Pleading in State Courts after Twombly and Iqbal

2010 Pound Civil Justice Institute Forum for State Appellate Court Judges

21 Pages Posted: 12 Apr 2012

See all articles by A. Benjamin Spencer

A. Benjamin Spencer

Harvard Law School; University of Virginia School of Law

Date Written: July 1, 2010


In parts I and II of his paper, Professor Spencer introduces the concept of “notice pleading” and contrasts it with the fact-pleading regime that existed before the adoption of the Federal Rules of Civil Procedure. The 1938 rules included the well-known provision that a pleader need provide only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In a line of decisions extending to 2002, the United States Supreme Court underscored the liberality of the federal courts’ ordinary pleading standard, stating notably in Conley v. Gibson in 1957 that a complaint should not be dismissed unless “no set of facts” could establish the pleader’s entitlement to relief.

In part III, Professor Spencer analyzes the Supreme Court’s more recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, in which it abrogated the Conley “no set of facts” standard, added a requirement of “plausibility,” and called for courts to employ a “two- pronged approach” to their review of pleadings, in which allegations that are merely conclusory are set aside and the remaining allegations are examined for sufficient plausibility. The effect of these two decisions, Professor Spencer observes, appears to be to set aside the federal courts’ 70-year-old notice pleading regime in favor of requiring parties to plead specific facts if they hope to avoid dismissal.

Part IV discusses the reactions to Twombly and Iqbal of the lower federal courts. Although a few decisions appear to resist the new regime, the Courts of Appeals generally have accepted that the Supreme Court now requires factual details in complaints. Civil rights, antitrust, RICO, and securities fraud cases are among the substantive areas hit hardest by the new approach. Professor Spencer asks whether federal district courts may take Twombly and Iqbal as justifica- tion to require a higher level of pleading even if parties can’t reach a higher level of specificity prior to discovery ― and may even be tempted simply to dismiss complaints that they believe are weak or lack merit.

In part V, Professor Spencer examines the impact of Twombly and Iqbal within state jurisdictions, which fall roughly into two groups ― the majority of states whose civil procedure systems “replicate” the federal rules, and those that vary from the Federal Rules in some significant way. In the three years since Twombly was decided, courts in 14 of the “replica” states have had occasion to reexamine their pleading standards. Seven replica state courts have declined to follow the federal move in the direction of plausibility pleading, but only two so indicated through their states’ highest courts. The courts in the other seven replica states that have addressed these cases appear to have embraced the fact-pleading requirement, including the highest courts in five of those states. In the non-replica states, there has been little response from the few that use notice pleading, and there can be little expectation that the remaining states whose courts already use fact pleading will be significantly impacted by the new federal regime. The resulting box score is 24 states for tighter pleading and 27 apparently maintaining notice pleading.

The normative question of how states should respond to Twombly and Iqbal remains, and Professor Spencer outlines a number of considerations that he suggests state policymakers should address, including matters of policy, practicality, and doctrine.

Keywords: Twombly, Iqbal, pleading, Rule 8(a)

JEL Classification: K4, K40, K41

Suggested Citation

Spencer, A. Benjamin, Pleading in State Courts after Twombly and Iqbal (July 1, 2010). 2010 Pound Civil Justice Institute Forum for State Appellate Court Judges. Available at SSRN:

A. Benjamin Spencer (Contact Author)

Harvard Law School ( email )

1525 Massachusetts Ave.
Cambridge, MA 02138
United States

HOME PAGE: http://

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434.924.3572 (Phone)


Register to save articles to
your library


Paper statistics

Abstract Views
PlumX Metrics