Assessing Iqbal

Roger M. Michalski

Introduction

In May 2009, the Supreme Court decided Ashcroft v. Iqbal, which transformed federal civil litigation by abolishing notice pleading in favor of “plausibility” pleading.[1] In the short time since then, Iqbal has had a profound impact on civil litigation and the enforcement of individual rights.[2] Iqbal illustrates how procedural rules can affect the kind of cases that are heard in federal courts, as well as the bargaining positions of the parties outside of court. Iqbal is also notable for supplanting the traditional fact-finding role of the jury, thereby redefining the role of the citizenry in the administration of justice.

My main point here is simple: Iqbal has been and continues to be harmful to the enforcement of individual rights and socially beneficial litigation. As a society, we are worse off with Iqbal’s stringent pleading requirement. “Plausibility” pleading in effect denies many valid claims the power of pre-trial discovery and gives judges too much discretion to dismiss claims based on hunches and policy animosity. Congress should act quickly to restore the old notice pleading standard and reform discovery to alleviate the concerns that originally gave rise toIqbal’s holding.

This article assesses Iqbal’s impact. Part I finds that Iqbal predictably denies many plaintiffs with meritorious claims access to the federal courts. This has hindered the enforcement of civil rights, antitrust, consumer protection, employment discrimination, and other laws that benefit the public. Part II examines a range of strategies available to litigants and courts to ameliorate Iqbal’s harmful impact. Unfortunately, none are capable of protecting plaintiffs with meritorious suits from dismissals at the pleading stage. Part III concludes that only legislative action, along the lines currently discussed in Congress, is capable of undoing Iqbal’s harmful impact.

I. Effects

Iqbal builds on the 2007 Supreme Court decision in Bell Atlantic Corp. v. Twombly [3], which abrogated the prior standard for judging the sufficiency of pleading as stated fifty-three years ago in Conley v. Gibson.[4] Under Gibson, pleadings withstood Rule 12(b)(6) motions[5] under “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”[6] Twombly replaced this old rule with a new “plausibility” pleading standard. Under this standard, a complaint must allege “enough facts to state a claim to relief that is plausible on its face” or risk dismissal.[7]

The Twombly decision held that allegations of parallel conduct, without factual evidence of agreement, are insufficient to sustain a claim of anti-competitive conduct under § 1 of the Sherman Act.[8] It was initially unclear whether the new “plausibility” pleading standard would apply only to antitrust cases or to all civil cases in federal courts. In Iqbal, the Supreme Court held that the Twombly “plausibility” standard applies to all civil cases in federal courts.[9]

Under Iqbal, courts are instructed to follow a “two-pronged” approach to 12(b)(6) motions. First, courts must identify “pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.” Second, courts must apply the “plausibility” standard to any remaining well-pleaded factual allegations to “determine whether they plausibly give rise to an entitlement to relief.” The Court elaborated that determining whether a complaint states a plausible claim for relief will be a “context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”[10]

A large part of adjudication in federal courts is constitutional litigation under 42 U.S.C. § 1983 and through so-called “Bivens actions.”[11] Iqbal’s new “plausibility” pleading regime hinders these types of claims. Similarly, employment discrimination suits, antitrust suits, and pro se litigants are also disproportionally affected by Iqbal’s heightened pleading standard. The result is a significant and lamentable decrease in the enforcement of constitutional and civil rights.[12] Beyond decreased enforcement, Iqbal has also increased the subjectivity of pleading dismissals.

a) Decreased Enforcement of Constitutional and Civil Rights

Iqbal revived a debate that accompanied the introduction of the Federal Rules of Civil Procedure sixty years ago: Does notice pleading grant plaintiffs too much access to courts (including discovery) without having to demonstrate sufficient facts to support their cause of action?

Supporters of Iqbal and Twombly point out that notice pleading under Gibson was a low barrier of entry into the federal courts. Once plaintiffs had passed this bar, they were able to utilize the full power of court-sanctioned pre-trial discovery. This created high costs for defendants, even if they were eventually granted a favorable summary judgment motion.[13] In the meantime, so the argument goes, litigious plaintiffs were able to harass defendants through extensive discovery and use pre-trial litigation costs as a bargaining chip to settle non-existing grievances.

