The new rule 12(B)(6): Twombly, Iqbal, and the paradox of pleading

Stanford Law Review

Volumn 62, Issue 3, 2010, Pages 905-930

  Kilaru, Rakesh N ^a  

^a STANFORD LAW SCHOOL   (United States)

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EID: 77950398981     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (155)

1. 550 U.S. 544 (2007).
2. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
3. To Charles E. Clark, the "principal draftsman" of the Federal Rules of Civil Procedure, see Twombly, 550 U.S. at 575 (Stevens, J., dissenting), liberal pleading rules were necessary to eliminate the common practice of dismissing complaints on purely technical grounds, and to minimize the information asymmetries between plaintiffs and defendants by lowering the bar to discovery. See Charles E. Clark, The New Federal Rules of Civil Procedure: The Last Phase-Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A. J. 976, 976-77 (1937) (explaining the underlying theories of the new federal rules and noting that "the weapons of discovery have new devices, with more appropriate penalties to aid in matters of proof").
4. See Twombly, 550 U.S. at 548-50.
5. Twombly. at 556, 570.
6. Twombly. at 579 (Stevens, J., dissenting); see ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 58 (1st Cir. 2008) (concluding that Twombly gives Rule 12(b)(6) "more heft")
7. Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007) (holding that post-Twombly, a plaintiff must give the court reason to believe that she has "a reasonable likelihood of mustering factual support for [her] claims")
8. see also A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431 (2008) (arguing that Twombly represents a sea change in the application and interpretation of Rule 8(a)(2)).
9. See, e.g., Aktieselskabet AF 21. Nov. 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir. 2008) ("Twombly leaves the long-standing fundamentals of notice pleading intact.")
10. Airborne Beepers & Video, Inc. v. AT & T Mobility L.L.C., 499 F.3d 663, 667 (7th Cir. 2007) ("Twombly did not signal a switch to fact-pleading.")
11. Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 878 (2009) ("[T]he Court's plausibility standard marks only a modest departure from notice pleading.")
12. Keith Bradley, Pleading Standards Should Not Change After Bell Atlantic v. Twombly, 102 NW. U. L. REV. 117 (2007), available at http://www.law.northwestern.edu/ lawreview/colloquy/2007/31/LRColl2007n31Bradley.pdf (contending that Twombly can be confined to the narrow context of antitrust decisions)
13. Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 FED. RULES DECISIONS 604, 632 (2007).
14. Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 WASH. U. J.L. & POL'Y 61 (2007). Epstein argues that Twombly reached the right result, but for the wrong reasons; the Court should have instead held that summary judgment is often appropriate at the close of pleadings, "especially against plaintiffs whose claims are based solely on easily accessible public information which already have been rebutted by the same kinds of public evidence." Id. At 62.
15. Edward D. Cavanagh, Twombly, The Federal Rules of Civil Procedure and the Courts, 82 ST. JOHN'S L. REV. 877 (2008) (arguing that though certain classes of cases might warrant particularized pleading, that decision should be made by amendments to the Federal Rules, and not by judges).
16. See Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV (forthcoming May 2010) (calling Twombly one of the most "frequently cited Supreme Court decisions of all time" and noting that it had been cited in 14,645 federal decisions as of June 30, 2009)
17. Anthony Martinez, Note, Plausibility Among the Circuits: An Empirical Survey of Bell Atlantic Corp. v. Twombly, 61 ARK. L. REV. 763, 772 (2009) (observing that Twombly had been cited over ten thousand times as of November 2008)
18. Smith v. Duffey, 576 F.3d 336, 339-40 (7th Cir. 2009) (Posner, J.) (remarking that Twombly is "fast becoming the citation du jour in Rule 12(b)(6) cases").
