In Stowe Woodward LLC v. Sensor Products, Inc., Judge Conrad of the W.D. Va. applied a "heightened pleading" standard to the defendant's assertion that the plaintiff's claim under patent law was barred by the defense of "inequitable conduct."
This strikes me as unsound, in light of the Supreme Court's decisions Leatherman (section 1983) and Swierkiewicz (Title VII). I mean, if we can't use judge-made heightened pleading requirements in the cases that I'm interested in, why should the patent lawyers have all the fun?
Not too long ago, I wrote with regard to defamation, in a somewhat related context:
Even though the counterclaim is governed by Virginia law, the federal rules of civil procedure determine the sufficiency of its allegations, and the state court rule for pleading defamation does not apply. See Wuchenich v. Shenandoah Memorial Hospital, 2000 WL 665633 (4th Cir.) (unpublished). See also Caster v. Hennessey, 781 F.2d 1569, 1570 (11th Cir. 1986) ("[w]hile [state law] requires, perhaps wisely, specific allegations of publication [of the defamatory statement] in the complaint, . . . a federal court need not adhere to a state's strict pleading requirements but should instead follow Fed. R. Civ. P. 8(a)'"); Palladino v. VNA of Southern New Jersey, Inc., 68 F. Supp. 2d 455, 475 (D.N.J. 1999) ("the specificity with which a defamation claim brought in federal court must be pled is defined by Rule 8"); Veilleux v. National Broadcasting Co., Inc., 8 F. Supp. 2d 23, 35 (D. Maine 1998) ("The sufficiency of the pleadings in a defamation case in federal court is governed by federal rules."); GE Capital Mortgage Svcs., Inc. v. Pinnacle Mortgage Investment Corp., 897 F. Supp. 854, 867 (E.D. Penn. 1995) ("Federal Rule of Civil Procedure 8(a), and not Pennsylvania law, provides the standard of specificity applicable to plaintiff’s defamation claim."); Sabatowski v. Fisher Price Toys, 763 F. Supp. 705, 713 (W.D.N.Y. 1991) ("Fed. R. Civ. P. 8(a), not [state law] supplies the standard of specificity applicable to the defamation pleading in this case."); Adler v. American Standard Corp., 538 F. Supp. 572, 576 (D. Md. 1982) (federal plaintiff not required under the Rules to "reproduce the exact words alleged to have been defamatory"). Rule 8 of the Federal Rules of Civil Procedure requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. Pro. 8(a). Defamation is not one of those "special matters" for which pleading with specificity is required under Rule 9(b).