The pleading problem

Stanford Law Review

Volumn 62, Issue 5, 2010, Pages 1293-1360

  Steinman, Adam N ^a  

^a UNIVERSITY OF CINCINNATI   (United States)

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EID: 77952403716     PISSN: 00389765     EISSN: None     Source Type: Journal    
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References (325)

1. FED. R. CIV. P. 8(a)(2) (requiring the complaint to contain "a short and plain statement of the claim showing that the pleader is entitled to relief").
2. See FED. R. CIV. P. 12(b)(6) (authorizing a pre-answer motion to dismiss a claim for "failure to state a claim upon which relief can be granted").
3. 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1357 (3d ed. 2009) ("The basic principles underlying practice on a Rule 12(b)(6) motion are relatively straightforward and have been well established over the years by the case law."). 550 U.S. 544 (2007). 129 S. Ct. 1937 (2009).
4. Conley v. Gibson, 355 U.S. 41, 47 (1957). Toward the close of the twentieth century, judges in the lower federal courts would occasionally attempt to impose stricter pleading standards..
5. Christopher M. Fairman, The Myth of Notice Pleading, 45 ARIZ. L. REV. 987, 988 (2003) (noting the tendency of some lower federal courts to "impose non-Rule-based heightened pleading in direct contravention of notice pleading doctrine");
6. Richard L. Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 COLUM. L. REV. 433, 435 (1986) (noting that "fact pleading... seems to be enjoying a revival in a number of areas in which courts refuse to accept 'conclusory' allegations as sufficient under the Federal Rules"). But such efforts by lower courts were consistently rebuffed by the Supreme Court in unequivocal terms. See infra note 37 and accompanying text.
7. Robert L. Carter, Civil Procedure as a Vindicator of Civil Rights: The Relevance of Conley v. Gibson in the Era of "Plausibility Pleading," 52 HOW. L.J. 17 (2008);
8. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431 (2008).
9. Twombly, 550 U.S. at 556-57.
10. As of March 2010, Twombly had been cited in nearly 24,000 federal decisions- already number seven of all time. See infra app. tbl.1 (ranking the one hundred most- frequently-cited Supreme Court cases in terms of citations by federal courts and tribunals).
11. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950, 1952 (2009).
12. For recent critiques of Iqbal, see, for example, Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REV. 849 (2010); Clermont & Yeazell, supra note 10;
13. Suzette M. Malveaux, Front Loading and Liptak, supra note 9 (stating attorney Mark Herrmann's comment that Iqbal will allow for the dismissal of cases that otherwise would have subjected defendants to millions of dollars in discovery costs)
14. Lynn C. Tyler, Recent Supreme Court Decision Heightens Pleading Standards, Holds Out Hope for Reducing Discovery Costs, 77 U.S.L.W. 2755 (2009);
15. Herrmann, Beck & Burbank supra note 12 (Opening Statement and Closing Statement of Herrmann and Beck); Posting of Ashby Jones to Wall Street Journal Law Blog, Why Defense Lawyers Are Lovin' the Iqbal Decision, http://blogs.wsj.com/law/ 2009/05/19/why-defense-lawyers-are-lovin-the-iqbal-decision/tab/article/ (May 19, 2009 13:07 EST);
16. Posting of Jim Beck & Mark Herrmann to Drug and Device Law Blog, In Praise of "Short & Plain" Pleadings After Twombly and Iqbal (May 28, 2009), http://druganddevicelaw.blogspot.com/2009/05/in-praise-of-short-and-plai n-pleadings.html.
17. For two thoughtful attempts to reconcile the post-Twombly and pre-Twombly approaches to pleading, see Bone, supra note 10, at 883 ("Despite these seemingly contradictory signals, evaluating Twombly's impact on notice pleading is not as difficult as some critics believe. The Court's signals appear conflicting only if one assumes that Twombly substantially tightens pleading requirements. But this assumption is incorrect.")
18. Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. PA. L. REV. 473, 474 (2010) ("Rather than decrying Twombly as a radical departure and seeking to overturn it, this Article instead emphasizes Twombly's connection to prior law and suggests ways in which it can be tamed.").
19. But cf. Bone, supra note 12, at 851 (arguing that "Iqbal's version of plausibility is significantly stricter than Twombly's" because "Iqbal applies a thick screening model that aims to screen weak as well as meritless suits, whereas Twombly applies a thin screening model that aims to screen only truly meritless suits").
20. See infra notes 156-60 and accompanying text (discussing Twombly's treatment of the statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), 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").
21. In Iqbal, for example, plausibility became relevant only because the allegation at paragraph ninety-six of the complaint-that Ashcroft and Mueller "each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to [harsh] conditions of confinement as a matter of policy, solely on account of their religion, race, and/or national origin"-was disregarded as conclusory. See infra notes 126-32 and accompanying text. The Court therefore treated the complaint as making no allegation of discriminatory motive, and proceeded to inquire whether the remaining allegations-standing alone-plausibly suggested discriminatory intent. But if paragraph ninety-six had not been disregarded as conclusory, it would have been accepted as true, without any inquiry into plausibility. See infra notes 138-42 and accompanying text.
22. Two such examples are the employment-discrimination complaint in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), and the negligence complaint in Form 11 of the Federal Rules. As explained infra notes 238-42 & 279-86 and accompanying text, these complaints pass muster because they identify the underlying acts or events (the plaintiff's firing in Swierkiewicz, the plaintiff being struck by a car in Form 11), even though other characteristics of those events (the employer's discriminatory intent in Swierkiewicz, the defendant's negligence in Form 11) are alleged in conclusory fashion. See infra notes 245-66 and accompanying text.
23. See infra Part III.D.
24. FED. R. CIV. P. 8(a)(2).
25. 355 U.S. 41 (1957).
26. Id. at 47.
27. 507 U.S. 163 (1993) (Rehnquist, C.J., writing for a unanimous Court).
28. Id. at 168 (citation omitted). In Leatherman, the plaintiffs had claimed that a municipality was liable under § 1983 for the unconstitutional execution of a search warrant, alleging that the municipality had failed to adequately train the officers involved. Id. at 165.
29. The defendants argued that the complaint was insufficient because the failure-to-train allegation had not been bolstered by additional facts. Id. at 167. The unanimous Court rejected this attempt to impose greater burdens on plaintiffs at the pleadings phase, citing Conley's mandate that "the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim." Id. at 168 (quoting Conley, 355 U.S. at 47).
30. FED R. CIV. P. 84. Indeed, the chief drafter of the original Federal Rules of Civil Procedure-Judge Charles Clark-believed that the sample complaints provided in these forms were "the most important part of the rules" when it comes to illustrating what Rule 8 requires.
31. Charles E. Clark, Pleading Under the Federal Rules, 12 WYO. L.J. 177, 181 (1958) ("What we require [in Rule 8] is a general statement of the case.... We do not require detail. We require a general statement. How much? Well, the answer is made in what I think is probably the most important part of the rules so far as this particular topic is concerned, namely, the Forms.").
32. FED. R. CIV. P. Form 11 ("Complaint for Negligence"), ¶ 2. Before the 2007 restyling of the Federal Rules of Civil Procedure, this form appeared as Form 9 and was drafted slightly differently. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 575-76 (2007) (Stevens, J., dissenting) (quoting what was then Form 9: "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway."); Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 n.4 (2002) (same).
33. 534 U.S. 506.
34. Amended Complaint at ¶ 37, Swierkiewicz v. Sorema N. A., No. 99 Civ. 12272 (S.D.N.Y. Apr. 19, 2000) [hereinafter Swierkiewicz Amended Complaint];
35. Swierkiewicz, 534 U.S. at 514 ("Petitioner alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA.").
36. Swierkiewicz, 534 U.S. at 515 ("[The federal] pleading standard [is] without regard to whether a claim will succeed on the merits."); accord Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ("When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.").
37. Swierkiewicz, 534 U.S. at 511-12 (rejecting as "incongruous" with notice pleading a requirement to allege facts raising an inference of discrimination, because "direct evidence of discrimination" might be unearthed during discovery even though the plaintiff was concededly "without direct evidence of discrimination at the time of his complaint").
38. See infra notes 228-32 and accompanying text.
39. Swierkiewicz, 534 U.S. at 514-15 (recognizing that this approach to pleading would "allow[] lawsuits based on conclusory allegations of discrimination to go forward" but concluding that "[w]hatever the practical merits of this argument, the Federal Rules do not contain a heightened pleading standard for employment discrimination suits").
40. Swierkiewicz, 534 U.S. at 515 (quoting Leatherman v. Tarrant County, 507 U.S. 163, 168 (1993)).
41. See, e.g., FED. R. CIV. P. 9(b) (requiring that a complaint alleging fraud or mistake "state with particularity the circumstances constituting fraud or mistake"); Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) (applying the Private Securities Litigation Reform Act's special pleading standards for certain securities law claims (codified at 15 U.S.C. § 78u-4(b)(2)), which require the complaint to "state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind").
42. See supra note 6.
43. See, e.g., Swierkiewicz, 534 U.S. at 510-15 (2002) (rejecting lower court's imposition of heightened pleading standard for employment discrimination claims); Leatherman, 507 U.S. at 167-68 (rejecting lower court's imposition of heightened pleading standard for civil rights claims against government officials).
44. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 549 (2007). ILEC stands for "Incumbent Local Exchange Carrier." Id. CLEC stands for "competitive local exchange carrier." Id.
45. See Twombly, 550 U.S. at 550-51.
46. Twombly, 550 U.S. at 559.
47. Twombly, 550 U.S. at 548 ("Liability under § 1 of the Sherman Act requires a 'contract, combination, or conspiracy, in restraint of trade or commerce.'" (citation and ellipses omitted)).
48. Twombly, 550 U.S. at 551 (quoting ¶ 51 of the plaintiffs' complaint).
49. Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174, 176, 178 (S.D.N.Y. 2003).
50. Twombly, 550 U.S. at 189.
51. Twombly v. Bell Atl. Corp., 425 F.3d 99, 119 (2d Cir. 2005).
52. See Twombly, 550 U.S. 544, 570 (2007).
53. Twombly, 550 U.S. at 551.
54. Twombly, 550 U.S. at 564; see also id. ("[T]he complaint leaves no doubt that plaintiffs rest their § 1 claim on descriptions of parallel conduct and not on any independent allegation of actual agreement among the ILECs.").