19. See, e.g., Fame Jeans, 525 F.3d at 15 ("Many courts have disagreed about the import of Twombly. We conclude that Twombly leaves the longstanding fundamentals of notice pleading intact." (footnote omitted)); Advest, 512 F.3d at 58 ("In order to survive a motion to dismiss, a complaint must allege 'a plausible entitlement to relief.'" (quoting Twombly, 550 U.S. at 559)); Airborne Beepers, 499 F.3d at 667 ("[A]t some point the factual detail in a complaint may be so sketchy that the complaint does not provide the type of notice of the claim to which the defendant is entitled under Rule 8."); Schneider, 493 F.3d at 1177 ("[T]he complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims."); see also BARBARA ALLEN BABCOCK, TONI M. MASSARO & NORMAN W. SPAULDING, CIVIL PROCEDURE: CASES AND PROBLEMS 330-31 (4th ed. 2009) (collecting cases).
20. 129 S. Ct. 1937 (2009).
21. at 1943. For a quick and more humorous précis of the case, see Dahlia Lithwick, The Attorney General Is a Very Busy Man, SLATE, Dec. 10, 2008, http://www.slate.com/id/2206441/pagenum/all/.
22. Iqbal, 129 S. Ct. at 1951.
23. Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
24. Iqbal, 129 S. Ct. at 1944.
25. See Elmaghraby v. Ashcroft, No. 04 CV 01809 JG SMG, 2005 WL 2375202, at *11, *35 (E.D.N.Y. Sept. 27, 2005).
26. See Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).
27. Posting of Lyle Denniston to SCOTUSblog, Analysis: Special Legal Immunity for Handling Crises?, http://www.scotusblog.com/wp/analysis-special-legal-immunity-forhandling-crises/ (Dec. 10, 2008, 12:49 EST).
28. See, e.g., Transcript of Oral Argument at 3-5, Iqbal, 129 S. Ct. 1937 (No. 07-1015).
29. Denniston, supra note 19.
30. Iqbal, 129 S. Ct. at 1952-54.
31. Compare Bell Atlantic v. Twombly, 550 U.S. 544 (2007) (Souter, J., Opinion of the Court) with Iqbal, 129 S. Ct. at 1954 (Souter, J., dissenting).
32. 523 U.S. 574 (1998).
33. 456 U.S. 273 (1982).
34. I thank Pamela Karlan and Toby Heytens for their help in framing Part III.
35. Twombly, 550 U.S. at 563 ("[Conley's] famous observation has earned its retirement.").
36. See Conley v. Gibson, 355 U.S. 41, 45-46 (1957) ("In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim 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.").
37. Twombly, 550 U.S. at 561 (brackets omitted) (quoting Conley, 355 U.S. at 45).
38. Id. at 562 (quoting Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347 (2005)).
39. Id. Mr. (Wilkins) Micawber is a character in David Copperfield, famous for his relentless optimism in the face of poor fortune. See CHARLES DICKENS, DAVID COPPERFIELD (Penguin Classics 2004) (1850).
40. Twombly, 550 U.S. at 564.
41. Twombly. At 570
42. These terms are mine, though the Court alludes to the concepts, as seen infra in the text accompanying notes 37-38.
43. Twombly, 550 U.S. at 555
44. See Twombly. At 564-70
45. Indeed, the fact that Iqbal followed so closely on the heels of Twombly illustrates how fundamental the Rule 12(b)(6) standard is to the functioning of the federal courts.
46. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1944 (2009).
47. Ashcroft v. Iqbal, 129 S. Ct. 1937. (quoting Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007)).
48. See Transcript of Oral Argument at 10, Iqbal, 129 S. Ct. 1937 (No. 07-1015).
49. See Ashcroft v. Iqbal, 129 S. Ct. 1937. at 11-12.
50. Ashcroft v. Iqbal, 129 S. Ct. 1937. at 13.
51. See, e.g., id. at 14-16. Justice Breyer asked whether it was possible to obtain dismissal when there is "no basis for thinking that" the facts in a hypothetical suit actually occurred. Immediately after, Justice Souter alluded to the distinction drawn in Twombly between factual and legal implausibility. Id. at 14-15.
52. Iqbal, 129 S. Ct. at 1951.
53. Iqbal. at 1959 (Souter, J., dissenting) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
54. Iqbal. (quoting Brief for Petitioner at 28, Iqbal, 129 S. Ct. 1937 (No. 07-1015)) (noting that this position "besp[oke] a fundamental misunderstanding of the enquiry that Twombly demands").
