The New Rule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading

Rakesh Kilaru

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In 2007, the Court handed down its opinion in Bell Atlantic v. Twombly. The case set the civil procedure world abuzz; in addition to “retir[ing]” Conley v. Gibson’s famous “no set of facts” standard, Twombly introduced the concept of “plausibility” as the dividing line between complaints that do and do not state a claim. Scholars and courts alike divided on the case’s true meaning, and spilled a great deal of ink in attempting to discern what level of factual specificity was needed to satisfy “plausibility.” It was clear that the Court would soon have to re-enter the Rule 8 waters. Just two Terms later, the Supreme Court did just that in Ashcroft v. Iqbal. Initially viewed by some as a qualified immunity case, Iqbal ended up being decided on 12(b)(6) grounds. The Court concluded that Iqbal’s complaint–which alleged, among other things, that former Attorney General John Ashcroft and former FBI director Robert Mueller had created and implemented an unconstitutional detention policy–simply failed to state a claim. In so doing, the Court codified and clarified the idea of plausibility introduced in Twombly.

At first glance, Iqbal is different from Twombly in one obvious way: Justice Souter, the author of Twombly, penned the dissent in Iqbal, arguing that the majority misapplied Twombly’s articulation of the Rule 8 standard. But close examination of the opinions reveals that the opposite is true: Iqbal extends and codifies the rule and rationale of Twombly. In so doing, Iqbal, like Twombly, gives district court judges the most powerful case management tool of all—a broader authority to simply dismiss a case outright. And by taking the view that dismissal may well be the better part of prudence, both cases mark out a new era of pleading practice far less charitable to plaintiffs and rewrite several Court precedents on pleading and practice in the civil rights context.

I

The most controversial aspect of Twombly was the Court’s decision to “retire[]” Conley v. Gibson’s “no set of facts” language. Under Conley, courts at the 12(b)(6) stage merely took a quick look at the complaint to determine if the plaintiff could prove some set of facts entitling him to relief. But the Court viewed this standard as overly permissive, as it permitted a plaintiff to proceed to discovery on a frivolous claim so long as his pleadings did not foreclose the possibility of establishing some set of undisclosed facts to support recovery.

The Twombly Court replaced that standard with a new two-step method. Rather than merely taking a quick look at the complaint, district courts should first carefully examine the complaint to smoke out pure “legal conclusions” resting on the other “factual allegations.” After removing those legal conclusions, district courts should weigh the remaining facts and determine if they are sufficient to render the plaintiff’s claim plausible. Yet while that test sounds simple, it proved to be difficult to implement. Lower courts divided on two primary issues–what constituted a “legal conclusion,” and what level of factual specificity was needed to make a claim “plausible.” That confusion, in turn, led to Iqbal.

In a 5-4 opinion authored by Justice Kennedy, the Supreme Court elucidated the Twombly standard. The Court defined “legal conclusions” as “formulaic recitation[s] of the elements” of the plaintiff’s legal claim, and urged district courts to discard those allegations as conclusory. For example, in Iqbal, the Court dismissed Iqbal’s allegations that Ashcroft and Mueller “knew of, condoned, and willfully and maliciously agreed” to subject Iqbal to harsh conditions of confinement on account of his race, religious, and national origin; that Ashcroft had served as the “principal architect” of the policy, and that Mueller was “instrumental in adopting and executing” the policy. According to the Court, these allegations did little more than parrot back the elements of Iqbal’s case. And once they were removed from Iqbal’s complaint, the remaining allegations were as consistent with legal as with illegal conduct, meaning that Iqbal’s claims were not legally plausible.

In a moderately surprising twist, Justice Souter–the author of Twombly–dissented in Iqbal. In his view, the allegations dismissed by the majority as conclusory were anything but. Instead, viewed in light of the “subsidiary allegations” made elsewhere in the complaint, the allegations singled out as conclusory “are no such thing.” (In essence, Justice Souter echoed Justice Stevens’ dissent in Twombly, arguing that it was improper to view the allegations in the complaint severally rather than jointly.) Nevertheless, at the end of the day, Iqbal decisively rejected Justice Souter’s perspective. Now, pleading cases will no longer turn on the nature of the complaint as a whole. Instead, the key dispute going forward will be over which allegations to excise as “conclusory.”