55. Twombly, 550 U.S. at 557.
56. Twombly, 550 U.S. at 556.
57. Twombly, 550 U.S. at 555.
58. Twombly, 550 U.S. at 551 (quoting plaintiffs' complaint).
59. Twombly, 550 U.S. at 550-51 (internal quotation marks omitted).
60. Twombly, 550 U.S. at 553 (quoting Theatre Enter., Inc. v. Paramount Film Distrib. Corp., 346 U.S. 537, 540 (1954)); see also id. at 553-54 ("Even conscious parallelism, a common reaction of firms in a concentrated market that recognize their shared economic interests and their interdependence with respect to price and output decisions is not in itself unlawful." (quoting Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227 (1993) (internal quotation marks omitted))).
61. Twombly, 550 U.S. at 553-54 (emphasis added) (internal citations and quotation marks omitted).
62. Twombly, 550 U.S. at 558 (noting that "proceeding to antitrust discovery can be expensive").
63. Twombly, 550 U.S. at 559.
64. Twombly, 550 U.S. (internal quotation marks omitted).
65. Twombly, 550 U.S. at 563.
66. 355 U.S. 41, 45-46 (1957).
67. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 (2007).
68. Twombly, 550 U.S. at 561 (internal quotation marks omitted).
69. Twombly, 550 U.S. at 556.
70. Twombly, 550 U.S. at 557 (internal quotation marks omitted).
71. Twombly, 550 U.S. at 570.
72. Hoffman, supra note 10, at 1224 ("[F]ollowing Twombly's thundering arrival in 2007, academic interest in the subject [of pleading standards] has been rekindled."); Spencer, supra note 7, at 431 (describing Twombly as "a startling move by the U.S. Supreme Court").
73. Gregory P. Joseph, Federal Litigation-Where Did It Go Off Track?, LITIG., Summer 2008, at 5, 62 ("The Supreme Court also rewrote federal pleading requirements in 2007, without even amending the pleading rules, by issuing its decision in Bell Atlantic Corp. v. Twombly... .").
74. Iqbal v. Hasty, 490 F.3d 143, 155 (2d Cir. 2007) (noting that "[c]onsiderable uncertainty concerning the standard for assessing the adequacy of pleadings has recently been created by the Supreme Court's decision in Bell Atlantic Corp. v. Twombly" and that "[s]ome of [Twombly's] signals point toward a new and heightened pleading standard"), rev'd sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009).
75. Kersenbrock v. Stoneman Cattle Co., No. 07-1044-MLB, 2007 WL 2219288, at *2 n.2 (D. Kan. July 30, 2007) ("[Twombly] deals only with pleading requirements in the highly complex context of an antitrust conspiracy case. It does not announce a general retreat from the notice pleading requirement of FED. R. CIV. P. 8(a).").
76. See Ides, supra note 10, at 631-32 ("[T]he problem confronting the [Twombly] plaintiffs was a self-inflicted wound. In essence, they pled themselves out of court by filing a complaint that alleged a claim unrecognized by the Sherman Act, namely, a claim of anticompetitive parallel conduct.").
77. 551 U.S. 89 (2007) (per curiam).
78. Erickson emphasized 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" and that "[s]pecific facts are not necessary." Id. at 93-94.
79. Ides, supra note 10, at 638-39 ("[F]rom the available records, it appears that Erickson was 'held' pending the decision in Bell Atlantic. One gets the sense, given Erickson's relative lack of 'certworthiness,' that the rapidly prepared and issued Erickson opinion was written as a reassurance that the Bell Atlantic decision had not altered Rule 8(a)(2) pleading principles.").
80. As a per curiam decision issued without oral argument or merits briefing, it is not clear how strong Erickson's precedential effect would be in any event. See EUGENE GRESSMAN, KENNETH S. GELLER, STEPHEN M. SHAPIRO, TIMOTHY S. BISHOP & EDWARD A. HARTNETT, SUPREME COURT PRACTICE 305 & n.94 (9th ed. 2007) (noting that "decisions explained in a written opinion but rendered without full briefing and argument" are "entitled to some weight, but to less than fully articulated decisions" and that "[t]his may mean... no more than that the Justices will follow such holdings when they agree with them, but not otherwise"); see also id. at 349 ("The most controversial form of summary disposition is a per curiam opinion that simultaneously grants certiorari and disposes of the merits at some length... . The parties are given no opportunity to file briefs on the merits or to argue orally before the Court.").
81. 129 S. Ct. 1937 (2009).
82. Twombly, 550 U.S. at 1942.
83. Twombly, 550 U.S. at 1943.
84. Twombly, 550 U.S. at 1942.
85. Twombly, 550 U.S. Iqbal's other claims against Ashcroft and Mueller-including claims for violation of procedural due process-were dismissed on qualified immunity grounds by the lower courts. See Iqbal v. Hasty, 490 F.3d 143, 167-68 (2d Cir. 2007) (directing dismissal of procedural due process claims).
86. Iqbal, 129 S. Ct. at 1943 ("We hold respondent's pleadings are insufficient.").
87. Twombly, 550 U.S. at 1948 (citations omitted).
88. Twombly, 550 U.S. (quoting Pers. Adm'r v. Feeney, 442 U.S. 256, 279 (1979)).
89. Twombly, 550 U.S. (alteration in original) (internal quotation marks omitted) (quoting Feeney, 442 U.S. at 279). Writing for the four dissenters in Iqbal, Justice Souter argued that the majority's analysis overlooked a crucial concession that Ashcroft and Mueller made on the issue of supervisory liability, under which Ashcroft and Mueller agreed "that they would be subject to supervisory liability if they 'had actual knowledge of the assertedly discriminatory nature of the classification of suspects as being "of high interest" and they were deliberately indifferent to that discrimination.'" Id. at 1956 (Souter, J., dissenting) (quoting Brief for the Petitioners at 50, Iqbal, 129 S. Ct. 1937 (No. 07-1015)). Justice Souter argued that in light of "the parties' agreement as to the standard of supervisory liability," the majority should not have "sua sponte decide[d] the scope of supervisory liability here." Id.
90. Twombly, 550 U.S. at 1949 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)) (alteration in original) (citation omitted).
91. Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. at 570).
92. Twombly, 550 U.S. at 1950.
93. Twombly, 550 U.S. at 1949.
94. Twombly, 550 U.S. at 1950.
95. Twombly, 550 U.S. ("When there are well-pleaded factual allegations, a court should assume their veracity... ."). Second Amended Complaint and Jury Demand ¶ 47, Elmaghraby v. Ashcroft, No. 04-CV-1809, 2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005), aff'd in part, rev'd in part sub. nom. Iqbal v. Hasty, 490 F.3d 143 (2d. Cir. 2007), rev'd sub nom. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) [hereinafter Iqbal Complaint]; see also Iqbal, 129 S. Ct. at 1944, 1951 (quoting paragraph 47 of the Iqbal Complaint).
96. Iqbal Complaint, supra note 95, ¶ 69; see also Iqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supra note 95, ¶ 69).
97. Iqbal Complaint, supra note 95, ¶ 96; see also Iqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supra note 95, ¶ The harsh conditions of confinement were described earlier in the complaint. See Iqbal Complaint, supra note 95, ¶¶ 82-95 (alleging that Iqbal and others had been "kept in solitary confinement, not permitted to leave their cells for more than one hour each day with few exceptions, verbally and physically abused, routinely subjected to humiliating and unnecessary strip and body-cavity searches, denied access to basic medical care, denied access to legal counsel, [and] denied adequate exercise and nutrition").
98. Iqbal Complaint, supra note 95, ¶¶ 10-11; see also Iqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supra note 95, ¶¶ 10-11).
99. Iqbal, 129 S. Ct. at 1951 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
100. Twombly, 550 U.S. 101. Id. 102. Id.
101. Twombly, 550 U.S.. at 1952 (quoting Iqbal Complaint, supra note 95, ¶¶ 69-70); see also id. ("But even if the complaint's well-pleaded facts give rise to a plausible inference that respondent's arrest was the result of unconstitutional discrimination, that inference alone would not entitle respondent to relief. It is important to recall that respondent's complaint challenges neither the constitutionality of his arrest nor his initial detention in the MDC.").
102. Twombly, 550 U.S. ("[T]he complaint does not show, or even intimate, that petitioners purposefully housed detainees in the ADMAX SHU due to their race, religion, or national
103. Twombly, 550 U.S. (quoting Iqbal Complaint, supra note 95, ¶ 69). 106. Id. at 1953.
104. Twombly, 550 U.S. (citations omitted) (quoting FED. R. CIV. P. 1) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 554-56 & n.3 (2007)).
105. Spencer, supra note 7, at 431 ("Notice pleading is dead. Say hello to plausibility pleading." (footnote omitted)); see also Bone, supra note 10, at 875 ("Many judges and academic commentators read the decision as overturning fifty years of generous notice pleading practice... .").
106. Iqbal, 129 S. Ct. at 1950.
107. Ides, supra note 10, at 633 ("[I]t is difficult if not impossible to distinguish between the supposedly sufficient 'negligently drove' allegation in [former] Form 9 [now Form 11], where no specific facts of negligence are alleged, and the supposedly inadequate, 'fact-deficient' allegation of an antitrust conspiracy (or any other type of conspiracy)... ."); see also Twombly, 550 U.S. at 576 (Stevens, J., dissenting) (noting that although current Form 11's "asserted ground for relief-namely, the defendant's negligent driving-would have been called a 'conclusion of law' under the code pleading of old[,]... . that bare allegation suffices under a system that 'restrict[s] the pleadings to the task of general notice-giving and invest[s] the deposition-discovery process with a vital role in the preparation for trial'" (alterations in original) (citation omitted)).
108. See Twombly, 550 U.S. at 584-86 (Stevens, J., dissenting) ("[I]n Swierkiewicz, we were faced with a case more similar to the present one than the majority will allow." (citation omitted)); Ides, supra note 10, at 634 ("[A] 'naked' allegation of conspiracy would appear to be on the same footing as the 'naked' allegation of illicit motive as in Swierkiewicz."); Spencer, supra note 7, at 477 (arguing that Twombly "promulgate[d] the very class of pleading standard that it only recently rejected in Swierkiewicz"); see also Beck & Herrmann, supra note 13 ("[W]e have to conclude (and we're not alone) that Swierkiewicz was impliedly overruled [by Iqbal]."); Dodson, supra note 12 ("[Iqbal] did not cite to Swierkiewicz v. Sorema N.A., a discrimination case that may now be effectively overruled.").
109. See, e.g., Epstein, supra note 10, at 72 (arguing that notice pleading "allows the plaintiff to extort a positive settlement in a worthless case, by inaugurating extensive discovery proceedings").
