Twombly, the Federal Rules of Civil Procedure and the Courts

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INTRODUCTION

In 1934, Congress enacted the Rules Enabling Act,1 authorizing the Supreme Court to promulgate uniform rules governing practice and procedure in the federal courts. The Federal Rules of Civil Procedure were thereafter enacted and took effect in 1938.2 A hallmark of the Federal Rules was a liberalization of pleading standards.3 The drafters rejected both the common law model, which required that pleadings sound in a cognizable legal theory of recovery, and pleading rules under the various procedural codes enacted by state legislatures, which generally required a plaintiff to allege facts sufficient to establish a cause of action.4

Rather, the Federal Rules adopted a practice of notice pleading.5 Rule 8(a)(2) simply requires "a short and plain statement of the claim showing that the pleader is entitled to relief."6 The goal of notice pleading was to assure that meritorious claimants got their day in court and that claims would not be dismissed because they were inartfully drafted or because the plaintiff at the time of filing the complaint did not have in hand all facts necessary to prove a cause of action at trial.7 Construing Rule 8(a)(2), nearly two decades after the Rules had been issued, the Supreme Court in Conley v. Gibson8 established the legal standard governing the adequacy of a complaint challenged on a motion to dismiss under Rule 12(b)(6), ruling that a complaint may not be dismissed at the pleading stage "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."9

While Conley has not been without its detractors,10 the Supreme Court has repeatedly reaffirmed the Conley holding11 and, more importantly, rejected any attempts to create judgemade rules of particularity in pleading, ruling that such matters were for the rulemakers-not the courts.12 In the spring of 2007, however, the Supreme Court changed its tune dramatically. In Bell Atlantic Corp. v. Twombly,13 the High Court, reversing the second Circuit, held that a complaint that alleges mere parallel behavior among rival telecommunications companies, coupled with stray statements of agreement that amounted to legal conclusions failed, as a matter of law, to state a claim for an antitrust conspiracy in violation of section 1 of the Sherman Act.14 The Court ruled that in order to withstand a motion to dismiss, an antitrust conspiracy complaint must plead "enough factual matter (taken as true) to suggest that an [unlawful] agreement was made."15 The Court also emphasized that plaintiffs need not set forth detailed factual allegations, but at the same time that "grounds [showing] entitle [ment] to relief require[] more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."16 Rather, a complaint must contain "plausible grounds [from which] to infer an agreement" and allege "enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement."17 The Court expressly "retired" Conley v. Gibson and, in so doing, put an end to notice pleading as it has been understood in the seventy years since the enactment of the Federal Rules of Civil Procedure.18

This Article analyzes the rationale for the Twombly holding and concludes that: (1) the Court's assertion that judges cannot effectively control litigation costs because the parties-not the courts-control claims and defenses as well as the nature and amount of discovery in any given case is contrary to fact; and (2) certain classes of cases may well warrant particularized pleading but that decision should be made by the rulemakers through amendments to the Federal Rules of Civil Procedure and not by judges on an ad hoc basis.

I. TWOMBLY

Twombly arose in the wake of the 1982 break up of AT&T as a result of a consent decree settling a civil antitrust suit commenced by the United States nearly a decade earlier. …