Such discovery abuse is a real danger and worthy of attention. However, Iqbal took the wrong approach. “Plausibility” pleading is a poor sorting mechanism to separate valid grievances initially supported by few incriminating facts from invalid grievances principally designed to force defendants into early settlements prior to incurring high litigation costs. For example, the greater factual details demanded byIqbal’s new pleading rules are impossible to satisfy in many civil rights cases, where a plaintiff may observe questionable behavior by the defendant but lack detailed information as to the defendant’s intent. In these cases, plaintiffs often cannot plead essential information with specificity at the beginning of a case without the benefit of discovery. The enforcement of civil rights laws has suffered as a consequence.[14]

In general, progressive litigation agendas are hit hard by the new “plausibility” pleading standard due to the nature of the claims and litigants involved. Many of these cases rely on pre-trial discovery. Twomblyand Iqbal themselves illustrate this point. Twombly concerned allegations in the pleadings of “antitrust conspiracy through . . . parallel conduct.”[15] The plaintiffs alleged a violation of the Sherman Act based on price adjustments of competitors that tracked each other very closely, suggesting that there might be collusion in violation of antitrust laws. Given the inherent secrecy of such conspiracies, potential plaintiffs typically lack access to internal corporate communication that could substantiate antitrust claims. Plaintiffs in such cases are often forced to plead antitrust violations broadly and substantiate their claims through pre-trial discovery. If unsubstantiated, their claims used to be dismissed, simply and effectively, through summary judgment motions.

By requiring factual specificity under Twombly’s “plausibility” pleading standard, the doctrine effectively denies access to federal courts to a broad range of conspiracy claims. This is not just hypothetical. Recently, an SEC civil action against defendants who were allegedly involved in the Bernie Madoff ponzi scheme was dismissed for failure to satisfy the Twombly/Iqbal pleading standard.[16] Twombly protects the inherent secrecy of co-conspirators who now can act with less fear of pre-trial discovery.

Iqbal illustrates the same point, but as applied to civil rights instead of antitrust matters. Iqbal was a civil rights lawsuit brought by Javaid Iqbal, a Muslim male arrested and charged with identity theft and detained in New York in the wake of the September 11, 2001, terrorist attacks. In his complaint, Iqbal alleged that he was identified as a person of “high interest” and segregated with “September 11 detainees” in the special housing unit of a federal prison solely because of his religion, race, and national origin. The Supreme Court ruled on the narrow issue of whether Iqbal’s allegations of discrimination were sufficiently specific to survive a 12(b)(6) motion to dismiss.[17] The Court, overruling the two federal courts below, held by a 5-4 vote that Iqbal’s allegations were inadequate for pleading purposes.[18] Consequently, Iqbal was unable to attain discovery, and the Court did not rule on the merits of his allegations. As a result of the ruling, the government has greater latitude to carry out policies that seem, and potentially are, discriminatory. Conversely, the victims of such programs face greater obstacles when seeking redress for violations of their constitutional rights. Their cases, like Iqbal’s, can now be dismissed much more easily at the pleading stage.

Numerous cases since Iqbal and Twombly further illustrate how the new heightened pleading standard makes it more difficult for a variety of civil rights claims to find a hearing in federal courts. For example, in Monroe v. City of Charlottesville, the Fourth Circuit, citing Iqbal, affirmed the dismissal of a suit asserting claims under the Equal Protection Clause. The local police had approached random African-American men for DNA samples while searching for a serial rapist. The Fourth Circuit found their pleading implausible in light of the lack of evidence that the police were motivated by race.[19]