110. See, e.g., Frank H. Easterbrook, Comment, Discovery as Abuse, 69 B.U. L. REV. 635, 638-39 (1989) (noting that the filing of "a sketchy complaint" is sufficient to launch potentially "abusive discovery"); Epstein, supra note 10, at 71 ("The effort to handle the problem of too much discovery boils down in practice to the delicate issue of whether Rule 8, which is directed toward securing the sufficiency of the pleadings, can be brought to bear in cases where the challenge is to the adequacy of the underlying facts."); see also AM.
111. COLL. OF TRIAL LAWYERS & INST. FOR THE ADVANCEMENT OF THE AM. LEGAL SYS., FINAL REPORT 1, 5 (2009) (expressing "concerns that problems in the civil justice system, especially those relating to discovery, have resulted in unacceptable delays and prohibitive expense" and arguing that "[n]otice pleading should be replaced by fact-based pleading"); Beck & Herrmann, supra note 13 ("Liberal discovery is what killed liberal pleading.").
112. See Twombly, 550 U.S. at 559; see also Bone, supra note 10, at 919 ("[Twombly] assumes that the cause of meritless filings is asymmetry of discovery costs and the settlement leverage it confers.").
113. See, e.g., Robert G. Bone, Modeling Frivolous Suits, 145 U. PA. L. REV. 519, 589 (1997) (noting that a strict pleading standard "risks screening out meritorious cases when investigation costs are too high for plaintiffs to obtain the necessary information before filing"); Hoffman, supra note 10, at 1263 ("[B]ecause of information asymmetries, when a heightened pleading standard is imposed, some meritorious cases will not be filed and, further, some that are filed will be dismissed (or settled for marginal value)."); Spencer, supra note 7, at 481 ("[P]lausibility pleading rejects potentially valid, meritorious claims.").
114. See Twombly, 550 U.S. at 586-87 (Stevens, J., dissenting) ("'[I]n antitrust cases, where the proof is largely in the hands of the alleged conspirators, dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly.'" (quoting Hosp. Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 746 (1976)) (citation omitted));
115. Hoffman, supra note 10, at 1261 ("It is not uncommon for information that is needed to demonstrate the existence of a viable claim to lie solely within the exclusive knowledge and control of another.");
116. Marcus, supra note 6, at 468 (noting that a plaintiff may be "unable to provide details because only the defendant possesses such information" and that, therefore, "[t]o insist on details as a prerequisite to discovery is putting the cart before the horse"); Spencer, supra note 7, at 471 ("[R]equiring plaintiffs to offer factual allegations that plausibly suggest liability is a particular burden when key facts are likely obtainable only through discovery... .");
117. Adam N. Steinman, What Is the Erie Doctrine? (And What Does It Mean for the Contemporary Politics of Judicial Federalism?), 84 NOTRE DAME L. REV. 245, 293 (2008) (arguing that plaintiffs might "not have access to the factual information needed to comply with [stricter] pleading standards" because "[i]n many instances, the primary conduct that is the basis for the lawsuit generates a situation where factual details... are purely in the hands of the defendant").
118. Twombly, 550 U.S. at 572 (Stevens, J., dissenting) (noting that the Twombly complaint was dismissed "without so much as requiring [the defendants] to file an answer denying that they entered into any agreement").
119. As Charles Clark, the chief drafter of the original Federal Rules of Civil Procedure, put it: "we cannot expect the proof of the case to be made through the pleadings" because "such proof is really not their function." 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, 977 (1937); see also Spencer, supra note 7, at 483 ("[P]lausibility pleading assigns to complaints a function they cannot truly fulfill.... Among the functions that pleadings are most ineffective at fulfilling is providing courts the ability to determine whether the plaintiff's claims are meritorious or can be proved.").
120. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
121. As Professor Steve Burbank argued in his recent testimony before the Senate Judiciary Committee, this approach invites the same form of "cognitive illiberalism" that scholars have identified elsewhere in the adjudicative process. See Has the Supreme Court Limited Americans' Access to Courts?: Hearing Before the S. Judiciary Comm., 111th Cong. 12-13 (2009), available at http://judiciary.senate.gov/pdf/12-02-09%20Burbank%20Testimony.pdf (Statement of Steven Burbank (citing Dan M. Kahan, David A. Hoffman & Donald Braman, Whose Eyes Are You Going to Believe? Scott v. Harris and the Perils of Cognitive Illiberalism, 122 HARV. L. REV. 837 (2009))). In their article coining this term, Professors Kahan, Hoffman, and Braman critique the Supreme Court's decision in Scott v. Harris, 550 U.S. 372 (2007), which granted summary judgment against a plaintiff who had sued police officers after their pursuit of his vehicle ended in a crash that caused him serious injuries. Kahan, Hoffman & Braman, supra, at 838-41. Because the Scott Court based its reasoning on its viewing of a video recording of the car chase, Kahan, Hoffman, and Braman showed the same video to 1350 individuals. Id. They concluded that "the Court in Scott was wrong to privilege its own view" of the video, id. at 841, based on their data showing that a viewer's perception varied significantly depending on the viewer's personal background, experiences, ideology, values, and sociodemographic characteristics. Id. at 864-81. So too is a judge's perception of a claim's plausibility likely to be shaped by these predispositions, which may not match those of the litigants affected. Statement of Stephen B. Burbank, supra, at 12-13.
122. See supra notes 116-17; see also Hoffman, supra note 10, at 1261-63 ("Why should we trust our judgment as to the... 'implausibility' of the plaintiff's claims when we have denied the claimant any opportunity to gather additional facts of wrongdoing that may otherwise be hidden from view?").
123. Twombly, 550 U.S. at 593-94 n.13 (2007) (Stevens, J., dissenting).
124. See FED. R. CIV. P. 16(c)(2)(F) (authorizing the court to "take appropriate action on... controlling and scheduling discovery"); FED. R. CIV. P. 26(b)(2) (authorizing the court to order limitations on discovery).
125. Easterbrook, supra note 114, at 638 ("Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves."); see also Twombly, 550 U.S. at 560 n.6 (noting that "the hope of effective judicial supervision is slim").
126. See supra notes 88-94 and accompanying text.
127. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).
128. Iqbal Complaint, supra note 95, ¶ 96; see also supra note 97.
129. Iqbal, 129 S. Ct. at 1951 ("To be clear, we do not reject these bald allegations on the ground that they are unrealistic or nonsensical.... It is the conclusory nature of respondent's allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.").
130. Twombly, 550 U.S. ("We next consider the factual allegations in respondent's complaint to determine if they plausibly suggest an entitlement to relief. . Taken as true, these allegations are consistent with petitioners' purposefully designating detainees 'of high interest' because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.").
131. Twombly, 550 U.S. (quoting Iqbal Complaint, supra note 95, ¶ 47). 132. Id. at 1951-52.
132. See Twombly, 550 U.S.. at 1950 (2009) ("Our decision in Twombly illustrates the two-pronged approach."). Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (emphasis added). 135. Id. at 557 (emphasis added).
133. See Iqbal, 129 S. Ct. at 1950 ("[Twombly] first noted that the plaintiffs' assertion of an unlawful agreement was a 'legal conclusion' and, as such, was not entitled to the assumption of truth."). But see Ides, supra note 10, at 635 (arguing that the Twombly holding "did not in any manner depend on the plaintiffs having stated a 'naked' allegation of conspiracy"). Twombly, 550 U.S. at 557. 138. Iqbal, 129 S. Ct. at 1950.
134. See supra note 126 and accompanying text.
135. Iqbal, 129 S. Ct. at 1950 (2009). This Article generally uses the term "nonconclusory" to describe the category of allegations that must be accepted as true at the pleadings phase after Iqbal. Twombly and Iqbal at times use other terms such as "well- pleaded" or "factual." See, e.g., id. (noting the Twombly complaint's "well-pleaded, nonconclusory factual allegation of parallel behavior"). One danger with the term "factual," however, is that it could misleadingly suggest a return to what is often known as "fact pleading." As explained infra note 283 and accompanying text, Twombly and Iqbal should not be read as imposing a traditional fact-pleading or code-pleading regime. The term "factual" could also transplant onto pleading doctrine the problematic "law-fact distinction" that has bedeviled other areas of law. Thornburg, supra note 12, at 5 (criticizing Iqbal as hinging on "label[ing] various issues as law or fact" and noting that "[t]he Supreme Court itself, in other contexts, has confessed that the law-fact distinction is problematic, calling it 'elusive,' 'slippery,' and 'vexing'"); see also Walter Wheeler Cook, Statements of Fact in Pleading Under the Codes, 21 COLUM. L. REV. 416, 417 (1921) ("[T]here is no logical distinction between statements which are grouped by the courts under the phrases 'statements of fact' and 'conclusions of law.'"). That said, the choice of labels is not ultimately dispositive; the terms "nonconclusory," "well-pleaded," and "factual" do not by themselves shed much light on what precisely is required for an allegation to be sufficiently "nonconclusory," "well-pleaded," or "factual." What is needed, rather, is a deeper conceptual understanding of the characteristics an allegation must have in order to be accepted as true at the pleadings phase. This Article confronts this question in Part IV.
136. It is no surprise that the Iqbal majority never says this explicitly, because it concluded that Iqbal had failed to make nonconclusory allegations on each element of his claim. But Justice Souter's dissent, which follows precisely the same doctrinal structure as the majority, illustrates this idea perfectly. He found that Iqbal's allegations were not "confined to naked legal conclusions" and that those allegations, if true, "are sufficient to make [Ashcroft and Mueller] liable." Iqbal, 129 S. Ct. at 1960 (Souter, J., dissenting). He concluded: "Iqbal's complaint therefore contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Twombly, 550 U.S. at 570). In other words, when nonconclusory allegations "are sufficient to make [defendants] liable," the complaint "therefore contains 'enough facts to state a claim for relief that is plausible on its face.'" Id. No secondary inquiry into the plausibility of those nonconclusory allegations is required. Justice Kennedy's majority opinion does not suggest otherwise; again, the difference is simply that the majority found the crucial allegations to be conclusory and thus had to turn to the plausibility inquiry to see whether the claim could nonetheless proceed.
137. Put another way, a court that disregards nonconclusory allegations on plausibility grounds would be disobeying Iqbal step two, because it would not be accepting such allegations as true.
138. See Twombly, 550 U.S. at 565-69; see also Iqbal, 129 S. Ct. at 1950 (noting the Twombly complaint's "well-pleaded, nonconclusory factual allegation of parallel behavior").