II

On a practical level, Twombly and Iqbal establish a clear practice and procedure for evaluating a complaint. First, district judges must pore through the complaint for any allegations that appear “conclusory”—allegations that are “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.” In other words, judges should keep an eye out for allegations containing little more than elements of the legal claim at issue. Then, judges should weigh the remaining facts against the prevailing legal standard and determine if the claim crosses over the still-somewhat-muddy threshold of “plausibility.”

Phrased this way, the Twombly-Iqbal standard begins to look suspiciously like a heightened pleading standard–something the Court has formally rejected time and time again. Of course, in both Twombly and Iqbal, the Court disavowed heightened pleading standards–explicitly in the former, and implicitly in the latter. And in one sense, it is true that the Court has always rejected heightened pleading standards; after all, every time defendants have asked for a more detailed level of pleading in a specific category of cases, the Court has rejected their request, often unanimously.

In another sense, however, both Twombly and Iqbal do—and if their language is to be respected, must—impose a heightened pleading standard. While neither case raises the pleading requirement for one group of cases relative to others, both raise the pleading requirement across the board, at least relative to the Conley standard. Compared to Form 11 (an embodiment of Conley) both Twombly’s and Iqbal’s complaints state a claim. And while the Court labels those complaints as legally, rather than factually, deficient, the fact remains that more facts would have saved them both. Put differently, if Iqbal had evidence of discrete instances where Ashcroft and Mueller displayed an improper motive, and Twombly had more specific evidence of an actual agreement, both cases would have proceeded to discovery.

To be sure, the Court may well be right to adopt a heightened Rule 12(b)(6) standard; scholars both on and off the bench have explored the problems of class action and discovery abuse and called for such reform. To the extent there is a problem, it lies instead in the Court’s approach. As seen from the lower courts’ reaction to Twombly, the way in which pleading reform occurs makes a large difference in how clear and lasting it will be. Single-decision explications of a new pleading standard are necessarily confusing and incomplete, especially when the new standard is disguised as a mere extension of the old. And there are distinct advantages to legislative or administrative rulemaking versus judicial rulemaking, most importantly the ability to answer simultaneously many questions about the new rule rather than wait for individual cases to come forward and present new wrinkles–something the Court itself recently recognized in Mohawk v. Carpenter. In that sense, one can view the Court’s decision to ramp up the 12(b)(6) standard as a “legislative” act dressed up in “judicial” clothing.

III

It seems undeniable, if the flurry of recent proposed congressional “Iqbal reform legislation” means anything, that Iqbal has important ramifications for the future of Rule 8. Yet without saying so explicitly, Iqbal also dramatically shifts the Court’s jurisprudence on pleading in civil rights cases. In particular, Iqbal undermines at least two prominent civil rights precedents and makes it significantly harder for plaintiffs adequately to allege motive-based constitutional torts.      

First, it is hard to read Iqbal as doing anything other than calling into question, if not overruling, Crawford-El v. Britton. In Crawford-El, the Court declined to adopt a heightened pleading standard for motive-based constitutional torts, concluding that such sweeping changes should be made through the rulemaking process. While the Iqbal Court did not even mention Crawford-El, the result of the latter opinion seems squarely in the former’s sights. The labels are different—in Crawford-El, the Court rejected a “heightened pleading standard,” whereas in Iqbal, the Court rested on the language of “plausibility.” But the effects of those two approaches are precisely the same. For while it is easy to allege motive in a pleading, it is difficult if not impossible to prove it before discovery.

Similarly, Iqbal undermines the Court’s ruling in Pullman-Standard v. Swint, which held that the existence of discriminatory intent in civil rights cases is fundamentally a question of fact. After Swint, appellate courts had few tools at hand to set aside findings of discriminatory intent; mere disagreement with the findings would not suffice, and to the extent the district court failed to consider evidence, remand was the only viable option. So at bottom, Swint is a boon for plaintiffs who uncover strong evidence of discriminatory intent post-discovery, because it ensures that favorable district court findings of fact cannot be set aside lightly.

