Twombly and Iqbal at the State Level

• Date: 01 June 2017
• Author: Roger Michalski,Abby K. Wood
• DOI: http://doi.org/10.1111/jels.12152
• Published date: 01 June 2017

Twombly and Iqbal at the State Level

Roger Michalski and Abby K. Wood*

This article contributes to the empirical literature on pleading standards by studying the

effect of Twombly and Iqbal at the state level. States account for the majority of civil

litigation, yet they are understudied doctrinally and empirically. When we consider

pleading at the state level, we can leverage differences across space and time in a way that is

impossible with studies of federal courts. Using an array of principled empirical approaches

on the best available data, we find no evidence that raising pleading standards affected

plaintiff behavior. We observe no decrease in filings and no significant change in complaint

length, number of claims, or number of amended complaints. For defense strategy and

judicial responses, we find no increase in motions to dismiss and no increase in the grant

rate on motions to dismiss, though these findings are more tentative, given data limitations.

We conduct our analysis by comparing Nebraska, a state that raised its pleading standards,

with as many as 12 comparison states, none of which raised their pleading standards over

the years 2006--2013.

I. Introduction

Bell Atlantic Corp. v. Twombly

1

and Ashcroft v. Iqbal

2

reformulated federal pleading

standards for the first time in 50 years. An important and rapidly expanding

academic literature debates the empirical impact of this change. Previous studies

have found mixed results. Until now, scholars have focused entirely on federal

courts, where only a small fraction of civil cases (between 2–5 percent) are

*Direct correspondence to Roger Michalski, University of Oklahoma College of Law, 300 Timberdell Rd., Nor-

man, OK 73019; email: roger.michalski@ou.edu. Michalski is Associate Professor at the University of Oklahoma

College of Law; Wood is Associate Professor of Law, Political Science, and Public Policy at University of Southern

California.

The authors thank Jason Cantone, Joe Cecil, Kevin Clermont, Sean Farhang, Jonah Gelbach, Simona Grossi,

William Hubbard, Dan Klerman, Martha Minow, Stephen Rich, anonymous reviewers, and participants at the

2014 Conference on Empirical Legal Studies, 2014 Law and Society Association Annual Meeting, 2014 Midwest-

ern Political Science Association Meeting, and USC Faculty Workshop for helpful comments. USC Law Librarian

Karen Skinner provided stellar research help, and the authors are also grateful to the dozens of state judiciary

employees who assisted them in obtaining whatever data their states had available. Finally, the authors appreciate

the research support of students Sonia Bui, Andrew Hurley, Irma Vargas, and Oliver Wu.

1

Bell Atl. Corp v. Twombly, 550 U.S. 544 (2007).

2

Ashcroft v. Iqbal, 556 U.S. 662 (2009).

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Journal of Empirical Legal Studies

Volume 14, Issue 2, 424–469, June 2017

litigated.

3

In the wake of Twombly and Iqbal, some states followed the federal

courts in switching from “notice pleading” to “plausibility pleading.” Others

declined to change their interpretation of local pleading rules and practices.

4

In

this study, we exploit this divergence among states to take a fresh look at the

effect of heightened pleading standards. We focus on Nebraska, a state that

switched from notice to plausibility pleading in 2010 and for which data of reason-

able quality are available.

5

Studying state courts in Nebraska enriches our understanding of pleading stand-

ards because at least 95 percent of litigation occurs at the state level. A change in plead-

ing standards might have a greater impact in state court because claims in state court

are generally smaller, so litigants might be more sensitive to the cost of litigation. This

should make them more susceptible to even small changes in the gate-keeping capacity

of pleading standards. We might also expect judges to react differently in state courts

because many state judges are subject to electoral and caseload pressures not experi-

enced by federal judges. This might make them more willing to read Twombly and Iqbal

as invitations to control their dockets and quickly dispose of the least promising suits.

All this suggests that state courts are a good place to look for the effects of Twombly and

Iqbal that many expected at the federal level but have had mixed success demonstrating.

Although state and federal judiciaries vary, litigant motivations are sufficiently similar

across jurisdictions that litigant reactions to pleading standards at the state level are

informative of likely effects at the federal level as well.

Focusing on the state level provides methodological advantages; it allows us to

compare changes both over time and across states because states that did not change

their pleading standards act as controls for Nebraska, which did. This provides a more

robust identification strategy than has been used in studying at the federal level, where

only changes over time can be analyzed. Because Twombly and Iqbal were decided around

the time of the financial crisis of 2008 and the Great Recession, analyses that rely exclu-

sively on change over time are problematic.