139. Iqbal Complaint, supra note 95, ¶ 47; see also Iqbal, 129 S. Ct. at 1951 (quoting the same language from the complaint and describing it as a "factual allegation[]" to be "[t]aken as true").
140. Iqbal Complaint, supra note 95, ¶ 69; see also Iqbal, 129 S. Ct. at 1951 (quoting the same language from the complaint and describing it as a "factual allegation[]" to be "[t]aken as true").
141. See supra notes 143-45.
142. See supra notes 92-94 and accompanying text.
143. See, e.g., Twombly, 550 U.S. at 566 ("[N]othing contained in the complaint invests either the action or inaction alleged with a plausible suggestion of conspiracy. . . [N]othing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each ILEC intent on keeping its regional dominance." (emphasis added)).
144. To illustrate the fallacy of making "implausibility" a basis for disregarding allegations in a complaint, recall the complaint in Twombly. Twombly was dismissed for lack of sufficient allegations showing that the Baby Bells had agreed not to compete with one another. See supra Part I.B. Imagine, however, that the complaint had alleged that the CEOs of each of the Baby Bells reserved a private room at a high-priced restaurant in Bermuda in January 1996, and then alleged a second-by-second transcript of exactly what was said by whom at the meeting as they hatched their conspiratorial regime. Surely such allegations, if accepted as true, would plausibly suggest the existence of a conspiracy. But an open-ended plausibility inquiry could permit the Court to require further allegations to "plausibly suggest" the truth of those allegations, and further allegations to "plausibly suggest" the truth of any additional allegations. This is an unworkable approach. If the plausibility inquiry is what the Twombly and Iqbal majorities say it is-an assessment of whether certain accepted allegations raise a sufficient inference of some other condition's truth-then it cannot also be the test for determining which allegations must and must not be accepted as true.
145. See Achtman v. Kerby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) ("[C]onclusory allegations or legal conclusions... will not suffice to defeat a motion to dismiss." (citation omitted)); Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) ("[T]he court is not required to accept legal conclusions... ."); see also Moya v. Schollenbarger, 465 F.3d 444, 455 (10th Cir. 2006) (describing "the normal standard we apply to dismissals generally" as one that "accept[s] as true all well-pleaded facts, as distinguished from conclusory allegations" (quoting Maher v. Durango Metals, Inc., 144 F.3d 1302, 1304 (10th Cir. 1998))); Rivera-Powell v. N.Y. City Bd. of Elections, 470 F.3d 458, 470 (2d Cir. 2006) (rejecting a "conclusory" allegation).
146. See supra Part II.
147. Even if allegations may not be disregarded for lack of "plausibility" as that concept is used in Twombly and Iqbal, some allegations may be so patently ridiculous that they should not be presumed true at the pleadings phase. Justice Souter alluded to this idea in his Iqbal dissent:
148. See infra Part IV.
149. See supra notes 109-12 and accompanying text.
150. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993). It follows that there is no power to "overrule" the Federal Rules' Forms (including, for example, Form 11), because these Forms are binding as a matter of positive law via the Federal Rules of Civil Procedure. See supra note 26 and accompanying text (explaining how the Rules themselves provide that the Forms "suffice under these rules and illustrate the simplicity and brevity that these rules contemplate").
151. 355 U.S. 41 (1957).
152. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 546, 563 (2007) (quoting Conley, 355 U.S. at 45-46); see also id. at 563 ("The phrase is best forgotten... ."); Spencer, supra note 7, at 463 (stating that Twombly "attempted to isolate and discredit only [Conley's] 'no set of facts' language while simultaneously purporting to retain the notice pleading system largely intact").
153. Twombly, 550 U.S. at 561 (internal quotation marks omitted). The Twombly Court's analysis of Conley's "no set of facts" phrase further confirms that, as discussed above in Part III.A, the principal concern is "conclusory" allegations, rather than not implausible ones. See id. ("On such a focused and literal reading... a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some set of undisclosed facts to support recovery." (emphasis added)).
154. Marcus, supra note 6, at 434 (emphasis added).
155. See also Ides, supra note 10, at 629 (calling Twombly's treatment of the no-set-of- facts language a "sensible 'revision' of Conley").
156. Cf. Twombly, 550 U.S. at 577 (Stevens, J., dissenting) ("If Conley's 'no set of facts' language is to be interred, let it not be without a eulogy.").
157. See Twombly, 550 U.S. at 583 (Stevens, J., dissenting) ("Conley's statement that a complaint is not to be dismissed unless 'no set of facts' in support thereof would entitle the plaintiff to relief is hardly 'puzzling.' It reflects a philosophy that, unlike in the days of code pleading, separating the wheat from the chaff is a task assigned to the pretrial and trial process." (citation omitted)).
158. Cf. Twombly, 550 U.S. at 556 (majority opinion) (citation omitted).
159. Conley, 355 U.S. at 47 (emphasis added) (citing FED. R. CIV. P. 8(a)(2)); see also Twombly, 550 U.S. at 555 ("Federal Rule of Civil Procedure 8(a)(2) requires only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" (quoting Conley, 355 U.S. at 47) (alteration in original)).
160. See Twombly, 550 U.S. at 555-56 & n.3 (citing prior Supreme Court pleading decisions, for example, Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002), and Scheuer v. Rhodes, 416 U.S. 232 (1974)). The Court's Swierkiewicz decision is described supra notes 28-34 and accompanying text.
161. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009) (noting that "Swierkiewicz is based, in part, on Conley" and concluding: "because Conley has been specifically repudiated... so too has Swierkiewicz, at least insofar as it concerns pleading requirements and relies on Conley"). Despite this conclusion, the Third Circuit ultimately reversed the lower court's dismissal of the Fowler complaint. Id. at 211-14. In fact, Fowler's application of Twombly and Iqbal shows a remarkable sensitivity to the principles underlying Swierkiewicz and other aspects of the pre-Twombly regime. See infra notes 300-04.
162. See Swierkiewicz, 534 U.S. at 514 (citing Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
163. Twombly, 550 U.S. at 561.
164. See Swierkiewicz, 534 U.S. at 514 ("[P]etitioner's complaint easily satisfies the requirements of Rule 8(a) because it gives respondent fair notice of the basis for petitioner's claims."); id. ("The[] allegations give respondent fair notice of what petitioner's claims are and the grounds upon which they rest. See Conley, [355 U.S.] at 47.").
165. See supra note 165 and accompanying text.
166. To accept the logic that Twombly repudiated any decision that relied on Conley would lead to the paradoxical conclusion that Twombly repudiated itself, because Twombly also relied on Conley.
167. See supra notes 109-12 and accompanying text.
168. Agostini v. Felton, 521 U.S. 203, 237 (1997) (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989)); see also id. at 238 (noting that the district court was "correct to recognize that the motion had to be denied unless and until this Court reinterpreted the binding precedent"); Scheiber v. Dolby Labs., Inc., 293 F.3d 1014, 1018 (7th Cir. 2002) (Posner, J.) ("[W]e have no authority to overrule a Supreme Court decision no matter... how out of touch with the Supreme Court's current thinking the decision seems."); Nat'l Foreign Trade Council v. Natsios, 181 F.3d 38, 58 (1st Cir. 1999) ("Scholarly debate about the continuing viability of a Supreme Court opinion does not, of course, excuse the lower federal courts from applying that opinion."), aff'd sub nom. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363 (2000); cf. Ides, supra note 10, at 635 ("Of course, the Court is free to overrule any line of cases, but in the absence of an express overruling one should at least be circumspect in concluding that the execution has occurred.").
169. Stare decisis would also require the Supreme Court to try to reconcile its prior decisions if it were to revisit this issue in a later case. See Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 99-100 (1990) (White, J., concurring) ("[T]he doctrine of stare decisis demands that we attempt to reconcile our prior decisions rather than hastily overrule some of them."); Ex parte Harding, 219 U.S. 363, 369-70, 378 (1911) (noting an "apparent conflict between certain decided cases" and concluding that "[w]e must... reconcile the cases [unless] this cannot be done"). Although "stare decisis is not an inexorable command," Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (citation omitted), to deviate from the holdings in pre-Twombly cases (for example, Swierkiewicz and Leatherman) in some future case would require a justification more compelling than "a present doctrinal disposition to come out differently from the [earlier] Court," id. at 864. The need to respect stare decisis is especially strong in cases where the precedent is based on the interpretation of sub- constitutional law such as the Federal Rules of Civil Procedure. See Hilton v. S.C. Pub. Rys. Comm'n, 501 U.S. 197, 202 (1991) (noting that "[c]onsiderations of stare decisis have special force in the area of statutory interpretation," especially in a case where "Congress has had almost 30 years in which it could have corrected our [earlier] decision... if it disagreed with it, and has not chosen to do so" (internal quotations omitted)); see also Spencer, supra note 7, at 462 (arguing that the justifications for strong stare decisis with respect to judicial interpretation of statutes "apply with like force" to judicial interpretation of the Federal Rules).
170. Conley v. Gibson, 355 U.S. 41, 47 (1957).
171. Charles E. Clark, Simplified Pleading, 2 FED. RULES DECISIONS 456, 460 (1943) (emphasis added).
172. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009) (rejecting the argument "that Twombly had repudiated the general notice-pleading regime of Rule 8"). The Brooks court concludes: This court took Twombly and Erickson together to mean that at 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. This continues to be the case after Iqbal. Id. (internal quotations and citations omitted).
173. Some empirical studies reveal an increase in dismissal rates in the years since Twombly and the months since Iqbal, but they also reveal a remarkably high dismissal rate under the ostensibly lenient pre-Twombly pleading regime. See, e.g., Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553, 556 (2010) (presenting data suggesting that the dismissal rate was forty-six percent during the two years prior to Twombly, forty-eight percent during the two years between Twombly and Iqbal, and fifty-six percent after Iqbal). This suggests that even Conley's "fair notice" standard was sufficiently malleable to permit frequent dismissals at the pleadings phase. See supra note 6.
174. See supra note 165 and accompanying text.
175. See, e.g., Steinman, supra note 117, at 297 & 302 n.307 (noting "the conventional wisdom that plaintiffs fare better in state court and defendants fare better in federal court" and citing authority that the Roberts Court "has quickly gained a strong pro-business reputation"). For empirical data, see Kevin M. Clermont & Theodore Eisenberg, Do Case Outcomes Really Reveal Anything About the Legal System? Win Rates and Removal Jurisdiction, 83 CORNELL L. REV. 581, 596 (1998) (noting a very low percentage of plaintiff win rates in removed cases and a significantly higher plaintiff win rate in cases adjudicated originally in federal courts)
176. Thomas E. Willging & Shannon R. Wheatman, Attorney Choice of Forum in Class Action Litigation: What Difference Does It Make?, 81 NOTRE DAME L. REV. 591, 638-40 (2006) (describing higher median recoveries and attorneys fees in state court class actions than in federal court class actions).