Prior to discovery, however, only the luckiest (which may, of course, make them the least fortunate) plaintiffs can amass any meaningful evidence of discriminatory intent. By imposing a fact-intensive standard at the 12(b)(6) stage, Iqbal threatens to prevent plaintiffs from accessing discovery in the first place, and thus threatens to render Swint a nullity. While Swint’s holding that discriminatory purpose is ultimately a factual finding may still stand, the number of cases that will get to the fact-finding process is undoubtedly now much smaller. For the plaintiff who, post-discovery, would have smoking-gun or solidly circumstantial evidence of discriminatory purpose, Swint is cold comfort—and Iqbal a lock on the courthouse door.

This “discovery paradox” is perhaps the most sweeping consequence of Twombly and Iqbal. Together, those two cases drop the bar to getting a motive-based tort suit dismissed much lower than it has ever been. And there is good reason to think that such dismissals will be anything but rare. Just as with agreements in the antitrust context, information about a defendant’s mental state is notoriously hard to come by, even with discovery. But, post-Iqbal, plaintiffs will not be able to get access to discovery at all. Civil rights plaintiffs alleging motive-based torts thus face a classic Catch-22: they cannot state a claim because they do not have access to documents or witnesses they believe exist; and they cannot get access to those documents or witnesses without stating a claim.

This result is especially striking since motive-based torts are often considered to be the worst kind of constitutional tort, and the kind most in need of deterrence. And it is in those cases where Twombly and Iqbal will have most heft. In situations where the plaintiff is in command of all the relevant information to make out a claim—for example, a constitutional tort alleging excessive force—Iqbal has little effect. The plaintiff will allege where she was, what she was doing, what the officer did, and that will likely be enough. But in motive-based cases, the plaintiff will not have—indeed cannot have—all the necessary information to file suit, because some of that information rests between the defendant’s ears. In these cases, Iqbal will likely often result in dismissal, because there will be little more backing up the plaintiff’s allegations of improper motive than his or her own suspicion or belief.

This result is not altogether surprising in the civil rights context. The Court has often preferred to throw out meritorious claims to scrub dockets of frivolous ones, rather than permit more claims to proceed in the hopes that all meritorious ones will make their way to judgment. But the Court’s efforts here have been particularly clandestine; in addition to its subtle creation of a discovery Catch-22, the Court has overruled or undermined precedents like Crawford-El and Swint in function without so much as the “eulogy” that Justice Stevens penned for Conley.

IV

As law students learn early in their legal education, there is no such thing as a “pure civil procedure case.” Every civil procedure case arises out of some body of substantive law, be it antitrust, constitutional tort, or something else entirely. Every civil procedure case, then, brings with it a temptation to cabin the case as “belonging” to the relevant area of substantive law. For example, in the aftermath of Twombly, some scholars argued that the decision only applied to antitrust cases, or to complex, “big” suits. And the same temptation may exist with Iqbal: the temptation to view it as a Bivens case, a civil rights case, or a case involving high-level officials—and as limited to that context.

Read fairly, though, Iqbal, like Twombly, is fundamentally a Rule 8 decision, meaning that its effects reach beyond the factual confines of the case. As a result, all of Twombly and Iqbal’s innovations—from the embrace of heightened pleading, to the new two-step plausibility process, to the crucial distinction between issues of fact and law—are transsubstantive. And while this piece has argued that those innovations have great weight in the civil rights context, it would be naïve to argue that they are limited to that—or any—context. In just a few short months, Twombly became a darling of the defense bar, and one of the most frequently cited cases in U.S. courts. There is little reason to think Iqbal will be any different.

Acknowledgments:

Copyright © 2010 Stanford Law Review.

Rakesh Kilaru is a J.D. Candidate at Stanford Law School in the Class of 2010.

This Legal Workshop Editorial is based on the following Law Review Note: Rakesh Kilaru, Note, The New Rule 12(b)(6):  Twombly, Iqbal, and the Paradox of Pleading, 62 STAN L. REV. 905 (2010).


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