Twombly & Iqbal The New Federal Pleading Standard Plaintiffs Attorneys Must Stop and Take Notice Of


Annie B. Hirsch Te litigation blogs have all been abuzz as the news has


spread, and cases have been dismissed in the wake of the United States Supreme Court’s decision in Ashcroft v Iqbal, 129 S.Ct. 1937 (2009). In this landmark case the court held that Iqbal, a Muslim Pakistani immigrant who was arrested and detained under highly restrictive circumstances as the result of a 9/11 investigation, could not sue two Bush administration officials for what he recounted was the terrible abuse he suffered. Te abuse alleged by Iqbal included five months of solitary confinement while shackled at his arms and legs, strip searches, ongoing physical and verbal abuse, and denial of medical care. Te basis for the dismissal: insufficient factual evidence supporting the allegations in the Plaintiff ’s complaint. While socio-political activists relay their outrage in response to this denial of accountability and violations of the constitution, civil litigation attorneys are weighing their options in response to the practical fallout from this case. Te day to day reality of Iqbal is that the Supreme Court has taken the stricter pleading standard it asserted in Bell Atlantic v Twombly, 550 U.S. 544 (2007) (an antitrust case decided while Iqbal was on appeal) and used Iqbal to apply it to all civil cases which have been and will be filed in Federal Court. However, the Court failed to provide a user-friendly barometer for determining how to meet this new standard, and it neglected to provide a concrete method for its consistent application. Tese vagaries leave Plaintiffs attorneys with multiple crucial questions: What is required by this new stricter pleading standard and how do we meet it? How do we do so prior to the provision of a single piece of discovery? And what happens if a new or already filed claim falls short of this newly elaborated standard? Te following will hopefully serve as both a guide and a warning to Plaintiffs attorneys. We must carefully draft and review our Federal complaints to ensure that we do not fall victim to the dismissal of our client’s claims due to a mere technicality.


Conley to Twombly to Iqbal In 1957, the Supreme Court held in Conley v Gibson


that a Federal complaint was sufficient and should not be dismissed unless “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.” Conley v Gibson , 355 U.S. 41 at 45-46 (1957). Tis was the reasonable and accepted notice-pleading standard which Plaintiffs had been held to in Federal court


We must be equally diligent in educating ourselves and fortifying our claims so that they are deemed by the courts as trial worthy and not unsubstantiated refuse to be casually dismissed.


for forty years. However, in 2007 the Supreme Court replaced this


standard of possibility with one of plausibility. In


Twombly, the Supreme Court held that “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level. Te pleading must contain something more than a statement of facts that merely creates a suspicion of a legally cognizable right of action, on the assumption that all the allegations in the complaint are true (even if doubtful in fact.)” Bell Atlantic v. Twombly, 550 U.S. at 555. In short, a Plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Id at 570. After the decision in Twombly was handed down,


there was an ongoing debate within the legal community as to whether this heightened standard would be limited to antitrust cases. From 2007 to 2009, the courts generally assumed a more restricted application. However, all cause for question was halted when the Supreme Court handed down its decision in Iqbal, making it unequivocally clear that the reach of this standard of plausibility had spread beyond the narrow scope of antitrust cases and been extended to all civil cases which had been, or would ever be, filed in a Federal court.


Retired Judge Clifton J. Gordy


MEDIATION SERVICES PO Box 1307


Ellicott City, MD 21041


Phone: (410) 744-3015 • Cell: (410) 591-6622 E-mail: cjg2303@comcast.net


Trial Reporter / Winter 2010 9


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