55. Iqbal. at 1950 (Kennedy, J., Opinion for the Court) ("In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief."); id. at 1959 (Souter, J., dissenting) ("Under Twombly, the relevant question is whether, assuming the factual allegations are true, the plaintiff has stated a ground for relief that is plausible."). This universal approach stands in contrast to the lower court's slidingscale approach. See Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).
56. Iqbal, 129 S. Ct. at 1951 (Kennedy, J., Opinion for the Court).
57. Iqbal. (internal quotations omitted).
58. Iqbal. (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).
59. See Iqbal. at 1951-52.
60. See Iqbal. at 1952.
61. Iqbal. at 1960 (Souter, J., dissenting).
62. Iqbal. at 1961.
63. See Iqbal. at 1960 ("The fallacy of the majority's position, however, lies in looking at the relevant assertions in isolation.").
64. Bell Atlantic v. Twombly, 550 U.S. 544, 589-92 (2007) (Stevens, J., dissenting).
65. See Iqbal. at 571-72 ("In sum, respondents allege that petitioners entered into an agreement that has long been recognized as a classic per se violation of the Sherman Act.").
66. Iqbal. at 589.
67. See Iqbal. at 591-93.
68. Iqbal. at 589-90 ("The Court's dichotomy between factual allegations and 'legal conclusions' is the stuff of a bygone era. That distinction was a defining feature of code pleading, but was conspicuously abolished when the Federal Rules were enacted in 1938." (citations omitted)); see also 5 THE LATE CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1218, at 267 (3d ed. 2009) ("[T]he federal rules do not prohibit the pleading of facts or legal conclusions as long as fair notice is given to the parties.")
69. Charles E. Clark, The Complaint in Code Pleading, 35 YALE L.J. 259 (1926) (chronicling historical shift to pure fact pleading).
70. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
71. See Ashcroft v. Iqbal, 129 S. Ct. 1937. at 1951-52.
72. See id.; see also id. at 1960 (Souter, J., dissenting).
73. See Twombly, 550 U.S. at 553; see also Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775 (1984) ("[Section 1 of the Sherman Act] does not prohibit [all] unreasonable restraints of trade but only restraints effected by a contract, combination, or conspiracy."); Theatre Enters., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540 (1954) (stating that "[t]he crucial question" in Section 1 cases is whether the challenged anticompetitive conduct "stem[s] from independent decision or from an agreement, tacit or express").
74. Iqbal, 129 S. Ct. at 1948-49 (Kennedy, J., Opinion for the Court) ("It follows that, to state a claim based on a violation of a clearly established right, respondent must plead sufficient factual matter to show that petitioners adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin."); id. at 1951 (dismissing separate allegations of supervision, implementation, and unconstitutional motive).
75. See MANUAL FOR COMPLEX LITIGATION (FOURTH) § 30 (2004) ("Antitrust litigation can, however, involve voluminous documentary and testimonial evidence, extensive discovery, complicated legal, factual, and technical (particularly economic) questions, numerous parties and attorneys, and substantial sums of money. ");
76. William H. Wagener, Note, Modeling the Effect of One-Way Fee Shifting on Discovery Abuse in Private Antitrust Litigation, 78 N.Y.U. L. REV. 1887, 1898-99 (2003) ("[C]ourts typically permit antitrust discovery to range further (and costs to run higher) than in most other cases.")
77. Frank H. Easterbrook, Comment, Discovery as Abuse, 69 B.U. L. REV. 635, 635 (1989) ("That discovery is war comes as no surprise. That discovery is nuclear war, as John Setear suggests, is. Discovery more often calls to mind the trench warfare of World War I, the war of attrition." (footnote omitted)).
78. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 816-17 (1982) (adopting an objective reasonableness test for qualified immunity, in part because "it now is clear that substantial costs attend the litigation of the subjective good faith of government officials. the general costs of subjecting officials to the risks of trial-distraction of officials from their governmental duties, inhibition of discretionary action, and deterrence of able people from public service")
79. Halperin v. Kissinger, 606 F.2d 1192, 1214 (D.C. Cir. 1979) (Gesell, J., concurring) ("[W]ith increasing frequency in this jurisdiction and throughout the country plaintiffs are filing suits seeking damage awards against high government officials in their personal capacities based on alleged constitutional torts. Each such suit almost invariably results in these officials and their colleagues being subjected to extensive discovery into traditionally protected areas Such discover [sic] is wide-ranging, time-consuming, and not without considerable cost to the officials involved. The effect of this development upon the willingness of individuals to serve their country is obvious.").
