsel to include more factual allegations to avoid dismissal.
Texas and Federal Pleading Requirements
“Texas follows a ‘fair notice’ standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant.”[1] A state court petition is to be liberally construed and is adequately pleaded if one can reasonably infer a cause of action from what is stated in the petition, even if the pleading party fails to allege specifically one of the elements of a claim.[2]
In contrast, the federal pleading standard is more stringent than the Texas pleading standard. Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a cause of action can be dismissed if the plaintiff has failed to plead “enough facts to state a claim to relief that is plausible on its face.”[3]
The plausibility test is satisfied “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.”[4]
A complaint must set forth “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”[5] When a pleading does not contain factual allegations sufficient to allow the court to infer more than the mere possibility of misconduct, the pleading falls short of showing that the pleader is entitled to relief.[6]
Until recently, the Texas Rules of Civil Procedure did not have a similar mechanism to Rule 12(b)(6). However, in 2011, the Texas Legislature instructed the Supreme Court of Texas to “adopt rules to provide for the dismissal of causes of action that have no basis in law or fact on motion and without evidence.”[7] As a result, on March 1, 2013, Rule 91a of the Texas Rules of Civil Procedure became effective. That rule reads, in pertinent part:
[A] party may move to dismiss a cause of action on the grounds that it has no basis in law or fact. A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.[8]
Courts applying Texas law are now struggling with the impact that Rule 91a will have on the “fair-notice” pleading standard in Texas.
Bart Turner & Associates v. Krenke
In Bart Turner & Associates v. Krenke, a Northern District of Texas court specifically discussed Rule 91a’s impact on the state pleading requirements.[9] In Bart Turner, the plaintiffs alleged claims of conspiracy and tortious interference “with employment and agency contracts” between plaintiffs and their employees. The defendants removed to federal court based on diversity jurisdiction. Defendants claimed that the one nondiverse defendant...
