Article of Interest

Pleading Requirements and Surviving Rule 12(b)(6)

April 13,2010

The federal pleading standards have undergone major changes in the last three years. Until recently, courts analyzing the sufficiency of a plaintiff's complaint relied on a “conceivability” standard – was the plaintiff's claim conceivable under any set of facts? In the last three years, the standard has shifted to one of “plausibility.” This new standard asks courts to look only at the face of the complaint to determine whether it sets out adequate facts to establish a plausible right to relief.

The starting place for analyzing pleadings is always Rule 8 of the Federal Rules of Civil Procedure. Rule 8 requires merely a “short and plain statement of the claim showing that the pleader is entitled to relief.” This low and arguably vague threshold was ripe for judicial interpretation and explanation.

The Supreme Court's first attempt at clarifying when a pleading satisfies Rule 8 was in Conley v. Gibson . 1In the 1957 case, the Supreme Court held that a complaint should only be dismissed if there is “no set of facts” under which the plaintiff could succeed on his claim. 2Under this “no set of facts” or “conceivability” standard, it was nearly impossible for defendants to prove that a plaintiff's claims were meritless in a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure. The result was that defendants were forced to engage in the litigation and pay their counsel to conduct at least some discovery before the case could be dismissed.

Conley's conceivability standard stood for fifty years, until it was abrogated by the Supreme Court's decision in Bell Atlantic Corporation v. Twombley. 3The plaintiffs in Twombley were a putative class of subscribers of telephone and internet service. The plaintiffs alleged that the defendants had conspired to prevent competing local telephone companies from entering the market. The plaintiffs relied on the defendants' “compelling motivation” to keep local companies out of the market, and inferred agreements among the defendants not to compete with each other. These alleged agreements were inferred from the defendants' failure to pursue markets controlled by other defendants.

The Supreme Court determined that the plaintiffs' claims were mere legal conclusions unsupported by factual allegations, and thus affirmed dismissal of the case. In doing so, the Supreme Court expressly rejected Conley 's “conceivability” or “no set of facts” standard. 4Instead, the Supreme Court implemented a “plausibility” standard. Twombley's new standard asks for enough factual matter to raise a reasonable expectation that discovery will reveal evidence of the elements of the claim. 5In other words, the complaint must allege more than the mere possibility of misconduct to survive a motion to dismiss.

However, questions remained following the Supreme Court's decision in Twombley. The Twombley Court granted certiorari to address the proper standard for pleading an antitrust conspiracy through parallel conduct. What would the role of the opinion be in cases alleging other claims?

Last year, the Supreme Court issued the opinion in Ashcroft v. Iqbal, clarifying that the Twombley standard applies to all cases filed in federal district court. 6Iqbal was a Muslim Pakistani who was arrested on charges of fraud and conspiracy after the terrorist attack on September 11, 2001. He pled guilty to the charges and was deported to Pakistan. Then, he filed a civil complaint against numerous federal officials, including then Attorney General John Ashcroft, alleging that they violated his constitutional rights while he was detained.

Significantly, the Iqbal Court determined that it was not bound to accept “legal conclusions” as true in evaluating the sufficiency of a pleading. 7The Iqbal opinion establishes a two-part approach to measuring the adequacy of pleadings. First, the reviewing court should isolate only the well-pleaded, non-conclusory factual allegations that are entitled to a presumption of truth. 8Then, considering only the well-pleaded facts and assuming their truth, the court should determine whether those facts give rise to a plausible entitlement to relief. 9A complaint will survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure only when the facts pleaded move the claim “across the line from conceivable to plausible.” 10Applying this framework, the Supreme Court determined that Iqbal's claims were properly dismissed for failure to state a claim for relief.

The Iqbal plausibility standard is a major departure from Conley's “no set of facts” standard, and should result in a great increase in the care plaintiffs take in framing their complaints, and also in the time and effort defendants will invest into critiquing plaintiffs' pleadings. The Supreme Court insists that it has not applied a “‘heightened' pleading standard” or “broaden[ed] the scope” of the Federal Rules of Civil Procedure. 11Commentators, on the other hand, insist that it takes more to survive a Rule 12(b)(6) attack today than it did just two years ago: “ Iqbal and Twombly together have the potential to dramatically impair civil plaintiffs' ability to survive a motion to dismiss in all substantive areas. . . . [T]hese newly articulated pleading standards will [be] an obstacle to asserting civil claims in federal court.” 12


1Conley v. Gibson , 355 U.S. 41 (1957).

2Id. at 45-46.

3Bell Atl. Corp. v. Twombley , 550 U.S. 544 (2007).

4Id. at 562-563

5Id. at 556.

6 129 S. Ct. 1937 (2009).

7Id. at 1949.

8Id. at 1950.

9Id .

10Id. at 1952 ( citing Twombley , 550 U.S. at 570).

11Twombly , 550 U.S. at 569 n.14.

12 Kendyl Hanks, Kate David, & Stacy Nathanson, Our Mini-Theme: Corporate and Business Litigation, Supreme Court Update, Decisions from 2009 , 19 Bus. L. Today 43, 46 (Oct. 2009).

By Melissa L. Celeste