Much Ado about Twombly

37 Pages·2014·2.06 MB·English

by  Kendall W. Hannon

Notre Dame Law Review
Volume 83
Issue 4Symposium: Separation of Powers as a Article 12
Safeguard of Federalism
5-1-2008
Much Ado about Twombly - A Study on the
Impact of Bell Atlantic Corp. v. Twombly on
12(b)(6) Motions
Kendall W. Hannon
Follow this and additional works at:http://scholarship.law.nd.edu/ndlr
Recommended Citation
Kendall W. Hannon,Much Ado about Twombly - A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83Notre
Dame L. Rev.1811 (2008).
Available at:http://scholarship.law.nd.edu/ndlr/vol83/iss4/12
This Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an
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MUCH ADO ABOUT TWOMBLY? A STUDY ON THE
IMPACT OF BELL ATLANTIC CORP. V.
TWOMBLY ON 12(b) (6) MOTIONS
Kendall W. Hannon*
[E]very man who is injured will be sure to find a method of relief,
exactly adapted to his own case, described in the compass of a few
lines ....
t
-William Blackstone
I fear that every age must learn its lesson that special pleading can-
not be made to do the service of trial and that live issues between
active litigants are not to be disposed of or evaded on the paper
pleadings ....
-Judge Charles E. Clark2
INTRODUCTION
Serving as the gate through which all disputes must pass, plead-
ings are fundamental to the operation of the federal judiciary. The
standards that federal courts employ to evaluate the sufficiency of
these pleadings can frame issues, control access to the promised land
of liberal discovery, and shape settlement proceedings. Thus, when
the United States Supreme Court recently spoke on this issue in the
* Candidate for Juris Doctor, Notre Dame Law School, 2009; B.A., Arabic and
Political Science, University of Notre Dame, 2006. I would like to thank ProfessorJay
Tidmarsh for his tireless assistance and encouragement throughout this project as
well as Dean Margaret Brinig for her assistance with crafting the appropriate statistical
analysis. I would also like to thank my wife, Kristin Hannon for her patience and
support.
I WILLIAM BLACKSTONE, 3 COMMENTARIES *184. This is an example of Blackstone
"marveling at the perfection of the common law writs." Fred T. Hanson, The Secured
Creditor's Share of an Insolvent Estate, 34 MICH. L. REv. 309, 329 (1936).
2 CHARLES E. CLARK, Special Pleading in the "Big Case"?, 21 F.R.D. 45, 46 (1957),
reprinted in PROCEDURE, THE HANDMAID OFJUSTICE 147-48 (Charles A. Wright & Harry
M. Reasoner eds., 1965).
1812 NOTRE DAME LAW REVIEW [VOL. 83:4
case of Bell Atlantic Corp. v. Twombly,3 the American bar rightfully took
notice.
Twombly is the latest chapter in an evolving American pleading
system. At its early common law stage, pleading in the United States
was formalistic to the point of "subordinat[ing] substance to form."4
An individual desiring to bring a suit had to decide upon, and state by
writ, the "properf orm of action."'5 The forms of action required particu-
lar acts to be alleged, often in specific phraseology; failure to comply
was an "incurable defect."6 This pleading system proved unable to
support a growing field of substantive law and rights. Expanding sub-
stantive law combined with a stagnant pleading system caused the
pleadings to take on a character detached from the realities of the
case.7 The ultimate result at common law was a complex, verbose,
and convoluted pleading that did not make clear what, exactly, the
suit was predicated on.8
In the face of such realities the state legislatures felt compelled to
take action. Beginning with New York's "Field Code" (named after its
creator David Dudley Field), legislatures did away with the formalism
that had come to characterize common law pleading and replaced it
with a system of code pleading.9 By requiring that pleadings merely
disclose the material facts of a dispute, the drafters hoped the Code
3 127 S. Ct. 1955 (2007).
4 CHARLES M. HEPBURN, THE HISTORICAL DEVELOPMENT OF CODE PLEADING IN
AMERICA AND ENGLAND 31 (Cincinnati, Ohio, W.H. Anderson & Co. 1897).
