The New Rule 12(b)(6): Twombly, Iqbal, and the Paradox of Pleading

Abstract

In 2007, the Court handed down its opinion in Bell Atlantic v. Twombly. The case set the civil procedure world abuzz; in addition to “retir[ing]” Conley v. Gibson’s famous “no set of facts” standard, Twombly introduced the concept of “plausibility” as the dividing line between complaints that do and do not state a claim. Scholars and courts alike divided on the case’s true meaning, and spilled a great deal of ink in attempting to discern what level of factual specificity was needed to satisfy “plausibility.” It was clear that the Court would soon have to re-enter the Rule 8 waters. Less than a month ago, the Supreme Court issued its opinion in Ashcroft v. Iqbal. Initially viewed by some as a qualified immunity case, Iqbal ended up being decided on 12(b)(6) grounds. The Court concluded that Iqbal’s complaint simply failed to state a claim, and codified and clarified the idea of plausibility introduced in Twombly.

This Comment represents the first comprehensive scholarly analysis of Iqbal. It makes two crucial, and novel, observations about the opinion. First, I argue that Iqbal makes clear that “plausibility” is ultimately a process rather than a quantum of proof. That is, Iqbal defines plausibility as a two-step mechanism for evaluating complaints, rather than merely raising the amount of factual specificity required to state a claim. Nevertheless, I contend that in so doing, Iqbal does establish a heightened pleading standard relative to Conley. Next, I argue that Iqbal will have particularly profound effects in the civil rights context. More specifically, I assert that Iqbal overrules one of the Court’s critical Section 1983 precedents - Crawford-El v. Britton - and renders another precedent, Pullman-Standard v. Swint, ineffective at best. Ultimately, I conclude that Iqbal and Twombly display the dangers of changing procedural rules to effect substantive outcomes, and usher in a defendant-friendly era of pleading reminiscent of the regime that the Federal Rules were designed to displace.

Keywords: Civil Procedure, Civil Rights Litigation, Qualified Immunity, Pleading, 12(b)(6), Twombly, Iqbal