The Reviewability of Denied Twombly Motions
83 Pages Posted: 11 Sep 2015 Last revised: 11 Feb 2017
Date Written: September 9, 2015
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
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