Archive for the ‘Bell Atlantic Corp. v. Twombly’ Category

Joe S. Cecil et al., “”Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules”

July 20, 2011

Joe S. Cecil (Federal Judicial Center), George W. Cort, Margaret S. Williams (Federal Judicial Center) and Jared J. Bataillon have posted “Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules”. Here is the abstract:

This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. The study compared motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.

After excluding cases filed by prisoners and pro se parties, and after controlling for differences in motion activity across federal district courts and across types of cases and for the presence of an amended complaint, we found the following: There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A); In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1); Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then; There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).

A .pdf copy of the article is available for download from SSRN here.

Henry S. Noyes, “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience”

June 9, 2011

Henry S. Noyes (Chapman University – School of Law) has posted  “The Rise of the Common Law of Federal Pleading: Iqbal, Twombly and the Application of Judicial Experience”, Villanova Law Review, Forthcoming/ Chapman University Law Research Paper No. 11-20. The abstract reads:

With its decisions in Twombly and Iqbal, the Supreme Court established a new federal pleading standard: a complaint must state a plausible claim for relief. Many commentators have written about the meaning of plausibility. None has focused on the Court’s statement that “[d]etermining whether a complaint states a plausible claim for relief…will be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” In this article, I make and support several claims about the meaning and application of judicial experience. First, in order to understand and define the plausibility standard, one must understand the meaning and application of judicial experience. The requirement that district courts apply judicial experience to resolve a motion to dismiss is a new part of the federal pleading regime, just like the new plausibility standard. Second, the application of judicial experience – as intended by the Supreme Court – requires district courts to consider information and evidence beyond that alleged in the complaint when resolving a motion to dismiss. Third, and contrary to conventional wisdom, the Supreme Court does not intend the application of judicial experience to involve a subjective analysis of the plausibility of a claim. Instead, the Supreme Court intends district courts to consider a larger, objective body of experience – beyond the subjective experience of any particular district court – with similar factual scenarios. Fourth, the Supreme Court anticipates that the application of judicial experience will require district courts to develop a common law of pleading standards that will vary with the type of claim, the type of claimant, the type of defendant and the alleged factual scenario. The Court has expressly denied that plausibility “require[s] heightened fact pleading of specifics,” but what plausibility means is informed by judicial experience. Sometimes plausibility requires more convincing facts (not more specific facts). Finally, I argue that this new pleading regime that requires the application of judicial experience at the pleading stage – even where it is based on objective information – is inappropriate and inconsistent with the adversarial nature of litigation.

A copy of the article is available for download at SSRN here.

Dustin B. Benham, “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”

May 5, 2011
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Dustin B. Benham (Texas Tech University School of Law) has published “Twombly and Iqbal Should (Finally!) Put the Distinction Between Intrinsic and Extrinsic Fraud Out of Its Misery”, SMU Law Rev., Vol. 64, 2011.

The abstract reads:

The proliferation of digital evidence and discovery has raised serious questions about litigation fraud in recent years. Legal tabloids are often headlined with the latest example of discovery abuse that resulted in multi-million dollar sanctions. But what about the cases of serious discovery abuse or perjury that neither the opposing party nor the court ever catch? These abuses may very well lead to judgments that do not reflect a result based on the true merits of the case. If a party seeks relief based on fraud within one year from the entry of judgment, Federal Rule of Civil Procedure 60(b) gives the trial court plenary power to vacate the judgment. For fraud discovered outside of one year, however, the district court’s powers are more limited, and relief is often contingent upon whether the fraud is deemed intrinsic or extrinsic. Indeed, a majority of the circuits hold that after one year a party cannot obtain post-judgment relief based on perjury or discovery abuse because these frauds are intrinsic. This article contends that the distinction between intrinsic and extrinsic fraud should be abolished because Twombly and Iqbal have created an effective pleading-stage screening mechanism to prevent the meritless re-litigation of cases.

This article proceeds in five parts. Part II examines the origins and history of modern post-judgment relief before and after the adoption of Rule 60. Next, Part III explores the distinction between intrinsic and extrinsic fraud in the context of independent actions. Part IV of this article addresses the rise of plausibility pleading in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. In these cases, the Supreme Court overruled Conley v. Gibson, announcing a new pleading paradigm that applies to all civil actions filed in federal court, including a judgment-relief action. In a move away from notice-pleading, the Court held that a civil complaint must plausibly allege a cause of action. Finally, Part V of this article contends that this increased pleading scrutiny serves as a better screening mechanism for post-judgment fraud claims than the distinction between intrinsic and extrinsic fraud does. By screening fraud claims individually, a court can better assess whether the claim could have been raised in the original litigation. Screening cases for this trait results in a better balance between the often-competing values of judgments that reflect truth and judgments that are final.