177. See supra notes 156-66 and accompanying text.
178. See supra notes 156-57 and accompanying text.
179. Speculation about whether a broader agenda might motivate the Court to make future changes in any given area of law cannot constitute a binding aspect of the Court's case law. The Court's current decisions are binding, not anticipated future decisions or a general sense of the Court's underlying motivations. The principle that lower courts must not decide for themselves that earlier Supreme Court decisions have been implicitly overruled confirms this. See supra notes 173-75 and accompanying text.
180. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007).
181. Bell Atl. Corp. v. Twombly, 550 at 547.
182. Julie Creswell, U.S. Indictment for Big Law Firm in Class Actions, N.Y. TIMES, May 19, 2006, at A1.
183. Lisa L. Casey, Class Action Criminality, 34 J. CORP. L. 153 (2008).
184. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (quoting Ashcroft v. Iqbal, 490 F.3d 143, 179 (2007) (Cabranes, J., concurring))
185. Richard Bernstein, Threats and Responses: Pieces of a Puzzle; On Plotters' Path to U.S., a Stop at bin Laden Camp, N.Y. TIMES, Sept. 10, 2002, at A1 (calling the 9/11 attacks "the deadliest foreign attack on American soil").
186. This is precisely why it is often said-per Justice Holmes-that "hard cases make bad law." N. Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting). A corollary to this maxim might be that one should not read a hard case to make bad law (or to overrule prior case law) if that reading can be avoided. See also supra Part III.B (explaining why lower courts should not read Twombly and Iqbal as implicitly overruling the Supreme Court's pre-Twombly pleading precedent).
187. See supra notes 186 & 189 and accompanying text. Indeed, the Court's concerns about the burdens of discovery in Twombly and Iqbal are closely tied to the factual context of those cases. See Iqbal, 129 S. Ct. at 1953 (noting that avoiding the burdens of "disruptive discovery" is "especially important" in a case where the "Government officials are charged with responding to... a national and international security emergency unprecedented in the history of the American Republic" (citation and internal quotation marks omitted)); id. at 1954 (noting that the lower court's "promise[] [of] minimally intrusive discovery. . . provides especially cold comfort in this pleading context, where we are impelled to give real content to the concept of qualified immunity for high-level officials who must be neither deterred nor detracted from the vigorous performance of their duties"); Twombly, 550 U.S. at 558 (noting that "proceeding to antitrust discovery can be expensive" (emphasis added)); id. at 559 (emphasizing that the Twombly defendants in particular have "many thousands of employees generating reams and gigabytes of business records").
188. An analogy might be drawn to two blockbuster constitutional-law opinions from last decade-Lopez and Morrison-that appeared to place new limits on Congress' power to legislate under the Commerce Clause. See United States v. Morrison, 529 U.S. 598 (2000); United States v. Lopez, 514 U.S. 549 (1995). Lopez and Morrison were thought to reflect a paradigm shift in the Supreme Court's view of Congressional power. See, e.g., Richard W. Garnett, The New Federalism, the Spending Power, and Federal Criminal Law, 89 CORNELL L. REV. 1, 11-13 (2003) (describing a federalism "revival" under the Rehnquist Court that included Commerce Clause decisions such as Lopez and Morrison). But when the Court revisited the issue a few years later, its approach seemed far more consistent with the long- standing pre-Lopez view. See Gonzales v. Raich, 545 U.S. 1 (2005) (upholding Congress' power to criminalize the possession of marijuana for medicinal purposes); David A. Strauss, The Modernizing Mission of Judicial Review, 76 U. CHI. L. REV. 859, 889-90 (2009) (noting that Lopez and Morrison "left the door open for the Court to retreat-as it arguably did, in Gonzales v. Raich"); see also Lino A. Graglia, Lopez, Morrison, and Raich: Federalism in the Rehnquist Court, 31 HARV. J.L. & PUB. POL'Y 761, 780-85 (2008) (arguing that the Court's decision in Raich had "halted, if not reversed" the "Lopez revolution").
189. See supra note 174 and accompanying text.
190. See supra note 126 and accompanying text (describing Iqbal's two steps). 195. FED. R. CIV. P. 8(a)(2) (emphasis added).
191. See Iqbal, 129 S. Ct. at 1951-52 ("On the facts respondent alleges the arrests Mueller oversaw were likely lawful and justified by his nondiscriminatory intent to detain aliens who were illegally present in the United States and who had potential connections to those who committed terrorist acts. As between that obvious alternative explanation for the arrests, and the purposeful, invidious discrimination respondent asks us to infer, discrimination is not a plausible conclusion." (internal quotations and citations omitted)); Twombly, 550 U.S. at 554 (noting that "we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence"); id. at 556 ("Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence."); id. at 566 ("[T]here is no reason to infer that the companies had agreed among themselves to do what was only natural anyway.").
192. See supra Part III.A.
193. See, e.g., Klein v. Ryan, 847 F.2d 368, 374 (7th Cir. 1988) ("[W]e need not accept conclusory allegations completely lacking evidentiary support.").
194. See supra notes 143-49 and accompanying text.
195. See Twombly, 550 U.S. at 565-69; see also Iqbal, 129 S. Ct. at 1950 (noting the Twombly complaint's "well-pleaded, nonconclusory factual allegation of parallel behavior"). 201. See supra notes 53-56 and accompanying text.
196. Iqbal Complaint, supra note 95, ¶ 47; see also Iqbal, 129 S. Ct. at 1951 (quoting same and describing it as a "factual allegation" to be "[t]aken as true"). 203. Iqbal Complaint, supra note 95, ¶ 69; see also Iqbal, 129 S. Ct. at 1951 (quoting same and describing it as a "factual allegation" to be "[t]aken as true"). 204. FED. R. CIV. P. 8(a)(2).
197. FED. R. CIV. P. 8(b)(1)(B); accord FED. R. CIV. P. 8(d)(1) ("Each allegation must be simple, concise, and direct.").
198. FED. R. CIV. P. 10(b).
199. This conceptual problem does not arise for heightened pleading standards like the Private Securities Litigation Reform Act (PSLRA), which requires supporting allegations only for certain types of allegations. See supra note 35. Under the PSLRA, the targeted allegation that the defendant "acted with the required state of mind" must be supported by other allegations that "giv[e] rise to a strong inference," 15 U.S.C. § 78u-4(b)(2) (2006), but the supporting allegations must themselves be accepted as true. To require evidentiary support for every allegation, however, is inherently unworkable.
200. The hypothetical complaint discussed supra note 149 also confirms the fallacy of requiring a complaint to provide evidentiary support for the allegations contained therein. Imagine that the plaintiff in Twombly had alleged that the CEOs of each of the Baby Bells reserved a private room
201. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
202. See, e.g., Epstein, supra note 10, at 62 ("In reality, Twombly... was a disguised motion for summary judgment."); Hoffman, supra note 10, at 1240 ("It is now plain-if it was not already-that Rules 12(b)(6) and 56 are hinged together doctrinally. As [Twombly] saw it, if an antitrust plaintiff's complaint cannot survive summary judgment... then why delay the inevitable?"); Spencer, supra note 7, at 487 ("Twombly endorses parity between the level of scrutiny applied to claims at the Rule 12(b)(6) and Rule 56 stages."); Thomas, supra note 10, at 1857 (noting that Twombly "established [a] standard[] for dismissal at the motion to dismiss stage that [is] similar to the standard for summary judgment").
203. See, e.g., Hoffman, supra note 10, at 1256 ("[T]reating a rigorous pleading sufficiency standard congruently with summary judgment-that is, as nothing more than an earlier but similar stage of judicial gatekeeping-is misguided."); Spencer, supra note 7, at 488 ("[I]t is inappropriate to apply the type of scrutiny applied at the summary judgment stage to the pleadings of litigants that have yet to have access to discovery."). But cf. Epstein, supra note 10, at 82 (arguing that "treat[ing] the [Twombly] defendant's motion to dismiss as though it set up a 'mini-summary judgment'" was a desirable result given the nature of the claim presented in Twombly).
204. FED. R. CIV. P. 11(b)(3).
205. See Spencer, supra note 7, at 470-72.
206. FED. R. CIV. P. 11(b)(3) (emphasis added).
207. See Hoffman, supra note 10, at 1253-54 ("[I]mposing a plausibility requirement at Rule 8(a)(2) is probably close-if not (at least sometimes) equivalent-to the Rule 11(b)(3) proscription against asserting claims for which there is no evidentiary support and no likelihood of evidentiary support after a reasonable opportunity for further discovery.").
208. FED. R. CIV. P. 11(c)(2).
209. FED. R. CIV. P. 11(c)(3). 218. FED. R. CIV. P. 12(b)(6). 219. FED. R. CIV. P. 8(a)(2).
210. See Hoffman, supra note 10, at 1254 ("Rule 11 is a certification and sanctioning rule and not normally the vehicle for dismissing insufficient claims."). Tellingly, the defendant in Leatherman attempted to justify a heightened pleading standard as "consistent with a plaintiff's Rule 11 obligation to make a reasonable prefiling inquiry into the facts," but a unanimous Supreme Court rejected that argument. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 167 (1993).
211. FED. R. CIV. P. 84.
212. FED. R. CIV. P. Form 11, ¶ 2.
213. But cf. Bone, supra note 10, at 886 (arguing that the mere fact a car collided with a pedestrian raises the specter of negligence because "drivers do not usually strike pedestrians when driving with reasonable care, so the probability of negligence conditional on a pedestrian being struck should be quite high"); Spencer, supra note 10, at 27 (arguing that "the surrounding fact of the collision itself creates a presumption of impropriety").
214. See Bone, supra note 10, at 886; Spencer, supra note 10, at 27. 225. FED. R. CIV. P. Form 18, ¶ 3.
215. See supra notes 156-75 and accompanying text.
216. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 509 (2002) (citation and internal quotation marks omitted).
