Te majority opinion in Iqbal set forth a two pronged


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March 1, 2010 10 Trial Reporter / Winter 2010


test for determining the sufficiency of factual evidence in a complaint. When determining whether or not to grant a Defendant’s 12(b)(6) motion, a court must first identify those assertions in the complaint which are factual as opposed to those which are merely conclusory in nature. Once these facts have been identified, the court must then evaluate the factual assertions in order to determine whether they are sufficient to form the basis of a claim for relief. Id at 1949-1950. If the factual assertions are found to be insufficient, the claim is dismissed without prejudice. If the statute of limitations has run, then the Plaintiff ’s claim may be barred. While many of us in the legal profession at times revel


in multi-pronged tests, tests which often provide us with a sense of guidance and security when filing our claims, this one cannot be said to possess such qualities. Distinguishing between factual evidence and mere conclusions is a difficult subjective assessment for which the Iqbal court provides little guidance. For instance, the Plaintiff in Iqbal had listed numerous occurrences in his complaint as to what abuses he had allegedly endured and where and when he had endured each offense. However, the Court rejected these factual accounts as substantive evidence due to its assertion that there were other “obvious” explanations for these abuses. As such, the factual evidence listed in the complaint was deemed insufficient. Beyond just recounting the abuse itself, the Court asserted that Mr. Iqbal needed to provide factual support that demonstrated the complicity of the offending officers. It is easy to see how this sort of requirement can quickly


stifle a Plaintiff. Tis decision now requires Plaintiffs not only to present detailed, often unavailable, factual evidence of a wrongdoing, but furthermore (when warranted) we must produce factual evidence demonstrating the frame of mind of the wrongdoer. And to further complicate matters, all of this must be done prior to the exchange of a single piece of discovery. It appears that while the Plaintiff ’s responsibilities in the litigation process have become increasingly burdensome, those of the Defendant have lightened to the point where the mere recognition of an obligation, or restriction, has become a task unto itself. Proponents of the Iqbal decision have argued that this case


merely clarifies, and only slightly heightens, the requirements of the pre-existing standard. Tese proponents have alleged that the jump from a standard of possibility to plausibility is not so great as to inhibit meritorious claims. However, the reality is that Defense attorneys throughout the country are filing countless motions to dismiss in Federal cases by alleging insufficiency of factual evidence in complaints. Remarkably, a search of Lexis shows that within the past six months, Iqbal has been cited 3,146 times. Tis is not to infer that all of the motions to dismiss by Defense counsel have been or will be successful, but it does demonstrate that this decision has


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