5 1 JOSEPH CHIyrv, A TREATISE ON PLEADING AND PARTIES TO AcTIONS 94 (Spring-
field, Mass., G. & C. Merriam 15th American ed. 1874).
6 See, e.g., JAMES GOULD, A TREATISE ON THE PRINCIPLES OF PLEADING IN CIVIL
AcIONS 174 (Albany, William Gould, Jr., & Co. 5th ed. 1887) (describing how, to
bring a suit for a forcible injury, the complaint had to allege that "the wrongful act
[was] committed 'with force and arms,' and 'against the peace"').
7 See HEPBURN, supra note 4, at 20 ("The existing remedies became inadequate
for the proper administration of primary rights .... "). Attempting to shoehorn
"new" law into the "old" pleading structure, attorneys and courts began to rely largely
on "legal fiction[s]" that produced pleadings that bore little resemblance to the
actual dispute. See id. at 25.
8 See id. at 58; see also FLEMING JAMES, JR. ET AL., CIVIL PROCEDURE § 3.3, at 185
(5th ed. 2001) (stating that "wholly fictional recitals prefaced the real punch line" and
that "[i] n many situations.., there was often little or no correspondence between the
facts alleged and those that appeared at trial").
9 SeeJAMES ET AL., supra note 8, § 3.5, at 186. The changes wrought by the Field
Code included an abolition of distinctions between suits in equity and law and the
"substitution of concise and plain statements of the substantive facts of a case for the
technical and verbose pleadings of the older systems." HEPBURN, supra note 4, at 92.
20o8] MUCH ADO ABOUT TWOMBLY 1813
would serve the end of reaching just determinations on the merits.'0
Pleadings under the early codes required that only "material operative
facts" be pleaded; conclusions of law and "evidential facts" were not to
be included." Unfortunately, making these distinctions proved diffi-
cult, and a "whole new corpus of legal technicality at the pleading
stage" developed. ' 2
The Federal Rules of Civil Procedure, largely drafted by (future
federal judge) Charles Clark in the 1930s, instituted the concept of
notice pleading throughout the federal judicial system.13 Among the
Federal Rules is Rule 8(a) (2), which defines some of the requirements
of a complaint. It states that the pleader must provide a "short and
plain statement of the claim showing that the pleader is entitled to
relief."' 4 Rule 8 was designed both to move away from the "semantic
quibbling" that existed under code pleading systems and to ease the
pleader's burden.'5 In one of its earliest evaluations of Rule 8's
requirements, the Supreme Court in Conley v. Gibson16 held that a
challenge to the sufficiency of a complaint should only be upheld if "it
appears beyond doubt that the plaintiff can prove no set of facts...
which would entitle him to relief.' 7 With this decision, the Supreme
Court articulated a liberal test for judging the sufficiency of plead-
10 See CHARLES E. CLARK, HANDBOOK OF THE LAW OF CODE PLEADING § 11, at 28
(1928).
11 Id. § 38, at 150
12 JAMES ET AL., supra note 8, § 3.5, at 187 (citing CLARK, supra note 10, § 38, at
150).
13 SeeJACK H. FRIEDENTHAL ET AL., CRWvL PROCEDURE § 5.1, at 253 (4th ed. 2005);
Michael E. Smith, Judge Charles E. Clark and the Federal Rules of Civil Procedure, 85 YALE
L.J. 914, 915 (1976). "Notice pleading" followsJudge Clark's reasoning that pleadings
should "not be objectionable ... so long as reasonably fair notice of the pleader's
cause of action is given." CLARK, supra note 10, § 38, at 157. Notice pleading existed
within the federal system prior to the Federal Rules of Civil Procedure. Federal
Equity Rule 25, adopted by the United States Supreme Court in 1912, required a
plaintiff before an equity court to state "a short and simple statement of the ultimate
facts upon which the plaintiff asks relief." FED. EQurrY R. 25. Rule 8 took this princi-
ple and applied it beyond the limited scope of the equity rules. See FED. R. Civ. P. 8.