Iqbal’s impact has been felt in First Amendment claims as well. In Moss v. U.S. Secret Service, the Secret Service, citing safety concerns, relocated a group of peaceful protestors located outside a restaurant where then-President George W. Bush was eating.[20] The Service, however, left a similarly situated group of pro-Bush demonstrators in place, as well as diners inside the restaurant. The anti-Bush protestors sued the Secret Service for violating the First Amendment’s prohibition on viewpoint discrimination, alleging that the agency pursued an unspoken policy of moving only anti-President protestors. The court questioned whether “the plaintiffs’ allegation that the [Secret Service] Agents ordered the relocation of their demonstration because of its anti-Bush message is plausible, not merely possible.”[21] The court admitted that the pleaded facts “do not rule out the possibility of viewpoint discrimination, and thus at some level they are consistent with a viable First Amendment claim . . . .”[22] Nonetheless, the court held that the “factual content contained within the complaint does not allow [the court] to reasonably infer that the Agents ordered the relocation of Plaintiffs’ demonstration because of its anti-Bush message, and it therefore fails to satisfy Twombly and Iqbal.”[23]

Ultimately, Iqbal complicates pleading for all cases where states of mind are in play, as plaintiffs can rarely make anything more than generalized allegations at the pleading stage in such cases. Iqbal did not have an opportunity to observe the defendants’ state of mind, just as the plaintiffs in Twombly did not have an opportunity to observe the state of mind and secret conduct of the alleged antitrust violators. As Professor Howard Wasserman has asked in response to Iqbal:

[H]ow [can] anyone . . . plead defendant’s state of mind anymore without avoiding such conclusory facts . . . what more could he say? [W]hat else could the plaintiff say at the complaint stage? How else could a plaintiff allege that two government officials had implemented and carried out a policy with impermissible discriminatory intent? Absent some discovery and the chance to inquire into the defendants’ thinking when acting (here, in establishing the policies at issue), what words can a plaintiff possibly use to describe that the defendant enacted or approved or acquiesced in a policy knowing (or intending) it to be discriminatory?[24]

Under the “plausibility” pleading regime of Iqbal, meritorious claims involving a defendant’s state of mind are therefore increasingly at risk of dismissal at the pleading stage.

b) Increased Subjectivity

Iqbal’s new “plausibility” pleading standard also makes legal outcomes more subjective. As the Supreme Court made clear, determining whether a complaint states a plausible claim for relief is a highly “context-specific task.” The Court instructed district court judges to use “judicial experience and common sense” when applying Iqbal’s “plausibility” standard.[25] “Plausibility,” as articulated in Iqbal, is thus driven by the subjective experiences and evaluations of the presiding judge.[26] There are few guidelines that constrain the application of the plausibility pleading standard, and it is hard to see how there could be any.

Even if an elaborate regime of common law rules and guidance arises to shape this discretion, district courts under Iqbal will nevertheless retain significant latitude to weigh evidence. In Iqbal, the Supreme Court had to weigh the plausibility of different scenarios concerning the implementation of potentially discriminatory security policies. In the end, the Court found that the government’s explanations as to what occurred were “more likely” than Iqbal’s allegations.[27]

However, assessing which set of facts is more likely to be accurate is not a proper function of the court at the pleading stage. Passing judgment upon an undeveloped factual record invites subjectivity and policy biases. Indeed, even at the summary judgment phase courts do not, and should not, pass judgment on what facts are “more likely.” Instead, courts at the summary judgment phase are asked to determine whether “a reasonable jury” could agree with the non-movant’s interpretation of the facts as revealed in pre-trial discovery.[28] Weighing evidence at the pleading phase, besides clashing with the well-established framework of the Federal Rules of Civil Procedure, also invites subjective judgments.[29] At best, such judgments lead to the dismissal of some valid claims. At worst, they undermine trust in the impartiality of the federal judicial system.

