Wednesday, October 28, 2009

National Law Journal on Congressional Hearing to Discuss Iqbal

David Ingram, Supreme Court's 'Iqbal' Ruling to Get Congressional Hearing, The National Law Journal, Oct. 26, 2009

Tuesday, October 27, 2009

Eleventh Circuit Denies Officers' Qualified Immunity Claims

The Eleventh Circuit has upheld a district court's denial of summary judgment based on qualified immunity in a case against two police officers alleged to have Tasered a man to death. The opinion is available at

Wednesday, October 14, 2009

Prof. Hatamyar Posts Article on Twombly and Iqbal on SSRN

Professor Patricia W. Hatamyar (St. Thomas) recently posted an Article entitled The Tao of Pleading: Do Twombly and Iqbal Matter Empirically? on SSRN. Here is the Abstract:

This article is an empirical study of the effect of Bell Atlantic Corp. vs. Twombly, 550 U.S. 544 (2007), and Ashcroft vs. Iqbal, 129 S. Ct. 1937 (2009), two recent Supreme Court cases that portend the decline of “notice pleading” in federal civil practice.

The article analyzes how Twombly and Iqbal have begun to dismantle the regime of notice pleading by not only discarding the “no set of facts” standard of Conley vs. Gibson, 355 U.S. 41 (1957), but by changing or ignoring other principles that federal courts have followed for decades on 12(b)(6) motions. The statistical study then examines how Twombly and Iqbal may have affected federal district court rulings on 12(b)(6) motions in practice.

The statistical analysis of 1,039 cases shows that 49% of 12(b)(6) motions were granted (with or without leave to amend) in the cases selected (from May 2005 to August 2009). Further, the rate of granting such motions increased from 46% of motions decided under Conley, to 48% of motions decided under Twombly, to 56% of motions decided under Iqbal. A multinomial logistic regression indicates that under Twombly/Iqbal, the odds of a 12(b)(6) motion being granted rather than denied are 1.5 times greater than under Conley, holding all other variables constant.

Moreover, the largest category of cases in which 12(b)(6) motions are filed was constitutional civil rights. Motions to dismiss in constitutional civil rights cases were granted at a higher rate (53%) than in cases overall (49%), and the rate of granting 12(b)(6) motions in constitutional civil rights cases increased in the cases selected from Conley (50%) to Twombly (55%) to Iqbal (60%).

The article concludes that Twombly and Iqbal have resulted in a noticeable increase in the granting of 12(b)(6) motions by district courts, and suggests that such a result, if desirable, should be accomplished by the normal rule-amendment process.

This Article may be downloaded by visiting

Tuesday, October 13, 2009

SCOTUS Grants Cert. In Complete Preemption and Federal Officer Removal Case

The Supreme Court has granted cert. in Health Care Service Corporation v. Pollitt (No. 09-38). The decision below is at 558 F.3d 615 (7th Cir. 2009). The questions presented are:

(1) Does the Federal Employee Health Benefits Act, 5 U.S.C. §§ 8901-14, completely preempt--and therefore make removable to federal court--a state suit challenging enrollment and health benefits determinations that are subject to the exclusively federal remedial scheme established in FEHBA?

(2) Does the federal officer removal statute, 28 U.S.C. § 1442 (a)(1), which authorizes federal removal jurisdiction over state court suits brought against persons "acting under" a federal officer when sued for actions "under color of [federal] ... office," encompass a suit against a government contractor administering a FEHBA plan, when the contractor is sued for actions taken pursuant to the government contract?

More details at:

Friday, October 09, 2009

Call to Submit Conference Information to the AALS Civil Procedure Section

Each year the Civil Procedure Section of the AALS prepares a newsletter that aggregates various bits of information for the benefit of Civil Procedure teachers and scholars. One regular feature of that newsletter is “Upcoming Conferences.” If you have planned (or are otherwise aware of) a conference for calendar year 2010 and would like this newsletter to list the event, please send us the details—web links, calls for papers, etc. Even conferences with tentative plans and dates can be listed. Please send the details by November 1 to Thom Main at

Tuesday, October 06, 2009

Prof. Strong Posts Article on Jurisdictional Discovery

Professor S.I. Strong (Missouri) has recently posted an Article entitled Jurisdictional Discovery in United States Federal Courts on SSRN. Here is the Abstract:

Jurisdictional discovery ties together three principles central to federal civil procedure: the right to broad discovery, the need for liberal notice pleading and the court’s inherent power to determine its own jurisdiction. The device is also inextricably linked to complex constitutional and legislative policies regarding the jurisdictional reach of U.S. federal courts. The complicated and often hidden aspects of jurisdictional discovery make analysis difficult, and measures that may seem acceptable in theory turn out to be highly problematic in practice. Indeed, the concept of “limited jurisdictional discovery” has disappeared as plaintiffs request - and judges routinely permit - extensive and expensive discovery before defendants are even determined to be properly in front of the court.

The Article begins with a discussion of the historical development and jurisprudential bases for jurisdictional discovery, then analyzes the two major structural problems with the device, namely (1) the lack of any identifiable standard regarding when jurisdictional discovery will be ordered and (2) the absence of any understanding about the proper scope of such discovery. Next, the Article describes the root causes of these structural inadequacies and proposes several ways to address the root concerns, relying on a new line of Supreme Court precedent (including Ashcroft v. Iqbal) as well as analogies to other common law jurisdictions. The paper concludes by outlining several judicial and legislative reforms that would improve the means by which U.S. federal courts establish jurisdiction.

Although jurisdictional discovery is occasionally discussed in limited, subject-specific contexts, the device has not been subject to a comprehensive, in-depth analysis since the 1970s, which means that this Article fills a major gap in the literature. Furthermore, the piece is particularly timely given several recent petitions for certiorari to resolve ambiguities and circuit splits in this area of law as well as recent Supreme Court precedents regarding pleadings standards and the absence of jurisdictional hierarchies.

This Article may be downloaded by visiting