63 Pages Posted: 23 Jun 2012 Last revised: 27 Oct 2012
Date Written: September 18, 2012
Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal rejected the "notice pleading" ethic propounded in Conley v. Gibson, and replaced it with a requirement that a complaint must be "plausible on its face" to survive a Rule 12(b)(6) motion. "Plausible on its face," however, is just another in a long line of facially content-less phrases that have governed Rule 12(b)(6) motions for years. More long-standing phrases in this collection include the requirement that the court must assume a plaintiff's allegations to be true unless those allegations are "conclusory," and the corollary that the court must draw all "reasonable" inferences in the plaintiff's favor -- but of course not "unreasonable" inferences, or "unwarranted" deductions.
When we look at these longstanding phrases more closely, we see that for decades now, they are where 12(b)(6) battles have been fought. Indeed, what the court must assume true and what it may disbelieve is often the most important -- yet unstated -- issue in a 12(b)(6) motion. And although these various verbal formulations lack obvious content, the federal courts have nonetheless used these phrases fairly consistently -- if implicitly -- to refer to discrete concepts that can be applied in a principled manner. "Conclusory" almost always refers to a bare assertion that an element of a cause of action is satisfied. And an "unreasonable" or "unwarranted" inference is one the court will not make because, under the specific circumstances, there is reason to suspect that the plaintiff has not conducted the pre-filing "inquiry reasonable under the circumstances" that Rule 11 requires.
Assuming I have correctly discerned the meaning of these terms, there is no sound reason to leave these meanings unexpressed. Thus, I propose a new rule, which I will call "Rule 12.1," that makes all of this explicit. The upshot of Rule 12.1 is that Twombly/Iqbal “plausibility” would no longer be necessary. Pre-Twombly, the federal courts' had -- through essentially a common law process -- worked out a serviceable system for resolving 12(b)(6) motions in a fairly principled manner that took each case's unique facts into account. This system was sometimes a far cry from Conley's notice pleading ethic, but it nonetheless balanced plaintiffs' and defendants' interests fairly effectively. When systematized and trimmed of areas for abuse (as Rule 12.1 attempts), it deserves serious consideration in place of "plausibility," which seems to do little more than invite the defendant to test the judge’s disposition toward the case.
Keywords: twombly, iqbal, 12(b)(6), pleading, notice pleading, conley, Rule 8, Rule 12, Charles Clark, federal rules of civil procedure
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