II. Coping Strategies

This part of the article examines a range of strategies available to litigants and courts to ameliorateIqbal’s harmful impact. Unfortunately, none are capable of protecting meritorious claims from dismissal at the pleading stage. The proposals for ameliorating Iqbal’s effects cover a wide spectrum of options and possibilities, each with distinct advantages and pitfalls.

a) Clarifying the Test

Iqbal overruled fifty years of jurisprudence established under Gibson. This has introduced significant confusion and ambiguity into federal pleading. For example, the Sixth Circuit has remarked that “[e]xactly how implausible is ‘implausible’ remains to be seen, as such a malleable standard will have to be worked out in practice.”[30] Similarly, the Second Circuit admitted that it was “proceed[ing] cautiously in light of the rapidly changing contours of the pleadings standard . . . .”[31]

An opinion by Judge Posner in the Seventh Circuit illustrates the current state of confusion. Judge Posner analyzed the Supreme Court’s new “plausibility” pleading regime in Cooney v. Rossiter.[32] Relying on language in Iqbal that stressed that the plausibility determination was context-specific, Judge Posner’s opinion held that “the height of the pleading requirement is relative to circumstances.”[33] Some circumstances, it seems, require courts to raise the pleading bar more or less.

Posner went on to explain that complexity, official immunity, or allegations of conspiracy require a higher pleading bar.[34] However, the court left unspoken whether these three types of cases are the only ones that require a heightened bar for pleading. Could there be more? Or does Iqbal raise the bar on all pleadings and on these three types of cases even more? The court also did not address whether the bar was at the same height for all three types of cases. Do allegations of conspiracy require more or less specific pleadings than allegations that involve immunity? Is the pleading standard different for cases that involve absolute or quasi-absolute immunity? How should a court judge the “complexity” of a case at the pleading phase? Can a plaintiff bind himself to limit the eventual complexity of a case by, for example, stipulating to limited discovery? Would such a stipulation pass constitutional muster? Are state courts bound to follow Iqbal in reverse-Erie cases?[35]

Iqbal requires that courts answer all of these questions (and many more). Until they do, pleadings in federal court will remain uncertain. Meanwhile, lawyers and potential litigants will find it difficult to predict whether their complaints will even survive the pleading stage.

At a minimum, courts should act quickly to clarify the new “plausibility” pleading standard. Unfortunately, this will be a slow and cumbersome process that will likely give rise to uncertainty and circuit splits for years to come.

b) Federal Presuit Discovery

Beyond clarification by the courts, litigants and scholars have attempted to develop innovative techniques to overcome Iqbal’s shortcomings and restore a vibrant civil rights enforcement regime. One of these techniques entails the use of presuit discovery to rectify the initial information imbalances that prevent the enforcement of many civil rights, antitrust, and employment discrimination cases. Iqbalrequires plaintiffs to plead information in these types of cases that is often controlled by the defendants. Plaintiffs usually cannot discover such information until their claim survives a motion to dismiss – precisely what the “plausibility” pleading standard of Iqbal prevents. In theory, presuit discovery could help plaintiffs gather the additional information needed to survive a 12(b)(6) motion.[36] However, Rule 27 of the Federal Rules of Civil Procedure allows for presuit discovery only to “perpetuate testimony” and is not available to discover new facts that may be needed to survive Iqbal’s heightened pleading phase.

Some commentators have argued that, despite the limited authorization of Rule 27, federal district courts are nevertheless empowered to utilize narrow, pre-dismissal discovery to determine plausibility at the pleading stage during the pendency of a motion to dismiss.[37] However, pre-merit discovery is traditionally limited to threshold issues such as class certification, qualified immunity, and jurisdiction.[38] While these pre-merit discovery methods could serve as a model for discovery concerning the plausibility of a complaint, there is no statutory authorization for such a model.