80. See, e.g., Twombly, 550 U.S. at 563 ("[The Conley standard] is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.").
81. Twombly, 550 U.S. at 564.
82. Iqbal, 129 S. Ct. at 1951.
83. Twombly, 550 U.S. at 1949-50.
84. This shift is one worth dwelling on for a moment, for it effectively reverts to the type of code-pleading scheme that the Federal Rules of Civil Procedure abolished. See, e.g., Twombly, 550 U.S. at 589-90 (Stevens, J., dissenting).
85. Iqbal, 129 S. Ct. at 1950-51.
86. See, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) ("[I]mposing the Court of Appeals' heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must include only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'")
87. Crawford-El v. Britton, 523 U.S. 574, 595 (1998) ("[T]he Court of Appeals adopted a heightened proof standard in large part to reduce the availability of discovery in actions that require proof of motive. To the extent that the court was concerned with this procedural issue, our cases demonstrate that questions regarding pleading, discovery, and summary judgment are most frequently and most effectively resolved either by the rulemaking process or the legislative process.")
88. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993) ("We think that it is impossible to square the 'heightened pleading standard' applied by the Fifth Circuit in this case with the liberal system of 'notice pleading' set up by the Federal Rules.").
89. Twombly, 540 U.S. at 569 n.14. Justice Souter relegated this observation to a footnote, perhaps to minimize further the specter of heightened pleading.
90. Iqbal, 129 S. Ct. at 1949.
91. An allusion to Justice Scalia's dissent in Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist. decrying the Court's use of the Lemon test. 508 U.S. 384, 398 (1993) (Scalia, J., concurring) ("Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.").
92. 507 U.S. at 168-69.
93. 534 U.S. at 512.
94. Even Rule 9(b), which imposes heightened pleading in cases involving fraud or mistake, permits "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally." FED. R. CIV. P. 9(b) (emphasis added). This approach stands in stark contrast to Iqbal, which creates special burdens in cases involving allegations of bad faith or bad motive. See infra III.B.
95. Swierkiewicz, 534 U.S. at 514-15 ("Respondent argues that allowing lawsuits based on conclusory allegations of discrimination to go forward will burden the courts and encourage disgruntled employees to bring unsubstantiated suits. Whatever the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits. A requirement of greater specificity for particular claims is a result that 'must be obtained by the process of amending the Federal Rules, and not by judicial interpretation.'" (citation omitted) (quoting Leatherman, 507 U.S. at 168))
96. Leatherman, 507 U.S. at 168-69 ("Perhaps if Rules 8 and 9 were rewritten today, claims against municipalities under § 1983 might be subjected to the added specificity requirement of Rule 9(b). But that is a result which must be obtained by the process of amending the Federal Rules, and not by judicial interpretation. In the absence of such an amendment, federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.").
97. Indeed, Form 11 is about as "conclusory" as pleadings come. The complaint states merely that "On date, at place, the defendant negligently drove a motor vehicle against the plaintiff." FED. R. CIV. P. Form 11. It then describes the plaintiff's injury and demands judgment. Id. As Justice Stevens noted in dissent in Twombly, "[t]he asserted ground for relief-namely, the defendant's negligent driving-would have been called a 'conclusion of law' under the code pleading of old." Bell Atlantic v. Twombly, 550 U.S. 544, 576 (2007) (Stevens, J., dissenting). It is thus unclear whether Rule 84's admonition that the forms "suffice under these rules and illustrate the simplicity and brevity that these rules contemplate" survives Twombly and Iqbal. See FED. R. CIV. P. 84.
98. Indeed, the problem with Twombly's complaint was that it did not set out "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570 (emphasis added). The same was true for Iqbal. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1952 (2009) ("[R]espondent's complaint does not contain any factual allegation sufficient to plausibly suggest petitioners' discriminatory state of mind.").
