No suit for you! Iqbal's effect on potentially meritorious cases and the "compound allegations" solution.

AuthorAngles, Giovanni


Just follow the ordering procedure and you will be fine.... As you walk in the place, move immediately to your right.... [K]eep the line moving.... [H]old out your money, speak your soup in a loud clear voice, step to the left and receive.... It's very important not to embellish on your order. No extraneous comments. No questions. No compliments. (1) These were the instructions given to Jerry Seinfeld and his friends, in order to buy their lunches from the infamous "Soup Nazi." (2) They subject themselves to these draconian rules because it is the best tasting soup in the city. If the rules are violated, the offender is banished with the scathing admonishment: "No soup for you!" (3)

Our civil pleading system is beginning to resemble the Soup Nazi's lunch counter. A plaintiff must file her complaint with an increasing amount of specific factual allegations in order to move on to the pretrial discovery stage. Failing to adhere to these tougher standards will likely result in a granted motion to dismiss for failure to state a claim. No suit for you.

This Note attempts to analyze this "brave new world" of pleading by applying the Ashcroft v. Iqbal (4) standard to cases that passed muster under the well-established Conley v. Gibson (5) precedent. Part I covers the history of notice pleading and highlights its intended role as a simplified method of initiating litigation. Part II discusses the recent changes wrought by Bell Atlantic Corp. v. Twombly (6) and Iqbal in creating a new two-pronged "plausibility" standard that also classifies complaint elements as being either factual allegations or legal conclusions. Part III analyzes the pleadings of Swierkiewicz v. Sorema N.A., (7) Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, (8) and Ledbetter v. Goodyear Tire & Rubber Co., (9) which were all sufficiently pleaded under the Conley standard, finding that they likely would never make it to discovery, post-Iqbal. Part IV proposes a potential solution for plaintiffs, by recommending that they draft their complaints using mostly "compound allegations" in order to inoculate their legal conclusions from Iqbal's first prong filter.


    Notice pleading arose out of a long history that evolved from the highly technical common-law pleading system inherited from England, (10) and the subsequent code pleading system adopted in about half of the states by the year 1900. (11) Pleadings traditionally fulfilled four major functions: (1) providing notice of the nature of a claim or defense, (2) stating the facts each party believes to exist, (3) narrowing the issues to be litigated, and (4) providing for the means of speedy disposition of sham claims and insubstantial defenses. (12) Fulfilling all of these policy goals led to a cumbersome system where cases were just as often decided on the basis of technicalities and pleading defects as on their merits. (13)

    The adoption of the Federal Rules of Civil Procedure significantly simplified the pleading requirements. Rule 8 states that a claim for relief requires "a short and plain statement" of the grounds for jurisdiction, "a short and plain statement of the claim showing that the pleader is entitled to relief; and a demand for the relief sought." (14) After Rule 8 was in place, most of the traditional requirements of pleading were delegated to other pretrial events. (15) With this change, "[t]he relevant facts may be determined by discovery. The issues likewise may be narrowed by discovery ... or by 'partial summary judgment' under Rule 56(d). Moreover, cases in which there is no real controversy may be disposed of speedily, finally, and on the merits, by summary judgment." (16) In 1947, Charles E. Clark, the principal drafter of the Rules, defined the change as a simplified code pleading system primarily designed to promote fact pleading, which placed a "great emphasis" on stating the facts of the case. (17) He identified notice pleading as a relatively new perspective that had some support among legal scholars for universal adoption. (18) Ten years later, the Supreme Court embraced the concept of notice pleading in Conley v. Gibson. (19)

    J.D. Conley worked in the Texas and New Orleans Railroad Company where, as a condition of employment, he was required to join a labor union known as the Brotherhood. (20) Because he was black, he was barred from joining the all-white lodge, Local 28, and instead was "forced to maintain membership in Local 6051." (21) The two local union lodges were racially segregated but otherwise presumably equal. (22) On May 1, 1954, the railroad company eliminated forty-five paid positions, all of them belonging to Local 6051 members. (23) Advance warning was not provided as required by the union agreement, and none of the white employees from Local 28 lost their jobs. (24) The few black workers that did get rehired lost their seniority and were considered junior to their newly hired white coworkers. (25)