Even so, the lack of statutory guidance has not deterred some courts from allowing discovery beyond the framework of the Federal Rules of Civil Procedure under their “inherent powers.”[39] But courts turn to “inherent powers” only rarely and reluctantly, as they are admonished to exercise such measures “with restraint and discretion.”[40] Moreover, Twombly explicitly rejected “careful case management” discovery because “the success of judicial supervision in checking discovery abuse has been on the modest side.”[41] Similarly, Iqbal makes clear that the new plausibility pleading regime “does not unlock the doors of discovery” for plaintiffs:[42] deficient complaints are “not entitled to discovery, cabined or otherwise.”[43]

Ultimately, widespread use of plausibility discovery would only add to the post-Iqbal confusion where judges exercise broad discretion guided by vague standards. However, Congress could look to presuit discovery as a rough model of how to articulate a clearly defined, narrow, mandatory, pre-pleading discovery stage. Such a proposal would alleviate some of the concerns that prompted the Supreme Court’s rulings in Twombly and Iqbal. Namely, it would reduce the costs of discovery for innocent defendants without denying plaintiffs the information they need to undertake meritorious claims in federal courts.

The downside of this proposal consists in complicating litigation by adding an additional step to many cases. Furthermore, many cases are not amenable to limited plausibility discovery and require full discovery before a reasonable assessment of the case can be made. Finally, if plausibility discovery were allowed, judges might find it impossible to accurately assess the proper scope of such discovery. For all these reasons, federal presuit plausibility discovery is an unlikely immediate solution to Iqbal, and a flawed potential solution for the future.

c) State Presuit Discovery

In contrast to federal pre-merit discovery, many states explicitly authorize extensive presuit discovery. Several states permit presuit discovery for the purpose of drafting a sufficient complaint. For example, courts in Texas frequently allow presuit discovery to strengthen complaints where justice or a “likely benefit” outweigh “the burden or expense” of the discovery request.[44] Similarly, Alabama also has robust presuit discovery procedures regarding “any matter that may be cognizable in any court of this state.”[45] The Alabama Supreme Court construed this rule to allow presuit discovery to determine whether a plaintiff has a reasonable basis for filing a lawsuit.[46]

Plaintiffs concerned with dismissal under Iqbal might try to use state pre-trial discovery to obtain information that could satisfy the “plausibility” pleading regime. These plaintiffs would file their initial claim in state court under more forgiving pleading standards. However, there are several hindrances to creatively exploiting the differences between state and federal civil procedures in this regard. First, not all states allow for presuit discovery. Plaintiffs in states without presuit discovery are thus stuck withIqbal’s pleading regime. Second, even where there are state presuit discovery procedures, they were not designed to circumvent federal procedures, and courts might resent such tactics. Third, even where possible, this method increases litigation costs and burdens on plaintiffs and defendants as it requires plaintiffs to file a claim in state court, move for presuit discovery, attain such discovery, remove to federal court, and then proceed with federal pleading. Fourth, a defendant might deny the plaintiff the benefit of presuit discovery in state court by removing quickly to federal court, followed by a motion to dismiss under Iqbal.[47] For all these reasons, utilizing state presuit discovery to avoid dismissal under Iqbal is infeasible and could lead to undesirable litigation costs.

d) Blunting the Blow

District courts could also give significant leeway for causes of action that hinge on private information controlled by the defendant. As the Second Circuit suggested, the Twombly plausibility standard does not prevent a plaintiff from pleading facts alleged upon information and belief “where the facts are peculiarly within the possession and control of the defendant or where the belief is based on factual information that makes the inference of culpability plausible.”[48] Courts in some circuits might thus blunt the blow of Iqbal by allowing plaintiffs, in limited circumstances, to plead facts with limited documentation where the evidence is within the private possession and control of the defendant. However, this violates the spirit, if not the letter, of Iqbal.

e) The Other Side of the Coin

To diminish the disproportionate effect Iqbal has had on plaintiffs in civil rights, antitrust, and employment discrimination cases, courts should apply Iqbal’s plausibility regime to affirmative defenses as well. Like Gibson before it, Iqbal and Twombly seem to deal only with the standard for pleading claims under Rule 8(a)(2). However, Gibson’s “notice pleading” standard had become the standard for pleading claims and affirmative defenses under the theory that all pleadings are subject to the same requirements under Rule 8.[49] Due to Gibson’s minimal “notice pleading” requirements, courts routinely upheld the sufficiency of token invocation of affirmative defenses in the face of Rule 12(f) motions to strike such defenses. Prior to Iqbal, fair notice was sufficient for complaints and defenses, defendants commonly pleaded boilerplate affirmative defenses, and plaintiffs rarely used Rule 12(f) motions.