217. Twombly, 550 U.S. at 508 n.1.
218. Twombly, 550 U.S. at 515 (internal quotation marks omitted). 230. Id. at 511.
219. Twombly, 550 U.S. at 511-12.
220. Twombly, 550 U.S. at 511. Twombly professed consistency with Swierkiewicz, but it also noted that the Swierkiewicz complaint had "detailed the events leading to his termination, provided relevant dates, and included the ages and nationalities of at least some of the relevant persons involved with his termination." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Twombly majority did not, however, indicate that such information provided evidentiary support for Swierkiewicz's allegation of discriminatory intent. Id. If that had been Twombly's intention, it is hard to see how the Swierkiewicz complaint passes muster simply by "detail[ing] the events leading to his termination, provid[ing] relevant dates, and includ[ing] the ages and nationalities of at least some of the relevant persons involved with his termination," id., yet it is not sufficient in Iqbal to describe the enormous impact that Ashcroft and Mueller's policies had on Arab Muslim men. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
221. Admittedly, Twombly and Iqbal at times emphasize the likelihood that the plaintiff's allegations will be supported by evidence. See, e.g., Iqbal, 129 S. Ct. at 1949 ("The plausibility standard... asks for more than a sheer possibility that a defendant has acted unlawfully." (emphasis added)); Twombly, 550 U.S. at 556 ("Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement." (emphasis added)). But such language addresses the plausibility of a claim after some crucial allegation is disregarded as conclusory; that language does not shed light on what makes an allegation conclusory in the first instance. As explained above, the distinction between the conclusory inquiry and the plausibility inquiry is vital. See supra Part III.A. Indeed, there is a good reason why courts would be more concerned about supporting evidence when assessing "plausibility" than when assessing "conclusoriness." A nonconclusory allegation is subject to Rule 11's requirement that "factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery." FED. R. CIV. P. 11(b)(3); see also supra note 140 (noting how Iqbal equates "factual" with "nonconclusory"). Thus, Rule 11's enforcement mechanism can police nonconclusory allegations that lack a sufficient likelihood of evidentiary support. But where a crucial element of a claim is alleged in a solely conclusory fashion, the plaintiff has arguably made no "factual contention" that would be subject to Rule 11's requirement that there is or is likely to be supporting evidence. If so, a court must assure for itself-via the plausibility inquiry-that the complaint's nonconclusory allegations "raise a reasonable expectation that discovery will reveal [supporting] evidence." Twombly, 550 U.S. at 556.
222. Other scholars have recognized that pleadings ought to identify the events or transactions underlying the plaintiff's claim. See Ides, supra note 10, at 607-09 (arguing that federal pleading standards include a "Transactional Sufficiency" component that "requires that the pleading contain a factual narrative sufficient to move the underlying claim from the abstract assertion of a right to an assertion that is premised on an actual, identifiable event"); see also 5 WRIGHT & MILLER, supra note 3, § 1202 ("[P]leadings under the rules simply may be a general summary of the party's position that is sufficient to advise the other party of the event being sued upon... .").
223. 544 U.S. 336 (2005).
224. Twombly, 550 U.S. at 346-47 (alteration in original) (internal quotation marks omitted). 237. Id. at 347.
225. Twombly, 550 U.S. at 555.
226. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
227. See FED. R. CIV. P. Form 11, ¶ 2 ("On, at, the defendant negligently drove a motor vehicle against the plaintiff.").
228. See FED. R. CIV. P. Form 18, 2-3.
229. See Swierkiewicz Amended Complaint, supra note 29, ¶ 12 ("Mr. Swierkiewicz is a native of Hungary."), ¶ 13 ("Mr. Swierkiewicz is 53 years old."), ¶¶ 17, 19 (describing the positions the plaintiff held with the defendant), ¶ 37 ("Plaintiff's age and national origin were motivating factors in [the defendant's] decision to terminate his employment."); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("Petitioner alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA.").
230. See infra Part IV.F.
231. This Article's attempts to distinguish the Twombly and Iqbal complaints are not at all intended to find fault with Twombly's or Iqbal's attorneys. In both cases, the complaints were drafted before the Supreme Court's Twombly decision. And the Iqbal complaint was draft ed before the Iqbal majority restricted supervisory Bivens liability
232. Iqbal Complaint, supra note 95, ¶ 96 ("ASHCROFT, MUELLER, SAWYER, RARDIN, COOKSEY, HASTY, ZENK, THOMAS, SHERMAN, LOPRESTI, and SHACKS each knew of, condoned, and willfully and maliciously agreed to subject Plaintiffs to these conditions of confinement as a matter of policy, solely on accou nt of their religion, race, and/or national origin and for no legitimate penological interest.").
233. See infra Part IV.D.
234. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009).
235. This is an important distinction between Iqbal and Swierkiewicz. Because respondeat superior governs employment discrimination claims like those in Swierkiewicz, see, e.g., 42 U.S.C. § 2000e(b) (2006) (defining the term "employer" to include any "person engaged in an industry affecting commerce... and any agent of such a person"), the fact that a plaintiff has been fired for invidious reasons is sufficient to establish a claim against the company, regardless of which person at the company did the firing. This is in contrast to the Bivens claim at issue in Iqbal, for which the individual de fendant's liability depended on that indiv dual's own conduct. See Iqbal, 129 S. Ct. at i 1948.
236. Iqbal Complaint, supra note 95, ¶¶ 47-76.
237. Id. ¶ 69; see also Iqbal, 129 S. Ct. at 1944, 1951 (quoting Iqbal Complaint, supra note 95, ¶ 69).
238. Indeed, the Iqbal majority emphasized that the complaint did not at any point allege that the hold-until-cleared policy was adopted "'because of,' not merely 'in spite of,' its adverse effects upon an identifiable group." Iqbal, 129 S. Ct. at 1951 (quoting Pers. Adm'r of Mass. v. Feeney, 442 U.S. 254, 279 (1979)).
239. See Iqbal Complaint, supra note 95, ¶¶ 80-95. 253. Id. ¶ 96.
240. Twombly, 550 U.S. The allegations that Ashcroft and Mueller "knew of" and "condoned" Iqbal's harsh treatment would likely fail as a matter of law in light of Iqbal's restrictions on supervisory Bivens liability. See supra notes 82-85 and accompanying text.
241. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1951 (2009).
242. Consolidated Amended Class Action Complaint ¶ 39, Twombly v. Bell Atl. Corp.
243. Twombly, 550 U.S. ¶ 51 (emphasis added).
244. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007) (emphasis added) (footnote omitted).
245. Twombly, 550 U.S. at 564-65 (alterations in original) (emphasis added). 263. Id. at 564 (emphasis added).
246. Id. at 555.
247. FED. R. CIV. P. 11(b)(3) (emphasis added) (requiring that such factual contentions be "specifically so identified").
248. Twombly, 550 U.S. at 564 (emphasis added). 267. FED. R. CIV. P. 8(a)(2) (emphasis added).
249. MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 947 (11th ed. 2003). 269. See supra notes 245-66 and accompanying text.
250. COLLEGIATE DICTIONARY, supra note 268, at 947.
251. The textual theory proposed here uses this phrase in precisely the same way as Twombly and Iqbal. Both decisions confirm that Rule 8's requirement that the complaint "show[] that the pleader is entitled to relief" comes into play only at Iqbal step two. See Twombly, 550 U.S. at 557 ("The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects the threshold requirement of Rule 8(a)(2) that the 'plain statement' possess enough heft to 'sho[w] that the pleader is entitled to relief.'" (alteration in original) (quoting FED. R. CIV. P. 8(a)(2))); see also Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009) ("[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not 'show[n]'-'that the pleader is entitled to relief.'" (alteration in original) (quoting FED. R. CIV. P. 8(a)(2))). These quotes do not indicate that this phrase plays any role at Iqbal step one, which is the only aspect of the Iqbal test that allows a court to disregard a complaint's allegations at the pleadings phase. See supra Part III.B.
252. See supra Part III.A.2.
253. See supra notes 88-94 and accompanying text. 274. See supra Part IV.B.
254. See supra Part III.C. 276. FED. R. CIV. P. 8(a)(2).
255. See Clark, supra note 177, at 461 ("[W]hile a useful rule may perhaps be framed in terms of notice, I think the Federal Rules follow a wiser course of stating a still more general and, if you please, more legal requirement-'a short and plain statement of the claim showing that the pleader is entitled to relief.'" (citation and footnote omitted)).
256. See infra notes 310-13 and accompanying text (arguing that notice-giving is one purpose of pleadings and that this Article's proposed pleading standard serves that purpose). 279. See FED. R. CIV. P. Form 11, ¶ 2 ("On, at, the defendant negligently drove a motor vehicle against the plaintiff.").
257. See FED. R. CIV. P. Form 18 ¶¶, 2-3.
258. See Swierkiewicz Amended Complaint, supra note 29, ¶ 37 ("Plaintiff's age and national origin were motivating factors in [the defendant's] decision to terminate his employment."); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) ("Petitioner alleged that he had been terminated on account of his national origin in violation of Title VII and on account of his age in violation of the ADEA.").
259. In a product liability case, for example, this distinction suggests that a complaint is not deficient if it alleges in conclusory terms that an injury-causing product was "defective." Assuming that the complaint identifies the event by which the product caused the injury (e.g., an accident involving the product), the fact that the product was defective is merely a characteristic of something that was involved in that alleged event.
260. Accordingly, Twombly and Iqbal's insistence on "factual" allegations, see supra note 140, should not be read to impose what was traditionally known as "fact pleading" or "code pleading." See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 574 (2007) (Stevens, J., dissenting) (describing how "the [1848] Field Code and its progeny required a plaintiff to plead 'facts' rather than 'conclusions'"). Form 11, for example, would fail under a traditional fact-pleading regime because it does not provide facts to support the allegation that the defendant was indeed driving negligently. Id. at 576 (describing how the earlier version of Form 11 (what was then Form 9) illustrated a break from fact pleading). But Form 11 clearly provides some "facts." It alleges that the defendant drove a vehicle against the plaintiff at a particular time and place. By providing this real-world transactional narrative, Form 11 thus provides sufficient "factual" allegations that it must be accepted as true under Twombly and Iqbal, even though one aspect of the collision (that the defendant was driving "negligently") is described with what "would have been called a 'conclusion of law' under the code pleading of old." Id.
