A New Look: Dismissal Rates of Federal Civil Claims

Article excerpt

Empirically examining the effect of the Iqbal and 'Twombly decisions on dismissals at the pleading stage.

For most of the last seventy years, the Supreme Court has interpreted the Federal Rules of Civil Procedure to impose on federal-court litigants a civil pleading regime called notice pleading. Under this regime, a civil claim may be dismissed under Rule 12(b)(6) only if legally insufficient - only if the claim could not be maintained under any set of facts. The pleading of facts was necessary only to provide "fair notice" of the claim to the defendant.1

Beginning in 2007, the Supreme Court abruptly changed course by issuing Bell Atlantic Corp. v. Twombly2 and Ashcroft v. Iqbal ',3 which impose a new factual-sufficiency requirement. Under these cases, a court should disregard all "conclusory" allegations (whether of law or fact) and assess the "plausibility" of the claim using the judge's own "judicial experience and common sense." If the judge determines that the complaint does not supply sufficient facts to allow the claim to cross the threshold from the conceivable to the plausible, then the claim should be dismissed under Rule 12(b)(6).

Such a sea change in pleading standards immediately set off alarms in procedural circles. Serious doctrinal, normative, and institutional discussions immediately ensued. But many of those discussions were based, in part, on empirical speculation of what real effects the new pleadings decisions were having on civil claims in the federal district courts.

Commentators obliged by studying the cases' effect. However, because of coding and collection difficulties, those studies have approached data with two problematic methodological choices. The first is that studies have tended to code whole cases rather than claims, leading to the ambiguous coding category of "mixed" dismissals and to problems in characterizing the nature of the dispute. The second is that studies have failed to distinguish between legal sufficiency and factual sufficiency. These methodological choices potentially mask important detail about the effects of the pleadings changes.

This paper begins to fill in that detail. I compiled an original dataset of district court opinions and coded each claim - rather than whole case - subject to an adjudicated Rule 12(b)(6) motion. For each claim, 1 also determined whether the court resolved the motion on grounds of legal or factual sufficiency. This methodology opened an unprecedented level of granularity in the data.

The data reveal statistically significant increases in the dismissal rate overall and in a number of subsets of claims. Prior studies based on cases rather than claims have consistently found modest increases in the dismissal rate but have differed in their findings of statistical significance. My findings, based on claims rather than cases, suggest that the prior studies' case-based coding choices may mask some significance.

I also find an increase in the prevalence and effectiveness of factual-insufficiency arguments for dismissal. Perhaps surprisingly, I find a decrease in the prevalence and effectiveness of legal-insufficiency arguments for dismissal. These data and insights on the rationales of dismissals are new to the literature and suggest that Twombly and Iqbal are affecting both the strategy employed by movants and the rationale for deciding motions to dismiss.

Overall, I find evidence that Twombly and Iqbal are affecting pleading-stage dismissals in federal district courts in a variety of important ways not adequately captured or reflected by prior studies.

This article proceeds as follows: First I offer background on pleading and the previous studies, isolating some of their deficiencies and demonstrating the need for additional study. Then I outline my methodology followed by results. Last I analyze the methodology and results, exploring possible areas for further study.

Civil pleading standards in federal district court

Rule 8(a)(2), which governs most civil pleadings in federal court, requires only "a short and plain statement of the claim showing that the pleader is entitled to relief. …