One year after Iqbal apparently solidified the new regime, this Commentary examines the real-world effect of Twombly and Iqbal on dismissals in federal civil cases; analyzes, in light of this effect and indications so far from the lower courts, what factors practitioners should consider at the Rule 12(b)(6) stage; and explains the proposed congressional responses. in a simple factual situation vary from those in more complex factual situations") (internal quotation marks omitted).
And following the Supreme Court's decisions in Bell Atlantic v. Iqbal (2009), few issues have generated as many questions.Gibson 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." The Twombly Court instead explained that Rule 8 of the Federal Rules of Civil Procedure requires that a complaint include facts (as distinct from legal "labels" and "conclusions") giving rise to a "plausible" (rather than merely "conceivable") entitlement to relief.Two years later in Iqbal, the Court confirmed that Twombly applies to all civil suits, not just antitrust cases or complex cases, and by a 5–4 vote rejected a complaint under Bivens alleging that, following the 9/11 terrorist attacks, former Attorney General John Ashcroft and FBI Director Robert Mueller unconstitutionally ordered restrictive and harsh detention of certain Arab Muslims.across the line from conceivable to plausible." Iqbal, 129 S. Although the phrase "judicial experience and common sense" has provoked much speculation and criticism, it so far has not proven elusive for the lower courts. To the contrary, a court will rely on substantial judgment and intuition in distinguishing between facts and conclusions as well as in determining whether the facts alleged create a plausible inference of liability. Thus, the level of factual support required increases as proof of the claim grows more difficult and complex.They have understandably rejected claims that this phrase authorizes them to recognize additional case-specific facts in ways they could not on a motion to dismiss before Twombly and Iqbal. First Correctional Medical, 2010 WL 1418347, *3 (D. Most generally, and as already suggested, lower courts applying Twombly and Iqbal exercise this discretion differently depending on the circumstances, dismissing as conclusory a greater number of factual allegations or taking a more stringent view of the facts required to create plausibility where the case raises special concerns. Tex.) (holding that a patent infringement properly alleged on Form 18 will state a claim); Halton Co. Under this view, a key task for a defendant, in addition to marshaling complaint-specific arguments under Iqbal's formal framework, will be to emphasize every facet of the case that would warrant a more stringent application of the plausibility standard.Del.) ("[T]he court may only consider matters incorporated by reference or relied upon in the claims, items subject to judicial notice, matters of public record, orders, items appearing in the record of the case, and exhibits of unquestioned authenticity attached to the complaint."). The Seventh Circuit, for example, has said so explicitly since Iqbal: "This case is not a complex litigation, and the two remaining defendants do not claim any immunity. and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility." Cooney v. The Third Circuit similarly has observed that "[c]ontext matters in notice pleading. A defendant could accomplish this task in several ways.Twombly and Iqbal do not suspend Rule 12(d)'s requirement that motions to dismiss relying on facts outside the pleadings be treated as motions for summary judgment. Another reasoned that "common sense counsels against inferring that a substantial international bank, bearing an historic name and presumably wishing to maintain a global reputation for integrity and honorable dealing, would, with no stake in the criminal securities fraud itself, and no financial incentive other than to maintain the patronage of a fee-generating client, enter into a conspiracy with two … Fair notice under Rule 8(a)(2) depends on the type of case….'" Phillips v. Again, the Courts of Appeals are credibly drawing on the Supreme Court's decisions. P., Appx., Form 10 ("The defendant owes plaintiff $___ according to the account set out in Exhibit A"); Form 11 ("On defendant negligently drove a motor vehicle against plaintiff"); Form 18 (alleging that plaintiff owned a particular patent and that defendant infringed the patent by making, selling, and using a particular product). First, a defendant might suggest, where appropriate given the nature of the case, that the plaintiff's claim is meritless or abusive. Cooney, 583 F.3d at 971 ("This case is not a complex litigation, and the two remaining defendants do not claim any immunity. Ill.) (citing Twombly and Iqbal, allowing only two interrogatories that defendant admitted it could answer without much difficulty, and noting that "the policy against burdensome discovery in complex cases during the pendency of a motion to dismiss holds fast").Looking Ahead: Rumblings from Congress In response to objections that Twombly and especially Iqbal have closed the federal courts to worthy plaintiffs, legislators have introduced bills in both the House of Representatives and the Senate with the stated goal of reinstating the pleading standards in effect before the decisions. 4115), would impose a literal reading of Conley by providing that "[a] court shall not dismiss a complaint under [Rules 12(b)(6), 12(c), or 12(e)] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief." The bill would also bar dismissal based on implausibility or lack of facts sufficient "to warrant a reasonable inference that the defendant is liable for the misconduct alleged." By its terms, the bill would allow a plaintiff to proceed to discovery simply by naming a cause of action and alleging that a defendant is liable under it.Although the bills purport merely to undo Twombly and Iqbal, whether they would simply do this is a serious question, one that highlights the extent to which, as discussed above, Twombly and Iqbal built on existing judicial practice. Moreover, a court would be prohibited from dismissing even the most incredible and unsubstantiated claims under Rule 12—including those involving "little green men" or conspiracies among high-ranking government officials.Such cases, usually pro se, are not unheard of since Iqbal. does not prevent a plaintiff from pleading facts alleged 'upon information and belief'  where the facts are peculiarly within the possession and control of the defendant, or  where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Thus, the "information and belief" label is a signal to consider whether the plaintiff has met one of these requirements.A paradigm for the first is when a case turns on the content of records of the defendant.