261. This approach is reflected in Rule 9(b)'s command that "[m]alice, intent, knowledge, and other conditions of a person's mind may be alleged generally." FED. R. CIV. P. 9(b). Yet it also explains why the mere ability to allege intent or state of mind "generally" does not mean that every such allegation passes muster. See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1954 (2009) ("Rule 9 merely excuses a party from pleading discriminatory intent under an elevated pleading standard. It does not give him license to evade the less rigid- though still operative-strictures of Rule 8."). The allegation must still be sufficiently tethered to an adequately identified transaction in order to be accepted as true at the pleadings phase. See id. ("Rule 8 does not empower respondent to plead the bare elements of his cause of action, affix the label 'general allegation,' and expect his complaint to survive a motion to dismiss.").
262. Swierkiewicz, 534 U.S. at 514.
263. This line between an event's core content and its qualities or characteristics may not be crystal clear in all cases, but the distinction is not an arbitrary or uncommon one. Indeed, it is fundamental to basic preclusion principles. Res judicata typically bars any future lawsuit that is based on the same events or transactions, irrespective of how those transactions are characterized or what legal theory is used to justify recovery. See, e.g., Kremer v. Chem. Constr. Corp., 456 U.S. 461, 481 n.22 (1982) ("Res judicata has recently been taken to bar claims arising from the same transaction even if brought under different statutes."); 1 RESTATEMENT (SECOND) OF JUDGMENTS § 24(1) (1982) ("[T]he claim extinguished includes all rights... with respect to all or any part of the transaction, or series of connected transactions, out of which the action arose."). This rule reflects the difference between the core content of an event and its qualities or characteristics. If the plaintiff in Form 11 loses his case when he proceeds on a negligence theory, preclusion would bar him from filing a second lawsuit based on an intentional tort theory. If Swierkiewicz loses his case when he proceeds on a theory of age and national-origin-based discrimination, preclusion would bar him from filing a second lawsuit based on a theory that he was fired in retaliation for protected activity under Title VII. See, e.g., Manego v. Orleans Bd. of Trade, 773 F.2d 1, 5, 7 (1st Cir. 1985) (applying a "'transactional' approach to claim preclusion" and holding that res judicata barred an antitrust claim that arose out of the same facts as an earlier claim alleging violations of federal civil rights laws).
264. This recognition explains why the Court reached different results in Iqbal and Swierkiewicz, even though both involved seemingly "conclusory" allegations of discriminatory motive. Iqbal did not conclude that allegations of invidious motive are inherently conclusory unless other allegations in the complaint support the allegation. Rather, Iqbal found the whole of paragraph ninety-six of the complaint (which contained the allegation of invidious motive) to be conclusory. The problem with the Iqbal complaint, as explained above, was uncertainty about Ashcroft and Mueller's individual involvement in a willful and malicious agreement to subject Iqbal to harsh conditions of confinement. See supra notes 245-55 and accompanying text. The Swierkiewicz complaint, by contrast, provided a clear transactional narrative: the plaintiff worked for the defendant, the plaintiff was fired by the defendant, and the plaintiff's age and national origin were motivating factors in his termination. The fact that respondeat superior governs in employment- discrimination claims like Swierkiewicz (unlike the Bivens claim at issue in Iqbal) means that liability does not hinge on the conduct of any one particular individual. See supra note 248 and accompanying text.
265. See FED. R. CIV. P. Form 11, ¶ 2.
266. Swierkiewicz Amended Complaint, supra note 29, ¶¶ 19, 31, 33.
267. See, e.g., Fowler v. UPMC Shadyside, 578 F.3d 203, 211-12 (3d Cir. 2009) (reversing lower court's dismissal despite the Iqbal decision and even though "Fowler's complaint is not as rich with detail as some might prefer"); id. at 213 ("Fowler is not required, at this early pleading stage, to go into particulars about the life activity affected by her alleged disability or detail the nature of her substantial limitations. Her complaint identifies an impairment, of which UPMC allegedly was aware and alleges that such impairment constitutes a disability under the Rehabilitation Act.").
268. With respect to Form 11, it should also be noted that the Forms provide what "suffice[s]" under the Federal Rules, not what is necessary under the Federal Rules. FED. R. CIV. P. 84.
269. FED. R. CIV. P. Form 18, ¶ 3. Form 18 suggests that a complaint in a product liability case should not have to identify with precision each step in a product's chain of distribution. Just as it is sufficient to allege that a patent infringement defendant has been "making, selling, and using electric motors that embody the patented invention," id., it should likewise be sufficient to allege that a product liability defendant made or sold the product in question.
270. This may reflect the entirely sensible notion that the information required to adequately allege a particular occurrence can vary depending on whether that information is likely to be in the plaintiff's possession. See supra note 117. A plaintiff can be expected to know at the time of filing when and where she was struck by an automobile (Form 11), but ought not be expected to know precise details about a defendant's internal production or distribution practices (Form 18).
271. FED. R. CIV. P. Form 17, ¶ 3. 295. FED. R. CIV. P. 9(b).
272. Frederico v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007).
273. ABC Arbitrage Plaintiffs Group v. Tchuruk, 291 F.3d 336, 350 (5th Cir. 2002).
274. See supra note 243-44 and accompanying text.
275. See supra Part III.C. As described above, this uncertainty permitted lower courts to dismiss complaints at a remarkably high rate even before Twombly. See supra note 180. 300. 578 F.3d 203 (3d Cir. 2009). Ironically, this is the same decision that read Twombly and Iqbal as overruling Swierkiewicz. See supra note 167 and accompanying text. 301. Fowler, 578 F.3d at 213; see also id. at 214 ("As we have stated before, standards of pleading are not the same as standards of proof.").
276. Twombly, 550 U.S. at 212 (emphasis added).
277. Twombly, 550 U.S. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). 304. Id.
278. 578 F.3d 574 (7th Cir. 2009).
279. Twombly, 550 U.S. at 582.
280. Twombly, 550 U.S. (emphasis added). The Second Circuit's en banc decision in Arar v. Ashcroft also seems to reflect this approach: 585 F.3d 559, 569 (2d Cir. 2009) (en banc). The Arar dissenters, however, disputed the majority's characterization of Arar's complaint as failing to identify culpable action taken by particular defendants. See id. at 616 (Parker, J., dissenting) ("[Arar] also alleges... that the defendants were personally involved in his mistreatment both in the United States and abroad."); id. at 594 (Sack, J., dissenting) ("[T]he facts of Arar's mistreatment... were pleaded meticulously and in copious detail. The assertion of relevant places, times, and events-and names when known-is lengthy and specific.").
281. It is likely that further refinement of the federal pleading standard cannot meaningfully occur in the abstract, but must rather be done in the context of particular kinds of acts or events and particular claims. Cf. Seiner, supra note 10, at 1041-53 (proposing what complaints in employment discrimination cases ought to contain). Developing such standards on a claim-specific basis might create some tension with the idea that the Federal Rules are "transsubstantive." See generally Burbank, supra note 10 (criticizing "transsubstantivity rhetoric" and arguing that "the foundational assumption [of] transsubstantive rules" limits courts' flexibility in applying the Federal Rules in particular substantive contexts). But even if one continues to insist on a transsubstantive pleading standard, any such standard must ultimately be applied to specific cases and specific claims. What is required to state a claim will naturally depend, at the very least, on what the elements of that claim are. Such an approach would not render the pleading standard fundamentally non-transsubstantive, any more so than the Federal Rules' numerous form complaints undermine the idea of transsubstantivity.
282. See supra Part III.B. Not all courts have heeded this obligation. One example is Hensley Manufacturing v. ProPride, Inc., 579 F.3d 603 (6th Cir. 2009), which upheld the dismissal of a trademark infringement action because "the complaint does not allege facts sufficient to show that ProPride's use of the 'Hensley' name creates a likelihood of confusion as to the source of its products." Id. at 610. This reasoning seems in conflict with Form 18, which permits a patent infringement complaint that alleges nothing more than that the defendant's product "embod[ies] the patented invention." See supra note 225 and accompanying text. An example from the product liability realm is Frey v. Novartis Pharmaceuticals Corp., 642 F. Supp. 2d 787 (S.D. Ohio 2009), which refused to credit plaintiffs' allegation of a design defect because "[t]hey have not alleged any facts that would permit the Court to conclude that there was a defect in the design or formulation of Trileptal." Id. at 795. This reasoning appears to rest on the sort of evidentiary approach to pleading criticized above. See supra Part IV.A.
283. Professor Richard Marcus, for example, describes the three purposes of pleading as (1) "to assure the defendant of notice of the basis for the suit"; (2) to "set the parameters for the ensuing litigation of the case"; and (3) "disposition on the merits," although for "only a small percentage of cases." Richard Marcus, The Puzzling Persistence of Pleading Practice, 76 TEX. L. REV. 1749, 1755-56 (1998). Professor Benjamin Spencer describes pleadings as serving an "instigation function," "framing function," and "filtering function." Spencer, supra note 7, at 490. But cf. Christopher M. Fairman, Heightened Pleading, 81 TEX. L. REV. 551, 554-57 (2002) (arguing that common law and code pleading systems served a number of functions, but under the Federal Rules the "only function" of pleadings is to provide notice).
284. One could even imagine a system that has no meaningful scrutiny at all at the pleadings phase. It could allow a plaintiff to begin a lawsuit merely by notifying a defendant "I'm suing you," and then rely on other pretrial processes to perform the notice-giving, process-facilitating, and merits-screening functions. Such a system would not be fundamentally irrational, but its desirability would depend on how that post-pleading process is structured and implemented.
285. See supra notes 177-80 and accompanying text.
286. To determine whether this quantum of notice is optimal would require considering more than just the notice function. Arguments based on notice alone can be quite slippery. One might even argue that the notice function justifies precisely the kind of strict pleading standard that many attribute to Twombly and Iqbal. The statement that a complaint must "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," Conley v. Gibson, 355 U.S. 41, 47 (1957) (emphasis added), is not implausibly read as requiring the complaint to detail what evidentiary support the plaintiff has for the key allegations. Cf. Bone, supra note 10, at 900-09 (arguing that Twombly's plausibility standard might be justified under a "process-based theory of fairness as reason-giving" that "treats notice as a matter of political morality not contingent on other elements of the system"). Conversely, even a complaint that would fail under this Article's more lenient standard (for example, one that alleges only that "the defendant violated the plaintiffs' rights under Title VII of the 1964 Civil Rights Act") still provides some notice, particularly given the defendant's ability to glean more information from the plaintiff through the disclosure and discovery process. See, e.g., FED. R. CIV. P. 26(a) (initial disclosure requirements); FED. R. CIV. P. 26(b)(1) (allowing discovery into "any nonprivileged matter that is relevant to any party's claim"). Ultimately, then, other purposes of pleading-such as process-facilitation and merits-screening-may do more work in justifying any particular pleading standard as a policy matter.