Using a variety of principled empirical approaches, we find that changing plead-

ing standards in Nebraska did not affect plaintiff, defendant, or judicial behavior. In

addition to analyzing outcomes studied in prior research—motion to dismiss (MTD)

grants and filing rates—we also look at prior stages in the litigation process, analyzing

3

Almost 18 million civil cases were initiated in state courts in 2010. On the federal side, 280,000 civil cases were

initiated in U.S. district courts. See Federal Judicial Caseload Statistics 2010, Admin. Office of the U.S. Courts

(Mar. 31, 2010), http://www.uscourts.gov/Statistics/FederalJudicialCaseloadStatistics/FederalJudicialCaseloadSta-

tistics2010.aspx; State Court Caseload Statistics, Court Statistics Project, http://www.courtstatistics.org/Other-

Pages/StateCourtCaseloadStatistics.aspx (last visited Apr. 6, 2016).

4

See, e.g., McCurry v. Chevy Chase Bank, 233 P.3d 861 (Wash. 2010); Roth v. DeFeliceCare, Inc., 700 S.E.2d 183,

189 n.4 (W.Va. 2010).

5

Doe v. Board of Regents, 280 Neb. 492, 788 N.W.2d 264 (2010) contains a very thorough discussion of Twombly

starting on page 499 and running to 506. The court stated “[b]ecause the Nebraska Rules of Pleading in Civil

Cases are modeled after the Federal Rules of Civil Procedure, we have adopted from federal case law these stand-

ards for testing the sufficiency of a plaintiff’s complaint.” Id. at 499.

425Twombly and Iqbal at the State Level

complaint filing rates, the length and number of claims, the number of exhibits

attached to complaints, and the number of amended complaints.

6

Our examination of

litigant behavior at the filing stage helps us overcome some of the selection problems

noted in prior work.

II.

Twombly

and

Iqbal

Federal pleading standards have long been debated against the backdrop of two narra-

tives. One narrative holds that overly litigious plaintiffs abuse the court system to harass

defendants with frivolous lawsuits in order to extract unjustified settlements. Under this

narrative, pleading standards should be strict and high in order to filter out frivolous

lawsuits. The other narrative focuses on wronged plaintiffs, often disadvantaged individ-

uals, who face powerful defendants who control and conceal information plaintiffs need

to prevail. Under this narrative, pleading standards and procedure should be loose and

low because pleadings are primarily costly hoops that plaintiffs have to jump through to

obtain justice.

Variations of these two narratives have guided the evolution of U.S. pleading

regimes. Over time, pleading evolved from formalistic common-law pleading, to the sim-

plified pleading under the Field Code, to notice pleading under the Federal Rules of

Civil Procedure and Conley v. Gibson’s liberal interpretation of Rule 8.

7

Conley endorsed

“the accepted rule 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.”

8

For more than half a century, federal

pleading standards were mostly governed by the notice pleading standard first

announced in Conley v. Gibson.

9

In Bell Atlantic Corp. v. Twombly,

10

the Supreme Court abrogated Conley’s standard

for judging the sufficiency of pleading in an antitrust suit. Twombly replaced the old

notice pleading rule with a new “plausibility” pleading standard. Under this standard, a

complaint must allege “enough facts to state a claim to relief that is plausible on its

face” or risk dismissal. Twombly arose in the context of an allegation of “antitrust

6

See, e.g., Corina D. Gerety & BrittanyK.T. Kauffman, Inst. for the Advancement of the Am. Legal Sys., Summaryof

Empirical Research on the Civil Justice Process: 2008--2013 (May 2014), http://iaals.du.edu/images/wygwam/docu-

ments/publications/Summary_of_Empirical_Research_on_the_Civil_Justice_Process_2008-2013.pdf. Cf. Christina L.

Boyd et al., Building a Taxonomy of Litigation:Clusters of Causes of Action in Federal Complaints, 10 J. Empirical

Legal Stud.253, 274 (2013).

7

Conley v. Gibson, 355 U.S. 41, 46 (1957).

8

Id. at 45--46. See Fed. R. Civ. P. 12(b)(6).

9

Conley, 355 U.S. at 45--46. Though somewhat stable, the notice pleading regime has for long been complicated.

See generally Christopher M. Fairman, The Myth of Notice Pleading, 45 Ariz. L. Rev. 987 (2003).

10

Twombly, 550 U.S. at 555.

426 Michalski and Wood