The Twombly Trilogy: Exploring the New "plausibility" Standard for Motions to Dismiss in Kansas Federal Courts
| Publication year | 2010 |
| Pages | 20 |
By Michael C. Leitch and Ryan C. Hudson
I. Introduction
For most Kansas practitioners who appeared in federal court during the last half century, a motion to dismiss for failure to state a claim for relief was a predictably short event: it was denied. Until 2007, a motion to dismiss filed under Federal Rule 12(b)(6) was "disfavored"[1] and "could be granted only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."[2]
That lax standard was jettisoned, however, in a string of recent U.S. Supreme Court (Supreme Court/Court) decisions known as the Twombly Trilogy. In Twombly (2007),[3]Erickson (2007),[4] and Iqbal (2009),5 the Supreme Court radically raised the bar for surviving a motion to dismiss filed under Federal Rule 12(b)(6). In turn, practitioners in Kansas federal courts must become familiar with ⸻ and strategically consider ⸻ the new motion to dismiss standard introduced in Twombly, applied in Erickson, and cemented in Iqbal. Because Kansas state courts have traditionally followed federal interpretation of similar federal procedural rules,[6] these decisions may also affect state court motion practice.
In the wake of these decisions, a complaint must now include enough factual detail to state a "plausible" claim for relief on its face. This significant change in the Rule 12(b)(6) motion to dismiss standard cannot be overstated. In short, the Twombly Trilogy has been received by lower courts as a decree to dispose of "implausible" cases at the onset, before discovery has commenced. The results speak for themselves: Within only four months after Iqbal was decided, national commentator Tony Mauro observed that motions to dismiss "have become commonplace in federal courts, already producing more than 1,500 district court and 100 appellate court decisions according to a Westlaw search."[7]
This article begins with a discussion of the notice pleading standard in place since Conley v. Gibson was decided in 1957, as well as the three cases of the Twombly Trilogy that recently imposed the "plausibility" standard in place of Conley. It then examines how the Tenth U.S. Circuit Court of Appeals, in particular, has interpreted the new "plausibility" standard for motions to dismiss. Finally, this article explores some considerations for both plaintiffs and defendants litigating in federal court under the new "plausibility" standard.
II. Background
A. The notice pleading standard under Conley v. Gibson
Under the long-established notice pleading standard of Fed. R. Civ. P. 8(a)(2), a complaint must include "a short and plain statement of the claim showing that the pleader is entitled to relief." A complaint's failure to state a claim for relief usually is tested at the motion to dismiss stage, which is controlled by Fed. R. Civ. P. 12(b)(6).
For the last half century, the Supreme Court's decision in Conley v. Gibson ⸻ long-dreaded by civil defendants ⸻ made motions to dismiss disfavored. The Conley standard required that under Rule 12(b)(6), "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."[8]
As a result of this daunting standard, a complaint could be dismissed only if it was legally deficient. As the Tenth Circuit recalls, "a complaint containing only conclusory allegations could withstand a motion to dismiss unless its factual impossibility was apparent from the face of the pleadings ⸻ that is, a complaint was immune from dismissal if it left open the possibility that a fact not alleged in the complaint could render the complaint sufficient."[9] Thus, until recently, a complaint's lack of specific factual allegations was almost always a non-factor at the motion to dismiss stage.
B. The Twombly Trilogy and the "plausibility" pleading standard
1. Bell Atlantic v. Twombly
Departing from 50 years of precedent, the Supreme Court resurrected the motion to dismiss when it decided Bell Atlantic Corp. v. Twombly in 2007.[10] The facts alleged in Twombly were sparse: the plaintiffs (a putative class action) sued four major telecommunications companies for antitrust violations under the Sherman Act.[11] The plaintiffs alleged the defendants conspired to not compete and to fix prices in "parallel conduct," which the plaintiffs alleged, in conclusory fashion, arose through an "agreement." However, the complaint failed to "set forth a single fact" supporting the allegation that such an agreement among the defendants actually existed.[12] To this end, although the complaint alleged a sweeping seven-year span of conduct, it "mentioned no specific time, place, or persons involved in the alleged conspiracies."[13]
This dearth of factual detail proved fatal. Facing nothing more than conclusory assertions, the Supreme Court in Twombly held that dismissal was required because "parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality."[14] In reaching this holding, the Court also "retired" the "no set of facts" language from Conley, which it concluded "is best forgotten as an incomplete, negative gloss on an accepted pleading standard."[15]
In its place, the Court devised a new Rule 12(b)(6) standard - plausibility - and held that a compliant must offer enough facts to state a claim for relief that is plausible on its face.[16] The Court explained that this requires "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."[17] In determining how much factual detail is required to reach the plausibility threshold, the Court explained that "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the compliant are true (even if doubtful in fact)."[18] Because the plaintiffs in Twombly had "not nudged [their] claims across the line from conceivable to plausible," the complaint was dismissed.[19]
2. Erickson v. Pardus
While undoubtedly a welcome opinion for antitrust defendants, the reach of Twombly was unclear. Nothing in the majority's opinion addressed whether the holding was confined to antitrust cases or whether it applied across contexts.[20]
Within months of issuing Twombly, the Supreme Court added even more uncertainty to this question when it handed down Erickson v. Pardus.[21] In contrast to the sweeping allegations of the complaint in Twombly, the allegations in Erickson were simple and specific. A Colorado prisoner asserted a constitutional violation under 42 U.S.C. § 1983 and alleged the following: (1) he had hepatitis C; (2) he was receiving treatment in prison; (3) prison officials were withholding his hepatitis C medicine; and (4) his life was in danger as a result.[22]
The Tenth Circuit affirmed the district court's dismissal of the prisoner's complaint as conclusory, but the Supreme Court reversed. Under Rule 8(a)(2), and quoting Twombly, it held that "[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.'"[23] "In addition," the Court pointed out, "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint."[24] For those reasons, the Court reversed the dismissal and allowed the claim to proceed.[25]
To many, this outcome raised more questions than it answered regarding Twombly. Some viewed the decision in Erickson as a sign ⸻ a "two steps forward, one step back" result ⸻ that the Supreme Court was tempering its holding in Twombly. Still others dismissed Erickson outright as a nonevent. They pointed out that the decision was merely per curiam and that the complaint included such specific facts that it would have survived any pleading standard. The plaintiff also was a pro se prisoner and was therefore entitled to have the complaint liberally construed in his favor.[26] In sum, at the close of 2007, whether Twombly would blossom beyond the realm of antitrust cases remained uncertain.
3. Ashcroft v. Iqbal
In May 2009, when a five-justice majority of the Supreme Court decided Ashcroft v. Iqbal, all doubts about the scope of Twombly evaporated.[27] In Iqbal, the Supreme Court amplified the "plausibility" pleading standard set forth in Twombly and confirmed that it applies to "all civil actions" in federal court, "whether brought under antitrust laws or otherwise."[28]
The facts in Iqbal involved a Pakistani pretrial detainee who sued, among others, former U.S. Attorney General John Ashcroft and former FBI Director Robert Mueller for unlawful and purposeful discrimination in violation of his constitutional rights. Iqbal alleged that Ashcroft and Mueller devised and adopted policies that unconstitutionally discriminated against him while he was housed in a New York City special maximum security housing unit following the terrorist attacks of Sept. 11. The...
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