Courts truly interested in preventing unnecessary discovery costs should extend the new “plausibility” pleading standard to affirmative defenses.[50] This consistent application of Iqbal and Twombly would thereby force defendants to state their defenses in detail and support them with factual specificity. Because pleadings reveal elements of trial strategy, this would help to level the playing field between, for example, civil rights plaintiffs and defendants.

III. Legislative Action

Legislative action is the most promising avenue to reduce or undo Iqbal’s detrimental impact on the enforcement of civil rights and other socially beneficial litigation. Given the limited and flawed options litigants and courts have available to address the shortcomings of “plausibility” pleading, legislative action is the sole realistic path for relief. Fortunately, Congress is currently considering two bills that would void Iqbal’s impact.

The proposed Notice Pleading Restoration Act provides that federal courts shall not dismiss complaints “except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson.”[51] Similarly, the second bill that Congress is considering expressly bans consideration of whether a plaintiff’s claims are plausible.[52] Instead, the bill provides that a court shall not dismiss a complaint “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.” The bill thus echoes language from Gibson establishing a “no set of facts” notice pleading standard.[53]

Both of these proposed bills would remedy the adverse impact of Iqbal on civil rights, antitrust, and employment discrimination cases. Of course, they would also restore the concerns about discovery abuse that first gave rise to Twombly and Iqbal. However, given the paucity of alternative remedies for Iqbal’s shortcomings, both bills are an improvement on the current state of affairs.

Beyond concerns with discovery expenses, some have argued that overturning Iqbal through legislative action “raises important national security concerns,” because a return to low pleading standards would “provide a new opportunity for terrorists to use our courts to further their goals.” This argument suggests that “loose civil pleading” standards enable “our enemies” to “fish through national security files and documents in an attempt to buttress vague and harassing causes of action.”[54] However, these concerns are unsupported by evidence and exaggerated at best. Prior to Twombly and Iqbal, terrorists probably did not use discovery in civil suits to access national security files. Courts are authorized, well-situated, and motivated to prevent this particular type of discovery abuse.[55] In short, the limited and easily-managed danger of terrorists utilizing civil discovery for nefarious goals is not sufficient to overcome the imperative to remedy the adverse impact of Iqbal.

Alternatively, Congress could provide for different pleading standards for different types of suits. Socially beneficial suits would face a lower bar than other types of suits. For example, civil rights suits under this proposal would be entitled to more lenient pleading standards than run-of-the-mill contract disputes.

Congress might also follow a path suggested by Justice Breyer’s dissent in Iqbal. Breyer wrote that district courts could allow broad access to federal court while protecting defendants from the costs of meritless litigation through “alternative case-management tools” such as managed discovery.[56] Such discovery could proceed either in stages or through careful case management. Although both options would heighten the degree of judicial involvement in discovery processes, the strain on judicial resources is justified by the lower risk of dismissing important civil rights and antitrust cases under Iqbal. Reform proposals aimed at managed discovery will solve the issues that gave rise to Iqbal more efficiently and with fewer harmful side effects than “plausibility” pleading.

Conclusion

Iqbal has had a corrosive impact on the enforcement of civil rights, antitrust protection, consumer protection, and employment discrimination. The case changed long-standing notice pleading standards. Predictably, the creation of the new “plausibility” pleading standard has had a disproportionate impact on progressive litigation agendas.

Plaintiffs and courts have a variety of options to alleviate Iqbal’s negative impact. However, these options are insufficient to remedy Iqbal’s main flaw: “plausibility pleading” is a poor mechanism to sort malicious suits from meritorious suits that initially lack crucial information. Failing this basic criterion,Iqbal has led to the dismissal of potentially valid complaints. The only way to remedy this state of affairs is for Congress to act swiftly and enact legislation that restores notice pleading in federal court.

