Amended Complaints Post-twiqbal: Why Litigants Should Still Get a Second Bite at the Pleading Apple

JurisdictionUnited States,Federal
CitationVol. 89 No. 4
Publication year2021


Dane Westermeyer

Abstract: The Supreme Court's landmark decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal have had a serious effect on the way that Rule 12(b)(6) Motions to Dismiss are handled in federal courts across the country. In the five years since Iqbal was handed down, scholars and practitioners alike have discussed the merits and effects of this decision at length. However, there has been very little-if any-discussion on the relationship between amended complaints and original complaints when it comes to this newly-minted plausibility standard. This Comment aims to examine and critique a post-Twiqbal practice regarding amended complaints that is beginning to emerge in the Ninth Circuit. A number of district courts in the Ninth Circuit have held that courts may compare amended complaints to their predecessors as a part of the Twiqbal plausibility analysis. This Comment argues that this practice is not in line with the intent of Twiqbal nor with available precedent on amended complaints. As such, courts should refrain from adopting this practice going forward, and the Court of Appeals for the Ninth Circuit should strike down this emerging practice if presented with a chance to do so.


Bell Atlantic Corp. v. Twombly(fn1) and Ashcroft v. Iqbal(fn2) are amongst the most cited Supreme Court decisions of all time.(fn3) These two decisions memorialized a new era of pleading in federal courts: “plausibility” pleading.(fn4) Scholars have widely commented on the fairness or unfairness of the Twombly and Iqbal (“Twiqbal”) pleading standard.(fn5) However, legal scholars have written very little about the effect that this new pleading standard will have on the significance of amended pleadings.

Pre-Twiqbal, the rules regarding amended complaints were fairly clear in circuits across the country.(fn6) Amended pleadings are governed by Rule 15 of the Federal Rules of Civil Procedure.(fn7) That Rule instructs courts to “freely give leave [to amend pleadings] when justice so requires.”(fn8) The Pre-Twiqbal case law on Rule 15 and amended pleadings dictated that an amended pleading took its predecessor off the table.(fn9) In other words, once a party filed an amended complaint, the previous complaint was no longer of any use to the court.(fn10)

Post-Twiqbal, the rules in the Ninth Circuit are not so clear. A few district courts in the Ninth Circuit have begun to compare amended complaints to their predecessors on a Rule 12(b)(6) motion to dismiss.(fn11) To better understand this practice, consider a situation in which an amended complaint contains allegations that significantly deviate from the allegations set forth in the original complaint. Under this recent precedent taking hold in the Ninth Circuit, if there are troublesome contradictions between these two pleadings, courts may use that contradiction against the plaintiff in its plausibility analysis.(fn12) Some courts that adopt this approach argue that Twiqbal's new pleading standard justifies this practice.(fn13)

Although this approach may have benefits, it ultimately undermines the original purpose behind amended pleadings. Rule 15 is in place in order to allow “maximum opportunity for each claim to be decided on its merits rather than on procedural technicalities.”(fn14) This suggests that plaintiffs need amendments in order to have a “second bite” at the pleading apple-so to speak. Yet, under this recent, emerging Ninth Circuit practice, it appears that plaintiffs may pay a price for this second bite. Twiqbal certainly stands for the proposition that plaintiffs must come to court with a well-pleaded case,(fn15) but nothing in Twombly or Iqbal expressly requires a court to infringe on the relationship between original complaints and subsequent pleadings.(fn16)

This Comment argues that courts should decline to adopt this comparative approach to amended complaints for two reasons. First, from a stare decisis viewpoint, this practice is in tension with a large body of case law defining the purpose of amended complaints. Second, it levies undue pressure on plaintiffs to plead their complaints with particularity and foresight. As such, the Court of Appeals for the Ninth Circuit should clarify this area of the law and hold that plausibility analysis does not alter the long-standing relationship between original and amended complaints.

