Plausible Deniability

• Author: Michael J. Miarmi
• Pages: 28-33

Published in Litigation, Volume 47, Number 2, Winter 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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“Plausible” Deniability

What Is Required to Overcome

a Motion to Dismiss Under the

Modern Pleading Regime?

MICHAEL J. MIARMI

The author is a partner with Lieff Cabraser Heimann & Bernstein, LLP, New York City.

Among the 86 Federal Rules of Civil Procedure, Rule 8 is ar-

guably one of the most—if not the most—important, as it sets

the initial test all federal plaintiffs must pass in pursuing their

claims. And with courts’ increasing imposition of discovery

stays during the pendency of motions to dismiss, sufficiently

pleading a claim is often a prerequisite to obtaining the facts

(often solely within defendants’ possession) in support of that

claim. This modern regime poses something of a catch-22 for

civil plaintiffs: Allege sufficient factual matter at the outset

of a case, when you may have little access to the underlying

facts, to allow you to proceed to the fact-gathering stage. On

the other hand, subjecting defendants to the often significant

costs of discovery without first weeding out truly meritless

claims would be inequitable.

Courts have long wrestled with how deeply to scrutinize al-

legations at the pleading stage, but that question has become

even more thorny following two decisions from the U.S. Supreme

Court that have altered both the language and the landscape of

pleading in civil cases: Bell Atlantic Corp. v. Twombly, 550 U.S.

544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Even now,

more than a decade after those decisions were issued, courts

and commentators continue to render differing interpretations

of exactly what the Supreme Court was saying and how much

discretion a judge has in deciding whether a plaintiff has satisfied

Rule 8’s mandate to provide “a short and plain statement of the

claim showing that the pleader is entitled to relief.”

As practitioners, though, it is not necessary to attempt to har-

monize the myriad appellate decisions interpreting Twombly

and Iqbal. There are several pragmatic considerations to think

about when crafting allegations, which can help carry a complaint

across the threshold at the pleading stage. A history of how the

law got to its current place and how practitioners can success-

fully run the “Twiqbal” gauntlet is discussed below.

Twombly

For nearly 50 years, the pleading standard in civil cases was in-

formed by the Supreme Court’s instruction in Conley v. 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.” 355 U.S. 41, 45–46 (1957). Many judges understood that

admonition, even if not taken literally, as setting a low bar at the

pleading stage. A complaint’s sufficiency was measured primarily

by whether it afforded the defendant “fair notice” of the basis

of the plaintiff’s claim so it could prepare an adequate defense.

In its 2007 decision in Twombly, however, the Supreme Court

refashioned the test for determining whether a complaint satisfies