14 FED. R. Civ. P. 8(a)(2).
15 JAMES ET AL., supra note 8, § 3.6, at 187. Rule 8(f) also is indicative of the
"liberal" pleading standard under the Federal Rules. It states that "all pleadings shall
be so construed as to do substantial justice." FED. R. Civ. P. 8(f). American pleading,
therefore, had moved from a system where substance was sacrificed for form to a
system where the opposite was true.
16 355 U.S. 41 (1957), abrogated by Bell At. Corp. v. Twombly, 127 S. Ct. 1955
(2007). For an in-depth discussion on Conley, see infra Part I.A.
17 Conley, 355 U.S. at 46.
1814 NOTRE DAME LAW REVIEW [VOL. 83:4
ings-a test that would dominate the federal judiciary for the next
fifty years.'8
And then came Twombly. In discussing this case, only one thing is
certain: practicing attorneys must learn new language for their
motions, briefs, and oral arguments. The fifty-year-old Conley "no set
of facts" language has, apparently, "earned its retirement"-replaced
with a general requirement that the pleader's claim be "plausible."'19
Carefully scrutinizing the decision, legal academics have attempted to
define the scope and possible effects of this new plausibility language,
often reaching different conclusions. For the practicing attorney,
however, it is ultimately the judge's interpretation, not the professor's,
which will decide the fate of their complaint or motion to dismiss.
Unfortunately, faced with interpreting Twombly, many judges
have found uncertainty and confusion.20 As a result, neither Twombly
nor its progeny provide a clear statement as to the substantive, practi-
cal requirements a complaint must meet. Attorneys filing complaints
or responding to motions to dismiss thus face a considerable chal-
lenge as they attempt to plead through equivocal judicial precedents.
This Note, an empirical study, seeks to inject concrete facts into this
abstract reality. The question behind this study is a simple one: does
Twombly simply bring a linguistic reformulation of a familiar standard
or is it imposing its own, new standard? To answer this question, this
study looks at how the district courts, the frontline interpreters of any
pleading language, have treated the nascent Twombly decision. The
12 (b) (6) motion to dismiss provides a convenient medium to evaluate
Twombly's effect.21 Generally, any substantive alteration to the plead-
ing standard would have an effect on the dismissal rate under
12(b) (6), while mere semantic changes would leave the dismissal rate
22
largely unchanged.
The results of this study lead to three conclusions. First, while
some commentators have suggested that Twombly will only apply in
the antitrust context, this study shows that courts have applied the
18 See Adam N. Steinman, The IrrepressibleM yth of Celotex: Reconsidering Summary
Judgment Burdens Twenty Years After the Trilogy, 63 WASH. & LEE L. REv. 81, 143 (2006)
(showing Conley to be the fourth most cited case in the federal judiciary).
19 Twombly, 127 S. Ct. at 1966, 1969.
20 See, e.g., Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007); Temple v. Circuit City
Stores, Inc., Nos. 06 CV 5303 (JG), 06 CV 5304(0G), 2007 WL 2790154, at *3 (E.D.N.Y.
Sept. 24, 2007).
21 Federal Rule of Civil Procedure 12(b) states: "Every defense ... to a claim for
relief in any pleading ...sh all be asserted in the responsive pleading ... except that
the following defenses may at the option of the pleader be made by motion: .. .(6)
failure to state a claim upon which relief can be granted ...." FED. R. Civ. P. 12(b).
22 An exception to this general premise is discussed infra Part IV.C.
2oo8] 1815
MUCH ADO ABOUT TWOMBLY
decision in every substantive area of law governed by Rule 8. Antitrust
cases comprised only 3.7% (40 out of 1075) of all cases citing Twombly
in this study; the remainder is representative of every substantive area
of law. Second, despite sweeping language and the "retirement" of
fifty-year-old language, the new linguistic veneer that the Court has
placed on Rule 8(a) and 12(b) (6) appears to have had almost no sub-
stantive impact. Third, the one area in which this study does show a
significant departure from previous dismissal practice is the civil rights
field. The rate of dismissal in civil rights cases has spiked in the four
months since Twombly.
