The Reviewability of Denied Twombly Motions

83 Pages Posted: 11 Sep 2015 Last revised: 11 Feb 2017

See all articles by Luke Meier

Luke Meier

Baylor University - Law School

Date Written: September 9, 2015

Abstract

This article argues in favor of permitting appellate review of a denied Twombly motion when a defendant appeals an adverse final judgment. With regard to denied summary judgment motions, the question of post-judgment appellate review has caused considerable confusion in the last few years. This article aims to prevent this confusion from developing with regard to denied Twombly motions and, in the process, to clear up the existing uncertainty with regard to appellate review of denied summary judgment motions. The critical step towards this goal is distinguishing between “mootness” and “forfeiture.” Because a denied Twombly motion is not rendered moot by subsequent proceedings in the district court, and because a defendant does not forfeit appellate review of a denied Twombly motion, appellate courts should assess the propriety of the denial of a Twombly motion in an appeal from a final judgment. This conclusion might appear, on first impression, outrageous. But it is the proper conclusion under existing rules governing the availability of appellate review.

Keywords: twombly, appeal, motion to dismiss, appealability, review, reviewability, ortiz, jordan, johnson, jones, iqbal, ashcroft, steinman, summary judgment, final judgment, Rule 12(b)(6), Rule 8, Rule 56, Rule 50, Unitherm

Suggested Citation

Meier, Luke, The Reviewability of Denied Twombly Motions (September 9, 2015). University of Cincinnati Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2658221

Luke Meier (Contact Author)

Baylor University - Law School ( email )

Sheila & Walter Umphrey Law Center
1114 South University Parks Drive
Waco, TX 76706
United States

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