287. See FED. R. CIV. P. 20.
288. See FED. R. CIV. P. 13(a).
289. See FED. R. CIV. P. 13(g).
290. See FED. R. CIV. P. 14(a)(2)(D). 318. See FED. R. CIV. P. 15(c)(1).
291. See, e.g., WRIGHT & MILLER, supra note 3, § 1202 (arguing that pleadings should "provide some guidance in a subsequent proceeding as to what was decided for purposes of res judicata and collateral estoppel"); Spencer, supra note 7, at 490 (arguing that pleadings should "identify the nature and contours of the dispute for purposes of... res judicata"). As Charles Clark wrote, the complaint ought to "sufficiently differentiate the situation of fact which is being litigated from all other situations to allow of the application of the doctrine of res judicata, whereby final adjudication of this particular case will end the controversy forever." Clark, supra note 177, at 456-57.
292. See supra note 286.
293. FED. R. CIV. P. 12(b)(6).
294. 42 U.S.C. § 2000e-2(a)(1) (2006).
295. This is not to say that the transactional approach proposed here will perfectly weed out unsustainable legal theories at the pleadings phase. If the Form 11 plaintiff were relying on a legally incorrect view of what constitutes "negligent[]" driving (for example, that wearing a green shirt constituted negligence per se), that would not be revealed until the disclosure/discovery phase. See FED. R. CIV. P. Form 11 (deeming it sufficient to allege "On, at, the defendant negligently drove a motor vehicle against the plaintiff").
296. See supra note 313; cf. Clark, supra note 177 ("[R]efer[ring] to the notice function of pleadings... . is a sound approach so far as it goes; but... [i]t cannot be defined so literally as to mean all the details of the parties' claims, or else the rule is no advance.").
297. See, e.g., Lawrence B. Solum, Procedural Justice, 78 S. CAL. L. REV. 181, 228 (2004) (arguing that "the system of pleading should not unduly interfere with decisions on the merits").
298. See supra notes 116-17 and accompanying text; infra Part V.B.
299. See, e.g., FED. R. CIV. P. 16(c)(2) (authorizing the court to, among other things, "take appropriate action on... formulating and simplifying the issues... [and] identifying witnesses and documents"); FED. R. CIV. P. 26(a)(1) (requiring parties to provide "the name and, if known, the address and telephone number of each individual likely to have discoverable information-along with the subjects of that information-that the disclosing party may use to support its claims or defenses" and "a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses"); FED. R. CIV. P. 26(b)(1) (allowing discovery into "any nonprivileged matter that is relevant to any party's claim"); FED. R. CIV. P. 26(f)(2) (requiring parties to "consider the nature and basis of their claims and defenses" when conferring and developing a proposed discovery plan).
300. See supra notes 204-07 and accompanying text. Again, this is not an indictment of all pleading standards that require additional details or supporting evidence. Heightened pleading standards that are directed at discrete issues (such as the PSLRA, see supra note 35) can be sensibly applied; but fatal conceptual problems arise if one seeks to apply such a standard to every allegation in a complaint. See supra note 207.
301. See supra notes 113-22 and accompanying text.
302. As Professor Robert Bone framed the issue, a lenient pleading rule "reduces the risk of an erroneous denial of relief-a false negative-by making it easier for meritorious cases to be brought. But it also increases the risk of an erroneous grant of relief-a false positive-by making it easier for frivolous suits to be filed." Robert G. Bone, The Process of Making Process: Court Rulemaking, Democratic Legitimacy, and Procedural Efficacy, 87 GEO. L.J. 887, 911 (1999) (citation omitted). A strict pleading rule, on the other hand, "reduces the risk of false positives by increasing the filing burden for frivolous suits, but it also increases the risk of false negatives by making filing harder in meritorious suits." Id.
303. Although it is beyond the scope of this Article, stricter pleading requirements might also be applied to defendant's filings, such as answers or notices of removal. See, e.g., Hoffman, supra note 10, at 1246 (recognizing "the possibility that judicial interpretations of pleading and removal could bear relevance to one another"). But see Romantine v. CH2M Hill Eng'r, Inc., No. 09-973, 2009 WL 3417469, at*1 (W.D. Pa. Oct. 23, 2009) (rejecting plaintiff's argument that the language of Twombly "requires that a defendant must set forth more than labels and conclusions in its list of defenses").
304. See supra notes 116-17 & 122 and accompanying text. 333. See id.
305. It is particularly troubling that such dismissals would occur before the defendant has been required to take a factual position on whether the plaintiff's allegations are true. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 572 (2007) (Stevens, J., dissenting) (criticizing the majority for dismissing the Twombly complaint "without so much as requiring [the defendants] to file an answer denying that they entered into any agreement"). This concern implicates more than just abstract fair play. A defendant who merely challenges the adequacy of a plaintiff's complaint via Rule 12(b)(6) makes neither "factual contentions" nor "denials of factual contentions" regarding the plaintiff's claim and, therefore, is not subject to Rule 11's obligations (and potential sanctions) regarding such factual issues. See FED. R. CIV. P. 11(b)(3), (4).
306. See Bone, supra note 10, at 876 ("[S]creening more aggressively at the front door by demanding more from the complaint is just one approach, with its own costs and benefits, and should be evaluated relative to other alternatives.").
307. See supra note 123 and accompanying text.
308. See supra note 124 (quoting FED. R. CIV. P. 16(c)(2)(F) and FED. R. CIV. P. 26(b)(2)).
309. See supra note 125 and accompanying text.
310. WRIGHT & MILLER, supra note 3, § 3914.23; see also Transcript of Oral Argument at 50, Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) (No. 07-1015) [hereinafter Iqbal Oral Argument], available at http://supremecourtus.gov/oral_arguments/argument_transcripts/07-1015.pd f (comment of Justice Alito noting that discovery-management orders are "interlocutory discretionary decision[s] by the trial judge").
311. Admittedly, a judge who is motivated principally by a desire to reduce his or her workload (rather than by an assessment of the likely merits of a particular claim) might have a different preference ordering. Such a judge would be inclined to dismiss a case outright but, failing that, would be unlikely to expend time and energy managing discovery.
312. See generally WRIGHT & MILLER, supra note 3, § 3914.1.
313. See Iqbal Oral Argument, supra note 339, at 61 (comment of Justice Breyer noting that the application of pleading requirements "and every other legal question" depend on judges faithfully implementing the relevant standard).
314. See, e.g., FED. R. CIV. P. 16(c) (authorizing the court to issue orders regarding numerous pretrial matters including "controlling and scheduling discovery"); FED. R. CIV. P. 26(f) (obligating the parties to confer and develop a plan that sets forth the parties' views on how discovery should proceed before the initial scheduling conference with the court).
315. FED. R. CIV. P. 12(d).
316. Twombly, 550 U.S.; see also FED. R. CIV. P. 56(f)(2) ("If a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may... order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken."). Rule 12(d) currently gives judges discretion to refuse to consider matters outside the pleadings; if a judge "exclude[s]" such matters, then he or she is no longer obligated to treat the motion "as one for summary judgment under Rule 56." FED. R. CIV. P. 12(d). Rule 12(d) might be a more robust tool for mitigating discovery costs if appellate courts developed principles to cabin this discretion and thereby require trial judges in more cases to implement what is essentially a form of phased discovery in response to a Rule 12(d) motion.
317. In this sense, the Rule 12(d) method parallels an idea that has been suggested for dealing with the Catch-22 that plaintiffs face under the heightened-pleading reading of Twombly. Some courts have considered whether to allow limited discovery before ruling on a Twombly-based 12(b)(6) motion in order to give the plaintiff an opportunity to discover the information that such a pleading standard would require. See, e.g., In re Graphics Processing Units Antitrust Litig., No. C 06-07417 WHA, 2007 WL 2127577 (N.D. Cal. July 24, 2007); see also Malveaux, supra note 12, at 68 ("[T]he plausibility pleading standard may require that parties take some limited, preliminary discovery at the pleading stage... .").
318. See Hoffman, supra note 10, at 1222-23 (noting the frequency with which Twombly was cited during its first nine months and concluding that "it is not altogether inappropriate to assume defendants are now more regularly urging judges to intercept complaints at the pleading stage"); Spencer, supra note 10, at 11 (arguing that under Twombly "defendants will be emboldened to challenge the sufficiency of claims"). 348. See infra app. tbls.1 & 2.
319. See supra notes 204-07 and accompanying text.
320. See, e.g., Presidio Group, LLC v. GMAC Mortg., LLC, No. 08-05298 RBL, 2008 WL 2595675 (W.D. Wash. June 27, 2008) (dismissing plaintiff's 465-page complaint as violating Rule 8(a) and noting that "'[b]revity is the soul of wit.' [It] is also the soul of a pleading" (quoting WILLIAM SHAKESPEARE, HAMLET act 2, sc. 2)).
321. Consider the complaint in Twombly. The plaintiffs alleged that an agreement to restrain competition existed, but they also included a separate paragraph stating: Consolidated Amended Class Action Complaint, supra note 256, ¶ 42. The Twombly majority, of course, concluded that this allegation was not sufficient factual enhancement. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 568-69 & n.13 (2007). But assume for the moment that this sort of allegation, perhaps in combination with other "enhanc[ing]" snippets, might be enough to satisfy the conventional reading of Twombly/Iqbal. What is accomplished by requiring the complaint to contain such information? Not much. The operative fact for a § 1 Sherman Antitrust Act claim is whether an agreement to restrain competition existed, not whether a defendant's CEO made a comment like this to a newspaper.
322. See supra note 327.
323. See FED. R. CIV. P. 8(b)(1)(B). Using the example supra note 351, it is hard to see what is gained by requiring the defendant to admit or deny whether its CEO "was quoted in a Chicago Tribune article" as saying what the plaintiff alleges. Even if the defendant were to admit such an allegation, that would only establish what the article said, not what the CEO actually said or, more importantly, whether the CEO had in fact engaged in an illegal agreement with fellow telecommunications providers.
324. Even if courts adopt this Article's reading of Twombly and Iqbal (which would preserve the fairly lenient pre-Twombly pleading regime, albeit in a new doctrinal context) the argument that pleading standards must be tightened in order to mitigate discovery costs may simply shift to the federal rulemaking process, see 28 U.S.C. § 2072 (2006), or to Congress.
325. Reprinted with the permission of LexisNexis. Sincere thanks to Patricia Rodriguez at LexisNexis for compiling this information.