This Note proceeds in four parts. Part I provides context for the
study by examining the important Supreme Court precedents both
before and after Twombly as well as the response to Twombly in the
legal literature. Part II discusses the methodology of the empirical
study, while Part III presents the findings of the study in a variety of
ways. Finally, Part IV seeks to advance various hypotheses that could
each serve to explain the findings encountered in the study.
I. THE HISTORICAL AND ACADEMIC CONTEXT
The Federal Rules, with their basic pleading standard embodied
in Rule 8, were promulgated in 1938.231 They were not, however, self-
executing-the federal district courts were charged the task of inter-
preting and applying them. The actual text of Rule 8(a) (2) does not
differ greatly from what was required under code pleading systems.24
In fact, in the early years of the Federal Rules, some federal courts
resisted accepting that the Federal Rules required a more liberal
pleading standard.25 Overwhelmingly, however, the Federal Rules
were successful in ushering in a liberal, less technical pleading stan-
dard that allowed for a "great variety of pleading techniques."26
23 See Jay Tidmarsh, Pound's Century, and Ours, 81 NOTRE DAME L. REv. 513, 572
(2006).
24 See FRIEDENTHAL ET AL., supra note 13, § 5.7, at 267.
25 See id. § 5.8, at 269. Friedenthal cites two early district court cases: Employers'
Mutual Liability Insurance Co. of Wisconsin v. Blue Line Transfer Co., 2 F.R.D. 121 (W.D.
Mo. 1941) and Washburn v. Moorman Manufacturing Co., 25 F. Supp. 546 (S.D. Cal.
1938). These cases explicitly required that plaintiffs plead facts with specificity and
found the sample pleading forms in the Federal Rules to be nonbinding. In Wash-
burn, the complaint was dismissed despite the fact the complaint was based on the
form complaint. See id. at 546; see also Employers' Mut. Liab. Ins. Co., 2 F.R.D. at 123
("[T]hese forms do not dispense with the necessity, as occasion may require, for a
statement of certain details or particulars which would enable the defendant more
readily to prepare and file a responsive pleading.").
26 See Smith, supra note 13, at 917.
1816 NOTRE DAME LAW REVIEW [VOL. 83:4
In 1957, the Supreme Court spoke on Rule 8 in Conley. To
understand the context of Twombly, this Part proceeds to describe
Conley as well as two of its more recent progeny-Leathermanv . Tarrant
County Narcotics Intelligence & Coordination Unit27 and Swierkiewicz v.
Sorema N.A.28 It will then review the Twombly case as well as another
pleading-related case decided during the 2006-2007 Supreme Court
Term, Erickson v. Pardus.29 Finally, it provides a snapshot of select aca-
demic and practical articles in the legal literature in the wake of the
Twombly decision.
A. Conley and Its Progeny
Conley involved a case brought under the Railway Labor Act30 by
African American employees against their local railway union.31 The
plaintiffs alleged that the railroad had "abolished" theirjobs, enabling
the railroad to replace them with Caucasians.32 The crux of the com-
plaint against the union, the designated bargaining agent under the
Railway Act, was that it had done nothing to protect them from the
discriminatory conduct of the railroad and that the union had thus
failed in its duty to represent African American employees.33
The defendants moved to dismiss on a number of grounds,
including that the complaint had "failed to state a claim upon which
relief could be given."'34 The Supreme Court rejected this claim in a
single paragraph. The Court adopted the "accepted rule" 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.'35 The Court
also explicitly rejected the claim that "specific facts" were needed "to
support... general allegations"; all that was needed, according to the
Court, was that "fair notice" be given to the defendants. 36
In arriving at this "accepted rule," the Supreme Court cited three
court of appeals decisions that had articulated the requirements of
Rule 8. The earliest case cited by the Court, Leimer v. State Mutual Life
27 507 U.S. 163 (1993).