99. Justice Stevens made this observation first, in Twombly itself: "In this 'Big Case,' the Court succumbs to the temptation that previous Courts have steadfastly resisted. While the majority assures us that it is not applying any 'heightened' pleading standard, I have a difficult time understanding its opinion any other way." 550 U.S. at 588 (Stevens, J., dissenting) (footnote omitted).
100. See supra note 77. Of course, the Rules Committee has taken great steps over the last two decades to curtail discovery abuse. See BABCOCK, MASSARO & SPAULDING, supra note 11, at 475-78 (describing evolution of discovery rules).
101. See BABCOCK, MASSARO & SPAULDING, supra note 11, at 330-32 (describing conflicting approaches to Twombly in the lower courts); see also Martinez, supra note 10, at 764 (same).
102. Indeed, in a recent decision declining to expand the scope of the judicially created collateral order doctrine, the Court itself extolled the benefits of the rulemaking process, such as "the opportunity for full airing it provides." Mohawk v. Carpenter, 130 S. Ct. 599, 609 (2009) ("[T]he rulemaking process has important virtues. It draws on the collective experience of bench and bar and it facilitates the adoption of measured, practical solutions."). See also Spencer, supra note 6, at 489 ("[T]he rising cost of complex litigation-particularly in the class action context-is a valid concern and there may be a way that civil pleading standards could be revised to address the issue. [H]owever, the Civil Rules Advisory Committee-in consultation with the entire legal community-would be much better suited to the task. By taking the rules as a whole into account and by balancing the interests of defendants desiring to avoid unwarranted litigation expenses and the interests of plaintiffs pressing potentially valid claims, the Committee is better suited to develop a nuanced solution to address the issue in a targeted fashion. It is in that regard that the Court's new plausibility standard falls short." (footnote omitted)).
103. See supra note 85 and accompanying text.
104. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) ("[Iqbal's] bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a 'formulaic recitation of the elements' of a constitutional discrimination claim As such, the allegations are conclusory and not entitled to be assumed true." (quoting Twombly, 550 U.S. at 555)).
105. To be sure, the Twombly-Iqbal pleading standard will not change the outcome in all, or even most, 12(b)(6) cases. Some complaints will survive scrutiny under either standard, and others will fail both. But in cases where the new standard can make a difference, it almost certainly will, with district courts severely overburdened and often operating without a full complement of judges.
106. 523 U.S. 574 (1998).
107. Id. at 578. I refer to pages 578-79 of the opinion throughout this paragraph.
108. Id. at 582-84. The primary opinion adopted the "clear and convincing evidence" standard. Judge Silberman joined the majority, but criticized the approach as confusing; the better approach for him was to permit "only an objective inquiry into the pretextuality" whenever a "defendant asserts a legitimate motive for his or her action." Crawford-El v. Britton, 93 F.3d 813, 829, 834 (D.C. Cir. 1996) (Silberman, J., concurring). Judge Ginsburg agreed with the clear and convincing standard, but took issue with other aspects of the majority. Id. at 838-39 (Ginsburg, J., concurring). Judge Henderson "fully endorse[d]" the plurality, but thought that en banc review was inappropriate. Id. at 844-46 (Henderson, J., concurring). Five judges rejected the "clear and convincing" standard, concurring only in the judgment to remand. Id. at 847-54 (Edwards, J., concurring in the judgment to remand).
109. Crawford-El, 523 U.S. at 584-85.
110. Crawford-El, 523 U.S. at 585.
111. 457 U.S. 800 (1982).
112. See Crawford-El, 523 U.S. at 815-16 ("[Q]ualified immunity would be defeated if an official knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury." (internal quotations, brackets, and ellipses omitted)).
113. Crawford-El, 523 U.S. ("The subjective element of the good-faith defense frequently has proved incompatible with our admonition that insubstantial claims should not proceed to trial. Rule 56 of the Federal Rules of Civil Procedure provides that disputed questions of fact ordinarily may not be decided on motions for summary judgment. And an official's subjective good faith has been considered to be a question of fact that some courts have regarded as inherently requiring resolution by a jury." (footnote omitted)).
