By:Barry Miller and Casey Stansbury*
Fowler Measle & Bell PLLC
The question before the Supreme Court seemed narrow: Had an alleged terrorist stated a claim in his complaint over the conditions of his confinement after arrest? The short answer was no. Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). But how the court phrased that answer, has created a mini-revolution in motion-to-dismiss practice in federal courts. Iqbal may be starting to affect state practice as well.
To understand Iqbals impact, a reader must first confront Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2006). Twombly was a complex class-action antitrust suit, which the trial court dismissed for failure to state a claim. The Second Circuit reversed, applying the long standing rule of Conley v. Gibson, 355 U.S. 41 (1957): A motion to dismiss must be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley, 355 U.S. at 46-47. Twombly stated a new standard: Plausibility. To survive dismissal, a complaint must allege enough facts to state a claim to relief that is plausible on its face. Twombly, 550 U.S. at 570.
But Twombly left open whether the plausibility standard applied only in anti-trust cases, only in complex litigation, or in all cases. According to a recent seminar, a current Supreme Court Justice, in a speech delivered before Iqbal, assured federal practitioners that Twombly’s holding was limited to complex litigation.
In Iqbal, that justices colleagues disagreed.
According to Iqbal, Twombly decided whether a complaint met the requirements of Federal Rule of Civil Procedure 8. That Rule in turn governs the pleading standard in all civil actions and proceedings in the United States district courts. Iqbal, 129 S.Ct. 1953, quoting Fed.R.Civ. Proc. 1. Twombly thus expounded the pleading standard for all civil actions. . . . Id.
Practitioners have taken those words literally. Though Iqbal is not yet a year old, it has been cited in more than 6,000 cases. The case has enraged the plaintiff’s bar. John Vail, vice president of the Center for Constitutional Litigation, P.C., told that National Law Journal last fall that Iqbal heralds a return to the kind of legal practice Dickens condemned in Bleak House.
Congressional response has included the introduction of proposed legislation to overturn Iqbal and Twombly. Senator Arlen Specter (D-Pa) sponsored the Notice Pleading Restoration Act of 2009, which would require federal courts to apply the Conley v. Gibson standard to all motions to dismiss. Representatives John Conyers (D-Mich) and Henry Johnson (D-Ga) have introduced the Open Access to Courts Act of 2009 in the House. That bill would also adopt the Conley v. Gibson standard, and would expressly prohibit a federal court from applying Twombly or Iqbal.
Certainly, Iqbal has caused some practical problems. Justice Souter, who wrote Twombly, dissented in Iqbal, and raised the question of whether practitioners can now trust the form pleadings appended to the Federal Rules of Procedure, and incorporated by Fed.R.Civ. Proc. 84. As written, those forms embody the Conley standard, and may not be sufficient to meet Iqbal scrutiny. And it may not be just complaints that are subjected to that scrutiny. Boilerplate answers that pleadwithout supporting factseach affirmative defense listed in Fed.R.Civ.Proc. 8(c)(1) are difficult to distinguish from conclusory allegations.
But for now, Iqbal is generally helpful to the defense, particularly because of how that standard is stated. Iqbal is a trove of powerful language that can support of a motion to dismiss. Just a few examples:
Motions to dismiss should follow Iqbal two-step analysis. Iqbal instructs trial courts considering a motion to dismiss to first disregard all conclusory allegations. The second step is to determine whether those allegations that remainwhich all must be accepted as truestate a plausible claim to relief. A motion to dismiss should identify the complaints conclusory allegations then explain why the remaining allegations do not state a plausible claim.
Defense counsel and their clients can also use this two-step analysis to decide whether a motion to dismiss is appropriate in a particular case. Despite Iqbal’s refusal to limit Twombly’s holding to complex litigation, the two-step analysis will be easier to apply in some cases than in others. For example, it is difficult to imagine Iqbal having much impact on areas such as the defense of automobile negligence cases. There, a simple statement that the defendant operated a car negligently at a certain date, place, and time, and that the defendant’s negligent operation harmed the plaintiff should still state a claim.
But it seems clear that motions to dismiss will be warranted more often than under the Conley standard, particularly in cases filed in federal court, or that can be removed there.
How will Iqbal affect state practice?
To date, eight state courts have cited the case, but not all of them cite Iqbal for its procedural holdings.
As for those state courts who have discussed Iqbal on procedural matters:
One panel of the Tennessee Court of Appeals applied the Iqbal standard to a case involving federal constitutional issues (Deja Vu of Nashville, Inc. v. Metro Gov’t, 2009 Tenn. App. LEXIS 683). But a second declined to adopt the standard in a case involving state tort law. Morris v. Grusin, 2009 Tenn. App. LEXIS 874. Morris noted that United States Supreme Court decisions are binding on Tennessee courts only on issues arising under the federal constitution, and that it would be up to the Tennessee Supreme Court to adopt the Iqbal standard in all civil cases.
The Superior Court of Rhode Island found the Iqbal standard was consistent with the state’s Supreme Court approach to motions to dismiss. But the court also noted that it had previously held that Twombly required a heightened level of pleading in complex cases. It found that the case before it (involving questions of default on a lease, and counterclaims of fraud) did not rise to that level of complexity. It thus decided to apply the general standards accepted by Rhode Island courts, and not require a heightened level of pleading. It denied a motion to dismiss. Siemens Financial Services, Inc. v. Stonebridge Equipment Leasing, LLC, 2009 R.I. Super. LEXIS 147.
A New York trial court cited Iqbal, but in the context of a ruling on a bench trial rather than on a motion to dismiss. Creative Interiors, Inc. v. Grinberg, 2009 N.Y. Misc. LEXIS 2027. The citation, however, shows that Iqbals holdings can be useful at any state of a proceeding, when it appears that a plaintiffs theory relies on improbable facts. The New York court used it to state that it need not accept assertions that are implausible and not worthy of belief because they are manifestly untrue, . . . contrary to experience, or self-contradictory. Id, *5.
Dissenting judges in Montana (McKinnon v. Wester Sugar Coop. Corp., 201 Mont. LEXIS 21) and Michigan (Duncan v. State, 2009 Mich.App. LEXIS 1380) have relied on Iqbal to argue that generalized assertions should not avoid a motion to dismiss.
And an Indiana court cited Justice Souters Iqbal dissent, saying a plaintiff’s complaint was not baseless on its face because it did not include claims about little green men, his recent trip to Pluto, or his experiences in time travel. Smith v. Wrigley, 908 N.E.3d 354, 359 (Ind. App. 2009).
Somewhere between little green men and detailed factual allegations lies the territory of Plausibility. As courts continue to discuss the finer points of Iqballike they have already done in more than 6,000 caseswe should get a clearer idea of exactly where that realm can be found.
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