28 534 U.S. 506 (2002).
29 127 S. Ct. 2197 (2007).
30 45 U.S.C. §§ 151-188 (2000).
31 Conley v. Gibson, 355 U.S. 41 (1957), abrogated by Bell Atl. v. Twombly, 127 S.
Ct. 1955 (2007).
32 Id. at 43.
33 See id.
34 Id.
35 Id. at 45-46.
36 Id. at 47-48.
2oo8]
MUCH ADO ABOUT TWOMBLY 1817
Assurance Co.,3 7 involved a plaintiff suing an insurance company for
recovery of benefits following the death of her husband.38 The Eighth
Circuit found that the district court had "misconceived" the purpose
of a motion to dismiss by focusing on whether the "plaintiff had a
meritorious claim upon which [he] was entitled to prevail."39 Instead,
the court found that the correct question was "whether the . . . com-
plaint, construed in the light most favorable to the plaintiff and with
all doubt resolved in favor of its sufficiency, stated a claim upon which
relief could be granted."40 Rule 8, according to the Eighth Circuit,
required only "simpl[e] and informal[]" pleading with "few factual
averments. "41
The Conley Court also cited Continental Collieries, Inc. v. Shober.42
The district court had dismissed a breach of contract complaint on
two grounds. First, the court chose to give a greater weight to certain
averments and on the basis of those averments found that the statute
of frauds had not been satisfied.43 Second, the court found that cer-
tain necessary facts had not been averred.44 The Third Circuit
reversed.45 Finding that under the Federal Rules "[t] echnicalities are
no longer of their former importance," the court stated that Rule 8
only required "a short statement which fairly gives notice of the nature
of the claim."46 Under this standard, the complaint was found to be
sufficient as it was not clear "to a certainty from the complaint" that
the plaintiff was not "entitled to relief under any state of facts which
47
could be proved."
Finally, the Conley Court cited the Second Circuit's decision in
Dioguardi v. Durning48-a decision written by Judge Clark, the drafter
of the Federal Rules. The plaintiff, proceeding pro se, sought to
recover damages from the Collector of Customs for the loss of his
property.49 The key assertions in the complaint stated that the plain-
tiffs "'medicinal extracts' were given to the Springdale Distilling
Company 'with [his] betting ... price of $110: and not their price of
37 108 F.2d 302 (8th Cir. 1940).
38 See id. at 304.
39 Id.
40 Id.
41 Id. at 305.
42 130 F.2d 631 (3d Cir. 1942).
43 See id. at 633.
44 See id.
45 See id.
46 Id. at 635.
47 Id.
48 139 F.2d 774 (2d Cir. 1944).
49 See id. at 774-75.
1818 NOTRE DAME LAW REVIEW [VOL. 83:4
$120' and 'It isnt [sic] so easy to do away with two cases with 37 bottles
of one quart. Being protected, they can take this chance.'"50 Judge
Clark sustained the complaint and found that "however inartistically
they may be stated, the plaintiff has disclosed his claims."5' The
Supreme Court read and accepted the liberal pleading standard these
three appellate decisions established.
The Conley Court understood that a liberal pleading standard
would create a risk of unmeritous claims taking up valuable judicial
resources. However, the Court ultimately concluded that this risk
could be amply addressed by other pretrial procedures. Specifically,
the Court stated that such "simplified 'notice pleading"' was made
possible by "liberal opportunit[ies] for discovery and the other pre-
trial procedures. '52 Those provisions, and not the Rule 8 require-
ments, were to weed out unmeritorious claims. The pleadings were
merely "to facilitate a proper decision" and not to serve as a trap for
lawyers where one misstep could prove decisive.53 The Conley deci-
sion, and the circuit decisions cited by the Court, established a liberal
pleading standard for the federal courts and a correspondingly strict
standard for Rule 12(b) (6) motions.
