Abstract

http://ssrn.com/abstract=2143444
 


 



Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State


Jill L. Curry


University of Maryland - Department of Government & Politics

Matthew Alex Ward


University of Maryland Francis King Carey School of Law

May 8, 2012

Texas Tech Law Review, July 2013

Abstract:     
This article originated from a 2010-11 study the Federal Judicial Center conducted to examine the impact, if any, of the Supreme Court decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal on civil litigation in the United States federal courts. To examine this impact, we compared removal rates of cases to federal courts between states using notice pleading standards and states using fact pleading standards. We predicted that heightened pleading standards in federal courts would encourage plaintiffs in cases with federal and state claims, especially plaintiffs alleging a violation of their civil rights, to file in state courts to benefit from the liberal notice pleading standard. Therefore, defendants would be more likely to remove such cases filed in notice pleading state court to federal courts to take advantage of the newly announced heightened pleading standard. After reviewing existing commentary and existing empirical research about the impact of Twombly and Iqbal, we explain the methodology for our removal study, present the results of a preliminary study to examine removal rates of four states, and subsequently present the results of our expanded examination of removal rates of all fifty states and the District of Columbia. However, the results demonstrate that these expectations were not met. There was no systematic increase in the rate of removal after Twombly and Iqbal and the effect was not more pronounced in notice pleading states compared to fact pleading states, questioning the assertion that cases are being diverted from federal court to state courts due to heightened pleading standards.

Number of Pages in PDF File: 49

Keywords: pleading, civil procedure, Twombly, Iqbal, removal rate

JEL Classification: K41

Accepted Paper Series


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Date posted: September 9, 2012 ; Last revised: September 12, 2013

Suggested Citation

Curry, Jill L. and Ward, Matthew Alex, Are Twombly & Iqbal Affecting Where Plaintiffs File? A Study Comparing Removal Rates by State (May 8, 2012). Texas Tech Law Review, July 2013. Available at SSRN: http://ssrn.com/abstract=2143444

Contact Information

Jill L. Curry (Contact Author)
University of Maryland - Department of Government & Politics ( email )
3140 Tydings Hall
College Park, MD 20742
United States
Matthew Alex Ward
University of Maryland Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
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