that standing might be exempt from the new heightened pleading requirements, because the Court, as decision maker, will resolve any issues before the necessity of a full-blown discovery process and jury trial. In short, the court is already performing a gatekeeper function with regard to standing, so it is not necessary to manipulate pleading doctrine to perform this function.
The effect of the recent Supreme Court cases involving heightened pleading standards on standing jurisprudence remains to be seen. But before these cases, the Court was clearly moving away from the notion that standing causation could be decided solely on the pleadings. For instance, in Lujan, the Court stated: “At the pleading stage, general factual allegations of injury resulting from the defendant’s conduct may suffice, for
191. Id. at 339.
192. It seems probable that the plaintiffs in Dura were proceeding under a different understanding of the legal requirements under federal securities laws. The plaintiffs appeared to believe that buying securities in reliance on defendant’s misrepresentations, at a price that is artificially inflated because of those misrepresentations, constitutes actionable loss, which was the Ninth Circuit’s position. See Broudo v. Dura Pharmaceuticals, Inc., 339 F.3d 933, 938 (9th Cir. 2003). The Supreme Court rejected this understanding, requiring instead that a plaintiff show that, after the defendant’s misrepresentations were exposed, the value of the share price decreased. See Dura, 544 U.S. at 342–46. However, in the complaint in Dura, the plaintiffs had alleged that the defendants had falsely claimed that it expected FDA approval for a new medical device and that, after the FDA announced that it would not approve that device, Dura’s stock price “temporarily fell but almost fully recovered within one week.” See id. at 339. This pleading would seem to flatly contradict the Supreme Court’s conclusion that the plaintiffs had failed to allege that “the defendant’s misrepresentation . . . proximately caused the plaintiff’s economic loss.” Id. at 346. The plaintiffs might not have specifically labeled the stock price drop as evincing their loss, and it is probable that the plaintiffs were proceeding under a different theory, but the Court’s conclusion on this point seems prickly.
193. See A. Benjamin Spencer, Understanding Pleading Doctrine, 108 MICH.L.REV. 1, 6–7 (2009) (discussing the confusion on the appropriate standard to apply to a plaintiff’s pleadings on a motion to dismiss).
on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are necessary to support the claim.’”195
The party invoking federal jurisdiction bears the burden of establishing these elements. Since they are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation. . . . In response to a summary judgment motion, . . . the plaintiff can no longer rest on such “mere allegations,” but must “set forth” by affidavit or other evidence “specific facts,” which for purposes of the summary judgment motion will be taken to be true. And at the final stage, those facts (if controverted) must be “supported adequately by the evidence adduced at trial.”
Unfortunately, the manner in which the Court has described the post- pleadings procedures for resolving standing has also engendered confusion. Consider the Court’s extensive discussion on the topic in Lujan:
196
The Court properly outlines the procedures a trial court should use for fact questions that the jury will ultimately resolve after a full trial. If standing is to serve as a gatekeeper, however, this objective is defeated by delaying the ultimate determination on the causation prong of standing until a full-blown jury trial. While this approach would remedy the problem created by requiring a federal court to decide potentially complicated cause in fact questions solely on the pleadings, it undermines the notion that standing is a threshold determination that must be resolved at the outset of litigation. Moreover, it is not clear just who would be resolving this question. Justice Scalia’s Lujan opinion could be read to indicate that a jury would resolve disputed issues of cause in fact about which reasonable minds could differ.197 In other cases, the Supreme Court has also intimated that a jury would be asked to determine the cause in fact question.198
195. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (alteration in original) (quoting Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 889 (1990)); see also Bennett v. Spear, 520 U.S. 154, 171 (1997) (describing the plaintiffs burden at the motion to dismiss stage as “relatively modest”).
Asking a jury to make determinations that affect the federal court’s jurisdiction is problematic. Professor Mishkin stated long ago that the “power of the court to hear and decide a case could hardly be made to
196. Lujan, 504 U.S. at 561 (citations omitted) (quoting FED.R.CIV.P. 56(e); Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 115 n.31 (1979)).
197. See id.
198. See Gwaltney of Smithfield, Ltd. v. Chesapeake Bay Found., Inc., 484 U.S. 49, 64–
66 (1987) (“If the defendant fails to make such a showing after the plaintiff offers evidence to support the allegation, the case proceeds to trial on the merits, where the plaintiff must prove the allegations in order to prevail. But the Constitution does not require that the plaintiff offer this proof as a threshold matter in order to invoke the District Court’s jurisdiction.”); Gladstone, Realtors, 441 U.S. at 115 n.31 (“Although standing generally is a matter dealt with at the earliest stages of litigation, usually on the pleadings, it sometimes remains to be seen whether the factual allegations of the complaint necessary for standing will be supported adequately by the evidence adduced at trial.”).
depend upon the jury’s verdict.”199