Monday, September 28, 2009

Prof. Bone Posts Essay on Iqbal on SSRN

Professor Bone recently posted an Essay entitled Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal on SSRN. Here is the Abstract:

This Essay critically examines the Supreme Court’s most recent decision on Rule 8(a)(2) pleading standards, Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009), decided in May 2009. The essay supplements and extends the analysis in my recent article, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 874 (2009), which examined the Supreme Court’s seminal Bell Atlantic Corp. v. Twombly decision and evaluated the costs and benefits of screening meritless suits at the pleading stage. In this essay, I argue that Iqbal does much more than clarify and reinforce key points in Twombly; it takes Twombly’s plausibility standard in a new and ultimately ill-advised direction. My criticism has two parts. First, Iqbal adopts a 'two-pronged approach' that filters legal conclusions in the first prong before applying the plausibility standard to factual allegations in the second. I argue that this two-pronged approach is incoherent. There is only one prong: the judge must determine whether the complaint, interpreted as a coherent whole, plausibly supports each element of the legal claim. The second problem with Iqbal runs deeper. Iqbal screens lawsuits more aggressively than Twombly, and does so without adequate consideration of the policy stakes. In particular, Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits. The thick screening model is highly problematic on policy grounds, even in cases like Iqbal that involve qualified immunity. Moreover, the Supreme Court is not institutionally well-equipped to decide whether strict pleading is desirable, especially when it implements a thick screening model. Those decisions should be made through the formal Rules Enabling Act process or by Congress.

This Article can be downloaded by visiting

Friday, September 25, 2009

Prof. Hartnett Posts Article on Twombly

Professor Edward Hartnett has recently posted an Article entitled Taming Twombly on SSRN. Here is the Abstract:

In Bell Atlantic v. Twombly, the Supreme Court held that an antitrust complaint alleging that major telecommunication providers engaged in parallel conduct unfavorable to competition could not survive a 12(b)(6) motion to dismiss, even though the complaint expressly alleged a conspiracy. The Court insisted that a complaint contain 'enough facts to state a claim to relief that is plausible on its face,' and concluded that a conspiracy, while 'conceivable' was not 'plausible.' In addition, the Court retired the famous language from Conley v. Gibson that 'a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Scholarly reaction to Twombly has been largely critical, complaining that the Court imposed a heightened specificity standard of pleading and that plaintiffs will lack the evidence to plead these specifics prior to discovery. Some suggested that Twombly’s requirement of plausibility should be understood as an aspect of substantive antitrust law, thereby limiting the impact of the decision largely to antitrust cases. Others suggested that Twombly should be limited to large, complex, sprawling cases, given the Court’s evident concern with the cost of discovery in such cases. These hopes of limiting Twombly were dashed by the Supreme Court’s decision in Ashcroft v. Iqbal, which held that the Twombly framework applies to all civil actions. Faced with the failure of the attempt to limit Twombly, some have called for a legislative restoration of Conley v. Gibson. This article takes a different tack. Rather than decrying Twombly as a radical departure and seeking to overturn it, this article instead emphasizes Twombly’s connection to prior law and suggests ways in which it can be tamed. First, the plausibility standard of Twombly can be understood as equivalent to the traditional insistence that a factual inference be reasonable. Second, the Twombly framework can be treated as an invitation to present information and argument designed to dislodge a judge’s baseline assumptions about what is natural. Third, and despite widespread assumption to the contrary, discovery can proceed during the pendency of a Twombly motion. This paper also suggests that the traditional practice of pleading 'on information and belief' be retired, and connects a tamed Twombly to broader trends toward managerial and discretionary judging.

This Article may be downloaded at

Tuesday, September 22, 2009 Iqbal Update

An article entitled Plaintiffs Groups Mount Effort to Undo Supreme Court's 'Iqbal' Ruling by Tony Mauro is available on It provides an update on the fallout of the Ashcroft v. Iqbal pleading decision from earlier this year. Click here for the story.

Sunday, September 20, 2009

Judicial Conference Approves Proposed Amendments

On September 15, 2009, the Judicial Conference met and approved the recommendations of the Committee on Rules of Practice and Procedure and approved the following proposed rules and forms amendments and new rules:

•Appellate Rules 1, 4, and 29, and Form 4;
• Bankruptcy Rules 1007, 1014, 1015, 1018, 1019, 4001, 4004, 5009, 7001, 9001 and new Rule 5012, and Exhibit D of Official Form 1 and Official Form 23;
• Civil Rules 8, 26, and 56, and Illustrative Form 52;
• Criminal Rules 12.3, 15, 21, and 32.1; and
• Evidence Rule 804.
The Judicial Conference also approved the proposed Guidelines for Distinguishing Between Matters Appropriate for Standing Orders and Matters Appropriate for Local Rules and for Posting Standing Orders on a Court’s Web Site and their transmission to the courts.