This does not mean that the concerns over undue discovery costs that gave rise to Twombly and Iqbalwill go unheard. There are numerous potential avenues to reform discovery. There is much that could be said for (and against) these proposals. Scholars, commentators, and Congress should seriously consider them. However, in the meantime, Iqbal’s effects need to be contained, and notice pleading needs to be restored.


[1] 129 S. Ct. 1937 (2009), available at FindLaw.

[2] Iqbal is already among the most frequently cited Supreme Court opinions of all time. In its first year alone, Iqbal has been cited about 8500 times by District Courts and 400 times by Circuit Courts. In comparison, in the last fifty-six years, Brown v. Bd. of Educ. of Topeka, 347 U.S. 483 (1954), available at FindLaw, has been cited about 1200 times by District Courts and 750 times by Circuit Courts. Westlaw search, June 2010. These numbers hide that lawyers, aware of Iqbal’s impact, might forgo pleading causes of actions that would have survived the pleading stage prior to Iqbal.

[3] 550 U.S. 544 (2007), available at FindLaw.

[4] 355 U.S. 41 (1957), available at FindLaw.

[5] Fed. R. Civ. P. 12(b)(6) (“[A] party may assert the following defenses by motion: . . . failure to state a claim upon which relief can be granted . . . .”), available at Cornell Univ. Law Sch.

[6] 355 U.S. at 45–46 (emphasis added) (citation omitted).

[7] 550 U.S. at 570, available at FindLaw.

[8] Id. at 553.

[9] 129 S. Ct. at 1953, available at FindLaw.

[10] Id. at 1950.

[11] In Bivens v. Six Uknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),available at FindLaw, the Court held that an implied cause of action exists for a plaintiff whose constitutional rights were violated by a federal employee, despite the absence of an authorizing statute.

[12] See, e.g., Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?,59 Am. U. L. Rev. 553, 624 (2010) (presenting empirical evidence of a “significantly higher rate” of 12(b)(6) dismissals under Twombley and Iqbal than under Gibson).

[13] See Iqbal, 129 S. Ct. at 1953, available at FindLaw.

[14] Howard M. Wasserman. Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 Lewis & Clark L. Rev., 157, 161 (2010).

[15] Twombly, 550 U.S. at 553, available at FindLaw.

[16] SEC v. Cohmad Sec. Corp., No. 09-CV-5680, 2010 WL 363844 (S.D.N.Y. Feb. 2, 2010), available at justia.com.

[17] See Petition for Writ of Certiorari, Ashcroft v. Iqbal, No. 07-1015, 2008 WL 336225 (2008),available at the Dep’t of Justice (questions presented); Ashcroft v. Iqbal, 128 S. Ct. 2931 (2008) (granting certiorari).

[18] See Iqbal, 129 S. Ct. at 1937, available at FindLaw.

[19] Monroe v. City of Charlottesville, 579 F.3d 380, 388 (4th Cir. 2009), available at FindLaw.

[20] Moss v. U.S. Secret Serv., 572 F.3d 962 (9th Cir. 2009), available at FindLaw.

[21] Id. at 970.

[22] Id. at 971.

[23] Id. at 972.

[24] Howard Wasserman, Iqbal and the Death of Notice Pleading: Part II, PRAWFSBLOG (blog), May 18, 2009.

[25] 129 S. Ct. at 1950, available at FindLaw.

[26] See, e.g., Wasserman, supra note 14, at 159 (“Iqbal is about increased judicial discretion to inquire into and parse the details of complaints, almost certainly producing more 12(b)(6) dismissals, as well as wide variance from case to case, even within the same court.”).

[27] 129 S. Ct. at 1951, available at FindLaw.

[28] See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”), available at FindLaw.

[29] Pamela Atkins, Twombly, Iqbal Introduce More Subjectivity to Rulings on Dismissal Motions, Judge Says, 78 U.S.L.W. 2667 (May 11, 2010).