114. Crawford-El, 523 U.S. at 817-18. ("Consistently with the balance at which we aimed in Butz, we conclude today that bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery. We therefore hold that government officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.").
115. Thomas E. O'Brien, The Paradox of Qualified Immunity: How a Mechanical Application of the Objective Legal Reasonableness Test Can Undermine the Goal of Qualified Immunity, 82 TEX. L. REV. 767, 767 (2004) ("Qualified immunity is a judicially created doctrine.").
116. Crawford-El v. Britton, 523 U.S. 574, 588 (1998) ("Our holding [in Harlow] that 'bare allegations of malice' cannot overcome the qualified immunity defense did not implicate the elements of the plaintiff's initial burden of proving a constitutional violation.").
117. Crawford-El, 523 U.S. at 594 ("In fashioning a special rule for constitutional claims that require proof of improper intent, the judges of the Court of Appeals relied almost entirely on our opinion in Harlow, and on the specific policy concerns that we identified in that opinion. As we have explained, neither that case nor those concerns warrant the wholesale change in the law that they have espoused. Neither the text of § 1983 or any other federal statute, nor the Federal Rules of Civil Procedure, provide any support for imposing the clear and convincing burden of proof on plaintiffs either at the summary judgment stage or in the trial itself.").
118. Crawford-El, 523 U.S. at 595.
119. Crawford-El, 523 U.S. at 595-96.
120. Crawford-El, 523 U.S. at 597-600.
121. Crawford-El, 523 U.S. at 600.
122. One way to read Iqbal and Crawford-El harmoniously is to read Iqbal as pointing out a way in which Crawford-El could have lost. That is, the problem with Britton's argument was not that it was too bold, it was that it was too modest: rather than arguing for heightened pleading only in one type of case, Britton could have (successfully, in the Iqbal Court's opinion) argued for heightened pleading across the board. This argument, however, ignores the broader spirit of both decisions, as explained above.
123. Iqbal almost certainly overrules Swierkiewicz v. Sorema N.A. as well. In that opinion, the Court rejected the defendant's argument that dismissal of the plaintiff's complaint under a heightened pleading standard was appropriate because "allowing lawsuits based on conclusory allegations of discrimination to go forward [would] burden the courts and encourage disgruntled employees to bring unsubstantiated suits." 534 U.S. 506, 514-15 (2002). This statement, as well as Swierkiewicz's unabashed endorsement of liberal notice pleading, see id. at 512-14, conflicts with the text and spirit of Iqbal. Of course, this may be another instance of the defendants being too modest in asking for a heightened pleading rule only in employment discrimination cases. See supra note 118.
124. It is possible that Iqbal does not actually have Crawford-El in its sights. That is, one could argue that the Iqbal Court's true concerns are the distractions and diversions created by suits against high-level officials essential to the functioning of government. But to paraphrase one prominent Supreme Court litigator, Iqbal represents a buzz saw, not a scalpel-its holding is not limited to suits against high-level officials, or even to suits against government officials in general. See Transcript of Oral Argument at 39, United States v. Stevens, No. 08-769 (U.S. Oct. 6, 2009). Whatever the Court's concerns, its words have farreaching effects.
125. Former D.C. Circuit Judge Patricia Wald summed the problem up quite aptly, albeit in describing a line of now-overruled D.C. Circuit cases imposing a heightened pleading standard on plaintiffs facing motions for summary judgment on the basis of qualified immunity: After [these cases,] a plaintiff had a tough row to hoe if he wanted to show that a government official had it in for him. Before the plaintiff could engage in any discovery, he had to come up with direct evidence of the officer's unconstitutional motive, and if he did not somehow have independent access to such direct evidence, he would virtually never have the opportunity to conduct discovery and uncover it-the Rule 12(b) dismissal or Rule 56 summary judgment guillotine would fall on his claim then and there. Patricia M. Wald, Summary Judgment at Sixty, 76 TEX. L. REV. 1897, 1923 (1998). See also Elaine M. Korb & Richard A. Bales, A Permanent Stop Sign: Why Courts Should Yield to the Temptation to Impose Heightened Pleading Standards in § 1983 Cases, 41 BRANDEIS L.J. 267, 292 (2002) ("[A] heightened pleading standard erects a hurdle at the pleading stage that most civil rights plaintiffs are unable to clear."). Iqbal may not be the sole culprit here, as "[t]he rate of dismissal in civil rights cases spiked in the four months [after] Twombly." Kendall W. Hannon, Note, Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(b)(6) Motions, 83 NOTRE DAME L. REV. 1811, 1815 (2008) (empirical study establishing that Twombly's greatest effect, at least in the early going, was raising the rates of dismissal in civil rights cases). It is likely that Iqbal will further cement this trend.
