The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
Counsel for co-defendants Robert Buchan ("Buchan," a former FBI agent) and the United States have moved to dismiss the state-law tort claims advanced by plaintiff Gary Engel ("Engel") against the latter. While Engel's original Complaint included claims of intentional infliction of emotional distress, malicious prosecution and civil conspiracy, he did not name the United States as a party until he added it as a defendant via the Federal Torts Claims Act*fn1 in his November 2010 Amended Complaint.
In late February 2011 the United States filed its current motion, which is now fully briefed. For the reasons stated hereafter, the motion to dismiss is granted in part and denied in part.*fn2
Under Rule 12(b)(6) a party may seek dismissal of a complaint for "failure to state a claim upon which relief can be granted." Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) did away with the formulation first announced in Conley v. Gibson, 355 U.S. 41, 45--46 (1957) "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."
As Twombly, 550 U.S. at 562--63 put it: Conley's "no set of facts" language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. Twombly, id. at 570 held instead that a complaint must provide "only enough facts to state a claim to relief that is plausible on its face." Or put otherwise, "[f]actual allegations must be enough to raise a right to relief above the speculative level" (id. at 555).
But almost immediately thereafter the Supreme Court issued another opinion that seemed to cabin Twombly somewhat. Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) has explained that further development:
Two weeks later the Court clarified that Twombly did not signal a switch to fact-pleading in the federal courts. See Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007). To the contrary, Erickson reaffirmed that under Rule 8 "[s]pecific facts are not necessary; the statement need only 'give the defendant fair notice of what the...claim is and the grounds upon which it rests.'" 127 S.Ct. at 2200, quoting Twombly, 127 S.Ct. at 1964. Taking Erickson and Twombly together, we understand the Court to be saying only that at some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8.
(1) further explicated and (2) universalized Twombly's teaching. It is thus the Twombly-Iqbal canon that has since controlled the treatment of complaints and does so here. Here is Adkins v. VIM Recycling, Inc., No. 10 C 2237, 2011 WL 1642860, at *7 (7th Cir. May 3), the most recent statement of the Rule 12(b)(6) standard by our Court of Appeals, employing long-familiar language without the overgenerous gloss that had been provided by Conley v. Gibson:
We construe the complaint in the light most favorable to the plaintiffs, accepting as true all well-pled facts alleged, taking judicial notice of matters within the public record, and drawing all reasonable inferences in the plaintiffs' favor.
This opinion adheres to that dictate.
Issue Preclusion and Judicial Estoppel
Choice of law should be at the top of every legal analyst's checklist (even when the answer to the question seems obvious), and here the United States' memorandum begins not with a discussion of the merits of Engel's tort claims, but rather with its assertion that Missouri law (and not that of Illinois) governs them. But with Illinois law having provided the rule of decision for the closely related tort claims brought by Steve Manning in Manning v. United States, No. 02 C 372, 2006 WL 3240112 (N.D. Ill. Sept. 28)--and more importantly, with the United States having been successful in defending ...