The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly

Abstract

This Symposium Article argues that the motion to dismiss is the new summary judgment motion. In Iqbal v. Ashcroft and Bell Atlantic Corp. v. Twombly, the Supreme Court created a new standard for granting motions to dismiss under Rule 12(b)(6). Under the standard, a court decides whether a claim is plausible. This new plausibility standard is converging with the standard for summary judgment under Rule 56. Not coincidentally, the motion to dismiss appears to be having some of the same effects as summary judgment, including on the dismissal of employment discrimination claims. Moreover, as a result of the similarities between the motion to dismiss and the summary judgment standards, the Supreme Court case of Swierkiewicz v. Sorema N.A., which concerned the standard by which courts dismiss employment discrimination claims under Rule 12(b)(6), effectively may be dead. This Article concludes that the differences between the motion to dismiss and summary judgment call into question the propriety of Iqbal and Twombly.

Keywords: Iqbal, Twombly, Bell Atlantic, summary judgment, motion to dismiss, plausible, plausibility, Rule 56, Rule 8, Rule 8(a)(2), notice pleading, notice, Conley

JEL Classification: K41, K22, J70, K40, K49, K19, K10, K13