    Conley (and his coplaintiffs) sued the Brotherhood for committing "a planned course of conduct designed to discriminate against petitioners and those similarly situated, solely because of their race or color." (26) The complaint also alleged that the Brotherhood "had failed in general to represent Negro employees equally and in good faith." (27) After the Fifth Circuit affirmed the district court's decision to grant the defendant's motion to dismiss (on jurisdictional grounds), the Supreme Court reversed the judgment and allowed Conley's case to proceed. (28) On the issue as to whether Conley's plea was sufficient, the Court unanimously held that it was adequate, explaining that a case cannot 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." (29) By establishing the "no set of facts" standard, the Court interpreted Rule 8(a) to demand only notice pleading. This interpretation usurped Clark's original idea that the Federal Rules merely established a simplified code pleading system. Over the next fifty years, the Supreme Court reaffirmed the Conley standard time and again (30) until the one-two punch of Twombly and Iqbal dramatically changed the rules governing the sufficiency of pleadings. (31)


    1. Bell Atlantic v. Twombly

      William Twombly was not the first person to complain about his high monthly bills for home telephone service and Internet access. As a former customer service representative for a Twombly defendant, the author of this Note personally received calls from thousands of customers just like Twombly that wanted to air their grievances. What those customers did not tend to do, however, was file nationwide class action antitrust lawsuits.

      The days of each Incumbent Local Exchange Carrier (ILEC) being the exclusive provider of phone service in a given area ended with the Telecommunications Act of 1996. (32) In exchange for the anticipated increase in competition for local telephone service, the ILECs were allowed the opportunity to sell long-distance service. (33) The deregulation of local telephone markets did not result in increased competition for two reasons: first, upstart competitors were unable to meaningfully compete against the ILECs, and second, the ILECs themselves did not venture into each other's territorial strongholds. (34) Twombly's claim was that the ILEC Baby Bells had conspired to "engag[e] in parallel conduct" by stifling competition and "refrain[ing] from competing against one another," in violation of [section] 1 of the Sherman Act. (35)

      The Supreme Court reversed the Second Circuit's decision to reverse the district court's dismissal of the case for failure to state a claim. (36) The Court held that, while it was technically possible that the defendants' actions resulted from an illegal conspiracy, the plaintiff failed to allege "enough facts to state a claim to relief that is plausible on its face." (37) The claims did not cross "the line from conceivable to plausible" because the alleged activities were legal, so long as there was no actual agreement among the defendants. (38) Also, the defendants' behavior was perfectly rational in the absence of a conspiracy, considering the peculiar nature of the telecommunications industry. (39)

      The Court insisted that Twombly does not create a heightened pleading standard nor does it collapse into the specified pleading requirements of Rule 9 claims of fraud and mistake. (40) By requiring that pleadings contain enough allegations to fulfill a "plausibility standard," Twombly departs from the idea of traditional notice pleading by allowing courts to dismiss "implausible" cases before discovery opens the door to skyrocketing legal expenses. (41) The possibility that the plausibility requirement was limited to antitrust cases (42) was dispelled by the following case, where the Court signaled its intent to eliminate pure notice pleading for all civil cases.

    2. Ashcroft v. Iqbal

      Before I go to prison, the America that I know is a beautiful country and Americans are such beautiful, kind, humble people. When I go to prison, I see there a different face of the United States of America.

      Javaid Iqbal (43)

      Javaid Iqbal found himself in the oft-cliched "wrong place at the wrong time." He lived in Long Island as a cable repair technician for ten years before the September 11, 2001 terrorist attacks. (44) He was arrested in his apartment less than two months later. (45) Federal agents (on an unrelated investigation) entered his apartment and found a Time magazine with the burning Twin Towers on the cover. (46) They also found paperwork showing that he was in Lower Manhattan picking up a work permit that September morning. (47) Iqbal was one of 184 detained individuals classified as "of high interest" in the Department of Justice's (DOJ) September 11...

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