126. 456 U.S. 273 (1982). I thank Pamela Karlan for bringing this case to my attention.
127. See 456 U.S. 273 (1982). at 275.
128. 456 U.S. 273 (1982). at 277.
129. See 456 U.S. 273 (1982). at 285-86; see also FED. R. CIV. P. 52(a).
130. Swint, 456 U.S. at 288.
131. Swint. at 291.
132. Swint. at 292.
133. Swint. at 293; see also DeMarco v. United States, 415 U.S. 449, 450 & n.* (1974) (per curiam) ("[F]actfinding is the basic responsibility of district courts, rather than appellate courts.").
134. See supra Part I.A.
135. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009) ("We next consider the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief.").
136. Of course, there is one key difference: the disposition of a motion to dismiss is reviewed de novo, whereas actual factual findings receive deferential review. One might thus read Iqbal as representing some uneasiness with the fact-finding conducted by district courts, in that it gives up to three courts (the district court, the court of appeals, and the Supreme Court) an unfettered opportunity to dismiss a claim at the front end.
137. See, e.g., Wendy N. Davis, Just the Facts, But More of Them, A.B.A. J., Oct. 2007, at 16, 16-17; Spencer, supra note 6, at 448.
138. See, e.g., Spencer, supra note 6, at 481 ("Under plausibility pleading, one has no confidence that a plaintiff's dismissed claim was frivolous or nonmeritorious because it permits the dismissal of complaints that assert wrongdoing, but merely offer supporting factual allegations consistent with-rather than factually suggestive of-liability. Thus, although discovery might reveal facts that prove liability, that opportunity is preemptively foreclosed and the investigation for supporting facts that the rules contemplate never occurs. Indeed, it is a greater shame that discovery is foreclosed in circumstances where the needed supporting facts lie in the exclusive possession of the defendants.").
139. Pullman-Standard v. Swint, 456 U.S. 273, 284 (1982) (internal quotations omitted).
140. See, e.g., Spencer, supra note 6, at 494 ("Ultimately, Twombly raises the pleading bar to a point where it will inevitably screen out claims that could have been proven if given the chance."); Hannon, supra note 121.
141. This result is not necessarily troubling. It is true that an opportunistic plaintiff might add a discriminatory purpose claim to an "ordinary suit" in the hopes of surviving 12(b)(6) and then go on a fishing expedition through the defendant's files. Similarly, there are undeniable social and financial costs to requiring high-level officials to participate in discovery. Desirable or not, though, Iqbal and Twombly represent a decided break from past practice in the Rule 8 and civil rights context, and deserve to be probed for strength as well as weakness. I focus primarily on the latter because it goes largely undiscussed in both cases.
142. This is especially striking because even Rule 9(b), which imposes a heightened pleading standard in some cases, permits "[m]alice, intent, knowledge, and other conditions of a person's mind [to] be alleged generally." FED. R. CIV. P. 9(b) (emphasis added).
143. See Korb & Bales, supra note 121.
144. See supra note 134 and accompanying text.
145. See James J. Park, The Constitutional Tort Action as Individual Remedy, 38 HARV. C.R.-C.L. L. REV. 393, 414 (2003) (describing "the worst forms of government misconduct" as "acts that are clearly unreasonable, malicious or reckless"). Justice Scalia disagrees; in dissenting from Crawford-El and suggesting that "once the trial court finds that the asserted grounds for the official action were objectively valid it [should] not admit any proof that something other than those reasonable grounds was the genuine motive," he added, "[t]his is of course a more severe restriction upon 'intent-based' constitutional torts; I am less put off by that consequence than some may be, since I believe that no 'intent-based' constitutional tort would have been actionable under the § 1983 that Congress enacted." Crawford-El v. Britton, 523 U.S. 574, 612 (1988) (Scalia, J., dissenting).