In two more recent opinions, a unanimous Supreme Court reaf-
firmed this simple, liberal pleading standard by rejecting separate
attempts by lower courts to impose heightened pleading standards. In
Leatherman, landowners sought to impose liability on Tarrant County,
Texas, for alleged forcible entries by its law enforcement officers in
violation of the Fourth Amendment.54 The district court and the Fifth
Circuit dismissed on the grounds that the plaintiffs had failed to meet
the "heightened pleading standard" the Fifth Circuit required for civil
rights actions brought against municipalities.55
The Supreme Court reversed the Fifth Circuit and found that it
was "impossible to square the 'heightened pleading standard' . ..with
the liberal system of 'notice pleading' set up by the Federal Rules. '56
50 Id. at 775 (quoting plaintiff's amended complaint).
51 Id.
52 Conley v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955 (2007).
53 See id. at 48.
54 Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit,
507 U.S. 163, 165 (1993).
55 Id. The heightened standard was justified on two grounds. The first justifica-
tion was based on the risk of municipal functions being disrupted by time-consuming
litigation. See id. at 166-67. The second justification was the belief that the Federal
Rules mandated a varying degree of factual specificity based on the complexity of civil
rights actions. See id.
56 Id. at 168.
2oo8] MUCH ADO ABOUT TWOMBLY 18i9
The Court found two structural elements of the Federal Rules persua-
sive. First, it was acknowledged that Rule 9(b) imposed a requirement
of particularity pleading in specific circumstances and, in the words of
the Court, "expressio unius est exclusio alteius"-the express mention of
one thing excludes others.57 Additionally, the Court acknowledged
that had the Rules been drafted later in the twentieth century, policy
considerations might have led to different Rules 8 and 5 The Court
9. 8
concluded, however, that such policy considerations would have to be
effected through amendment of the Rules, not through judicial inter-
pretation.59 Though addressing only the specific question of pleading
in municipality civil rights cases,60 the Court had firmly stated that
policy considerations would not trump the liberal standard created by
the Federal Rules.
In Swierkiewicz, a former employee brought a lawsuit under Title
VII of the Civil Rights Act of 196461 and the Age Discrimination in
Employment Act69 against his employer.63 The plaintiff, a fifty-three-
year-old Hungarian man, alleged that he had been demoted by his
employer, a predominantly French corporation, and replaced with a
younger, French native.64 The district court and court of appeals dis-
missed the complaint on the ground that the petitioner had failed to
plead a prima facie case of discrimination.65 This standard required
57 Id. Federal Rule of Civil Procedure 9(b) provides: "In all averments of fraud or
mistake, the circumstances ... shall be stated with particularity. Malice, intent, knowl-
edge, and other condition of mind of a person may be averred generally." FED. R.
Civ. P. 9(b).
58 Leatherman, 507 U.S. at 168.
59 Id.
60 Speaking for the Court, Chief Justice Rehnquist explicitly stated that the deci-
sion did not extend to the question of whether heightened pleading could be
required in civil rights actions brought against individual government officials. See id.
at 166-67. The Ninth Circuit, Fifth Circuit, and Eleventh Circuit have all maintained
a heightened pleading standard for civil rights actions against individual government
officials (where qualified immunity is able to be asserted). See, e.g., Epps v. Watson,
492 F.3d 1240, 1242-43 (1lth Cir. 2007); Nunez v. Simms, 341 F.3d 385, 388 (5th Cir.
2003); Mendocino Envtl. Ctr. v. Mendocino County, 14 F.3d 457, 460 (9th Cir. 1994).
61 42 U.S.C.A. §§ 2000e to 2000e-17 (West 2003 & Supp. 2007).
62 29 U.S.C.A. §§ 621-624 (West 2000 & Supp. 2007).
63 Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508-10 (2002).
64 See id.
65 The prima facie case (what lower courts held had to be alleged) is (1) mem-
bership in a protected group; (2) qualification for the job in question; (3) an adverse
employment action; and (4) circumstances that support an inference of discrimina-
tion. See id. at 510.