The proposed amendments — with the exception of the Bankruptcy Official Forms — will be transmitted to the Supreme Court with a recommendation that they be approved and transmitted to Congress in accordance with the Rules Enabling Act. The revisions to Exhibit D of Official Form 1 and to Official Form 23 will take effect on December 1, 2009, in accordance with Bankruptcy Rule 9009.

The Committee’s report and appendices containing the proposed amendments may be accessed by clicking on this link, The report and appendices may also be found on this page,

Wednesday, September 16, 2009

W.D. Va. Applies Twombly to Dismiss Complaint in Slip-and-Fall Case

Per Branham v. Dolgencorp., Inc., CIVIL NO. 6:09-CV-00037 (August 2009):

The Defendant argues that the Plaintiff has failed to allege sufficient facts to allow the Court to draw the reasonable inference that the Defendant is liable in this case. For example, the Defendant argues that the Complaint lacks any allegation of how the Plaintiff slipped and fell, any allegation of the nature of the liquid on the floor of the store, any allegation that the liquid caused the Plaintiff’s fall, and any specific allegations regarding the injuries she suffered as a result of the fall. Therefore, the Defendant argues, the Complaint fails to include factual allegations relating to various elements of the Plaintiff’s claim of negligence.

. . .

In this case, the Plaintiff has failed to allege any facts that show how the liquid came to be on the floor, whether the Defendant knew or should have known of the presence of the liquid, or how the Plaintiff’s accident occurred. Without such allegations, the Plaintiff cannot show that she has a “right to relief above the speculative level.” Twombly, 550 U.S. at 555. While consistent with the possibility of the Defendant’s liability, the Plaintiff’s conclusory allegations
that the Defendant was negligent because there was liquid on the flood, but that the Defendant failed to remove the liquid or warn her of its presence are insufficient to state a plausible claim for relief. See id. at 570.

Tuesday, September 15, 2009

Iqbal Symposium at Penn State

Nancy Welsh (nxw10@DSL.PSU.EDU) of Penn State, Dickinson School of Law has announced the following conference:

On Friday, March 26, 2010, Penn State will hold a symposium addressingthe Supreme Court's recent decision in Ashcroft v. Iqbal. There will bethree panels:

One panel will address Iqbal's implications for the role of thecourts and judges in providing American society with both theopportunity for redress of harms and a common law-based approach to thedevelopment of law.

A second panel will explore the majority's reference to purposeful discrimination and what it signals about contemporary understandings of race in America.

The third panel will examine Iqbal's implications for Section 1983, including the decision's potential impact on supervisory liability, qualified immunity and the behavior of agency officials operating under adverse conditions.

At this point, presenters include Jeff Rachlinski (Cornell), Natsu Saito (Georgia State), Mark Brown (Capital), and several members of PennState's faculty: Victor Romero, Kit Kinports, Gary Gildin, Shoba Wadhia, Ray Campbell, and myself. The slate of presenters is likely to expand.Papers will be published in a symposium issue of the Penn State Law Review. The symposium will be held at Penn State's Carlisle,Pennsylvania, facility. Students, faculty and guests in the University Park facility also will be able to participate (and engage in one-on-onesidebar discussions) through the pervasive and advanced system ofvideoconferencing that links both locations in our unitary law schooloperation.

We would welcome your attendance.

Saturday, September 12, 2009

Visit the Rennovated Civil Procedure & Federal Courts Blog

Persons interested in civil procedure should definitely check out the rennovated Civil Procedure & Federal Courts Blog over at the Law Professor Blogs Network for continuing coverage of civil procedure and federal courts issues.

Wednesday, September 09, 2009

Ninth Circuit Finds Complaint against Ashcroft to Be Sufficiently Pleaded under Iqbal

Per Al-Kidd v. Ashcroft, --- F.3d ----, 2009 WL 2836448 (9th Cir. Sept. 4, 2009):

Here, unlike Iqbal's allegations, al-Kidd's complaint “plausibly suggest[s]” unlawful conduct, and does more than contain bare allegations of an impermissible policy. Id. at 1950. While the complaint similarly alleges that Ashcroft is the “principal architect” of the policy, the complaint in this case contains specific statements that Ashcroft himself made regarding the post-September 11th use of the material witness statute. Ashcroft stated that enhanced tactics, such as the use of the material witness statute, “form one part of the department's concentrated strategy to prevent terrorist attacks by taking suspected terrorists off the street,” and that “[a]ggressive detention of lawbreakers and material witnesses is vital to preventing, disrupting or delaying new attacks.” Other top DOJ officials candidly admitted that the material witness statute was viewed as an important “investigative tool” where they could obtain “evidence” about the witness. The complaint also contains reference to congressional testimony from FBI Director Mueller, stating that al-Kidd's arrest was one of the government's anti-terrorism successes-without any caveat that al-Kidd was arrested only as a witness. Comparatively, Iqbal's complaint contained no factual allegations detailing statements made by Muller and Ashcroft regarding discrimination. The specific allegations in al-Kidd's complaint plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.