Part I of this Comment offers an overview of Bell Atlantic Corp. v. Twombly, Ashcroft v. Iqbal, and the early evidence regarding the effects this new pleading standard has had on federal litigation. Part II explores the historical and jurisprudential background surrounding amended complaints. Part III outlines how Post-Twiqbal district courts are responding to amended complaints. Finally, Part IV lays out an argument for why this new approach should not be widely adopted.


Bell Atlantic Corp. v. Twombly and Aschroft v. Iqbal marked the official end of the more liberal standard of “notice pleading” championed by Conley v. Gibson,(fn17) and ushered in the era of “plausibility pleading.”(fn18) Empirical studies are still emerging on what effect-if any-this heightened standard actually has on litigants.(fn19) Regardless, the sheer amount of citations and scholarly attention that these decisions have drawn suggests that these decisions may be amongst the most important that the Court has authored for civil litigants.(fn20) This Comment is not intended to be an in-depth discussion of the merits-or lack thereof-of the Twiqbal movement.(fn21) However, a basic understanding of the effect that Twiqbal has had on federal litigation provides context for the controversy over amended complaints arising in the Ninth Circuit.

A Brief History of Pleading Standards

American pleading standards have gone through a number of iterations before arriving at Twiqbal's plausibility pleading standard. American pleading began with a system (inherited from England) known as common law pleading.(fn22) By the middle of the nineteenth century, problems with the rigid structure of common law pleading led to a new system: code pleading.(fn23) In the 1930s, the new Federal Rules of Civil Procedure abandoned code pleading in favor of what eventually became known as notice pleading.(fn24) Finally, with the decision rendered in Iqbal, notice pleading was pushed out in favor of plausibility pleading.(fn25) Each standard is briefly discussed below.

1. Common Law Pleading and Code Pleading

The earliest form of pleading practiced in American courts was known as common law pleading, which was developed in the English courts of common law.(fn26) Generally, common law pleading required that parties allege a single “form of action” that would govern the lawsuit.(fn27) This form of action determined the court's choice of law and the procedural steps that court was permitted to take.(fn28) In response, a defendant was allowed to: (1) contest the legal sufficiency of the plaintiff's factual allegations; (2) contest the truth of a factual assertion made by the plaintiff; or (3) accept the factual and legal allegations, but assert a new ground under which the defendant is not responsible.(fn29) Regardless of which route the defendant chose to take, the court could only decide one issue.(fn30) This made early decisions quite simple and straightforward, but also extremely limited.(fn31)

By the 1850s, American courts had begun to abandon common law pleading in favor of a new standard of code pleading famously championed by the State of New York and David Dudley Field.(fn32) Code pleading abolished the old “form of action” requirements.(fn33) Instead, code pleading required that the complaint contain “[a] statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.”(fn34) A defendant was required to respond “to each allegation of the complaint controverted by the defendant” with “a specific denial thereof, or of any knowledge thereof sufficient to form a belief.”(fn35) Additionally, a defendant was allowed to allege any new, related defense to the plaintiff's complaint.(fn36) Code pleading gave both plaintiffs and defendants freedom to add additional claims and defenses, but eventually that standard also became too unwieldy to yield efficient or fair results.(fn37)

2. The Move to Notice Pleading

By the 1930s, it was clear that code pleading was causing many of the same problems that led to the demise of common law pleading.(fn38) The 1938 revision to the Federal Rules of Civil Procedure adopted a notice pleading system to try to cure these pleading problems.(fn39) Judge Charles E. Clark, the principal drafter of the new federal rules, suggested that the solution to the problems of common law pleading and code pleading was to “expect less” from pleadings.(fn40) Not surprisingly, the new federal rules that Judge Clark helped to draft “massively deemphasize[d] the role of pleadings.”(fn41)

The Federal Rules of Civil Procedure only require that a complaint contain “a short and plain statement of the claim.”(fn42) This was not meant to be a demanding standard. Dioguardi v. Durning,(fn43) a...

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