146. Take, for example, the case of Scott v. Harris, 550 U.S. 372 (2007). The case involved a lawsuit by a motorist rendered quadriplegic after an officer ran him off the road during a high-speed chase. Harris filed a Fourth Amendment suit against the officer and others, alleging, among other things, that Scott used excessive force in violation of the Fourth Amendment. Id. at 375-76. Prior to discovery, Harris knew all of the facts necessary to make out his claim-that Scott was an officer chasing Harris, that Scott had rammed Harris's car, that the ramming caused Harris's injuries. To those facts, Harris had to add little more than an allegation of excessive force.
147. See, e.g., Spencer, supra note 6, at 482.
148. Of course, in truly meritless suits, judges may ignore Twombly and Iqbal altogether. See, e.g., Smith v. Duffey, 576 F.3d 336, 340 (7th Cir. 2009) ("So maybe neither Bell Atlantic nor Iqbal governs here. It doesn't matter. It is apparent from the complaint and the plaintiff's arguments, without reference to anything else, that his case has no merit. That is enough to justify, under any reasonable interpretation of Rule 12(b)(6), the dismissal of the suit."). The more provocative question is whether Twombly and Iqbal will truly result in the dismissal of more frivolous, docket-clogging lawsuits. And that question will now have to be explored in backwards-looking legal scholarship rather than prospective rulemaking proceedings.
149. See, e.g., Buckhannon Bd. & Care Home, Inc. v. W. Va. Dept. of Health & Human Res., 532 U.S. 598 (2001) (holding that to be a "prevailing party" and collect attorney's fees under 42 U.S.C. § 1988, a plaintiff must secure judgment on the merits or a court-ordered consent decree, and dismissing the so-called "catalyst theory," which would permit fee awards where a plaintiff achieves the desired result through a voluntary change in the defendant's conduct). In concurrence, Justice Scalia stated quite bluntly: It could be argued, perhaps, that insofar as abstract justice is concerned, there is little to choose between the dissent's outcome and the Court's: If the former sometimes rewards the plaintiff with a phony claim (there is no way of knowing), the latter sometimes denies fees to the plaintiff with a solid case whose adversary slinks away on the eve of judgment. But it seems to me the evil of the former far outweighs the evil of the latter. There is all the difference in the world between a rule that denies the extraordinary boon of attorney's fees to some plaintiffs who are no less "deserving" of them than others who receive them, and a rule that causes the law to be the very instrument of wrong-exacting the payment of attorney's fees to the extortionist. Id. at 618 (Scalia, J., concurring).
150. Bell Atlantic v. Twombly, 550 U.S. 544, 577 (2007) (Stevens, J., dissenting).
151. See supra note 7.
152. 551 U.S. 89 (2007) (per curiam). In Erickson, the Court reversed a lower court's finding that an in forma pauperis complaint rested on allegations that were too "conclusory." Id. at 89-90. The Court cited Twombly only twice, and for curious, Conley-like propositions: that a complaint "need only 'give the defendant fair notice of what the claim is and the grounds upon which it rests,' " and that "when ruling on a defendant's motion to dismiss, a judge must accept as true all of the factual allegations contained in the complaint." Id. at 93- 94 (ellipsis in original).
153. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (emphasis added) (quoting FED. R. CIV. P. 1).
154. The Rules Committee could respond, either by revising Rule 8 to reflect the standard espoused in Twombly and Iqbal, or by adopting a different standard entirely. Whether they will do so is a different question; they have not yet formulated any response to Twombly. Senator Arlen Specter has been more proactive, introducing a bill designed to revert to the days of Conley. See Notice Pleading Restoration Act, S. 1504, 111th Cong. § 2
155. See supra note 10.