[30] Courie v. Alcoa Wheel & Forged Prod., 577 F.3d 625, 630 (6th Cir. 2009), available at FindLaw.

[31] Panther Partners Inc. v. Ikanos Commc’ns, Inc., No. 08-3398-cv, 2009 WL 2959883, at *4 (2d Cir. 2009), available at Lexisone.

[32] 583 F.3d 967 (7th Cir. 2009), available at FindLaw.

[33] Id. at 971.

[34] Id.

[35] Cf. Roger M. Michalski, Tremors of Things To Come: The Great Split Between Federal and State Pleading Standards, 120 Yale L. J. Online 109 (2010); Z.W. Julius Chen, Note, Following the Leader:Twombly, Pleading Standards, and Procedural Uniformity, 108 Colum. L. Rev. 1431 (2008).

[36] See Scott Dodson, Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43 (2010).

[37] See, e.g., Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473 (2010) (arguing that the plausibility discovery could be narrowly tailored to the particular allegation at issue and might give plaintiffs the opportunity to obtain the information they need to survive Iqbal in an amended complaint).

[38] See, e.g., Ins. Corp. of Ireland v Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), available at FindLaw.

[39] See, e.g., Natural Gas Pipeline Co. of Am. v. Energy Gathering, Inc., 2 F.3d 1397, 1406 (5th Cir. 1993), available at CourtListener.

[40] Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980), available at FindLaw.

[41] 127 S. Ct. at 1967, available at FindLaw.

[42] 129 S. Ct. at 1950, available at FindLaw.

[43] Id. at 1953–54.

[44] Tex. R. Civ. P. 202.1, 202.4, available at Supreme Court of Texas Online.

[45] Ala. R. Civ. P. 27, available at Alabama Judicial System Information Services.

[46] Ex parte Anderson, 644 So. 2d 961, 964 (Ala. 1994), available at FindLaw. See also Driskill v. Culliver, 797 So. 2d 495, 497–98 (Ala. Civ. App. 2001) (allowing pre-action discovery “to determine whether the plaintiff has a reasonable basis for filing an action”), available at Google Scholar.

[47] See Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. 821, 861 n. 41 (2010).

[48] Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010), available at Google Scholar.

[49] See, e.g., Woodfield v. Bowman, 193 F.3d 354, 362 (5th Cir. 1999) (“An affirmative defense is subject to the same pleading requirements as is the complaint.”), available at Google Scholar.

[50] Currently there is significant confusion among the federal courts concerning this issue. See, e.g.,Charleswell v. Chase Manhattan Bank, N.A., No. 01-119, 2009 WL 4981730 (D.V.I. Dec. 8, 2009) (holding that plausibility pleading does not apply to affirmative defenses); but see Burget v. Capital West Securities, Inc., No. CIV-09-1015-M, 2009 WL 4807619 (W.D. Okla. Dec. 8, 2009) (holding that the plausibility pleading standard applies to defenses).

[51] Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. § 2 (1st Sess. 2009), available atLibrary of Congress. Congress’ reliance on “complaints” raises the intriguing possibility that the “plausibility” pleading standard of Iqbal could still apply to affirmative defenses.

[52] Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. § 2(a) (1st Sess. 2009) (“A court shall not dismiss a complaint . . . on the basis of a determination by the judge that the factual contents of the complaint do not show the plaintiff’s claim to be plausible . . . . ”), available at Library of Congress.

[53] Id. (“A court shall not dismiss a complaint under [Rule 12] unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle the plaintiff to relief.”).

[54] See Sen. Jeff Sessions (R., Ala.), Restoring Justice or Hurting National Security?, Wall Street J.,Dec 6, 2009.

[55] See, e.g., Iqbal, 129 S. Ct. 1937, 1961 (2009) (Breyer, J., dissenting) (citing Iqbal v. Hasty, 490 F.3d 143, 158 (2007)) available at FindLaw.

[56] Id. at 1961–62 (“Neither the briefs nor the Court’s opinion provides convincing grounds for finding these alternative case-management tools inadequate, either in general or in the case before us.”).

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