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

Texas Tech Law Review, July 2013

49 Pages Posted: 9 Sep 2012 Last revised: 12 Sep 2013

Jill L. Curry

University of Maryland - Department of Government & Politics

Matthew Alex Ward

University of Maryland Francis King Carey School of Law

Date Written: May 8, 2012

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.

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

JEL Classification: K41

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: https://ssrn.com/abstract=2143444

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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