(Number of Pages in PDF File: 59)

The article may be downloaded via SSRN here.


Joseph Seiner on “Twombly, Iqbal, and the Affirmative Defense”

December 14, 2010

Joseph Seiner (University of South Carolina School of Law) has a new post on SSRN entitled: “Twombly, Iqbal, and the Affirmative Defense“. The abstract reads:

In Twombly v. Bell Atlantic Corp., 550 U.S. 644 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Supreme Court announced a new plausibility standard for a plaintiff’s allegations. The decisions may have even broader implications, however, as many federal district courts have already applied this pleading standard to a defendant’s affirmative defenses. This Article attempts – for the first time in the legal literature – to make sense of Twombly and Iqbal in the context of the affirmative defense.

This Article addresses the two possible readings of Twombly and Iqbal for a defendant’s responsive pleadings. The first reading is a narrow case-specific approach, and concludes that the decisions are inapplicable to defendants and must be limited to a plaintiff’s civil complaint. The second approach is much broader, and concludes that a defendant must comply with the Supreme Court’s plausibility standard by pleading enough facts to sufficiently state an affirmative defense. This Article explains why a close textual review of the Federal Rules of Civil Procedure, combined with numerous policy and practical considerations, support the broader second reading of Twombly and Iqbal for affirmative defenses.

What it actually means to plausibly plead a defense is a much more complicated question. This paper closely examines this issue through the lens of one of the most complex and important defenses in all civil case law – the affirmative defense to a claim of sexual harassment. By way of this example, this Article explains how the plausibility standard would apply more broadly to defendants in all civil cases. This Article does not attempt to answer the normative question of whether the plausibility standard was properly established by the Supreme Court. Instead, this Article assumes the validity of the Court’s approach, and describes what this standard would look like if applied to the affirmative defense. The question of whether the plausibility standard should apply to defendants – and if so how it should apply – is likely to create significant controversy in the coming years. This paper establishes a foundation for that debate, and fills the current void in the academic scholarship on this issue.

Bradley Scott Shannon says "I Have Federal Pleading All Figured Out"

August 17, 2010
Bradley Scott Shannon (Florida Coastal School of Law) in an ironically titled paper “I Have Federal Pleading All Figured OutCase Western Reserve Law Review, forthcoming, discusses pleading standards in the wake of the U.S. Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal. Here is the abstract: 
Actually (and to no one’s surprise), I do not have federal pleading all figured out. But federal civil pleading is the topic of this draft article. The article considers various aspects of federal pleading under the Federal Rules of Civil Procedure and following the Supreme Court’s decisions in Twombly and Iqbal in terms of what appear to be the three major types of pleading defects: factual insufficiency, legal insufficiency, and insufficiency of proof. The article also considers the problems posed by frivolous complaints and the divergence of federal and state pleading standards. Along the way, the article reaches a number of provocative and somewhat unconventional conclusions. I look forward to receiving your comments.

The Supreme Court’s recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, both of which deal with federal civil pleading standards, are important, but misunderstood. This Article hopes to ease some of the confusion and place these decisions in a proper perspective. Viewed in terms of the two primary ways in which an action may be dismissed for failure to state a claim upon which relief can be granted—factual insufficiency and legal insufficiency—coupled with an understanding of a plaintiff’s obligations under Federal Rule of Civil Procedure 11, these decisions arguably have resulted in little practical change in the overall federal pleading scheme. What these decisions have done, though, is brought renewed attention to the requirement that a plaintiff’s allegations be supported by evidence, and the problems caused thereby. But this Article argues that concerns regarding a plaintiff’s insufficiency of proof should be resolved not through Federal Rule of Civil Procedure 8 and the requirement that a plaintiff “show” that it is entitled to relief—as the Supreme Court appears to have done—but rather through Rule 11. This Article also argues that a federal court action dismissed for failure to state a claim because of insufficiency of proof should not be given claim preclusive effect in those state courts with less stringent pleading standards.

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