The Pleading Problem
Steinman, Adam N., Stanford Law Review
INTRODUCTION I. FEDERAL PLEADING STANDARDS BEFORE AND AFTER TWOMBLY A. Before Twombly B. The Twombly Decision C. Initial Uncertainty Following Twombly D. The Iqbal Decision II. PLAUSIBILITY'S PROBLEMS III. AFTER IQBAL: FIRST PRINCIPLES A. Beyond Plausibility 1. Taking Iqbal's two steps seriously 2. The irony of the plausibility inquiry B. The Most Significant Pre-Twombly Authorities Remain Good Law C. Is Notice Pleading Dead, or Merely Recast? D. An Explanatory Theory of Twombly and Iqbal IV. TOWARD A NEW PARADIGM: PLAIN PLEADING A. Misreading Twombly and Iqbal: Allegations Do Not Require Evidentiary Support at the Pleadings Phase B. A Transactional Approach C. Rule 8 and the "Plain Statement" Requirement D. Some "Conclusory" Language Is Not Necessarily Fatal E. A Complaint Need Not Provide Extensive Details About the Underlying Events F. The Line-Drawing Challenge V. SITUATING PLEADING STANDARDS IN THE POST-IQBAL ERA A. The Purpose of Pleadings B. Pleading Standards and Discovery Costs CONCLUSION APPENDIX
Pleading standards are essential to the character of a civil justice system. If a plaintiff seeking judicial redress is unable to provide an adequate "statement of the claim" at the pleadings phase, (1) then that claim is effectively stillborn. There will be no court-supervised discovery, no ability to present evidence to a judge or jury, and no hope of obtaining any judicial remedy. The complaint will be dismissed, without even an obligation on the part of the defendant to admit or deny the plaintiff's allegations. (2) For all intents and purposes, that initial pleading is the key to the courthouse door. If pleading standards are too strict, the door becomes impenetrable. But if pleading standards are too lenient, concerns arise that opportunistic plaintiffs without meritorious claims will force innocent parties to endure the burdens of litigation and, perhaps, extract a nuisance settlement from a cost-conscious defendant who would rather pay to make the case go away.
For the first seventy years of the Federal Rules of Civil Procedure, pleading standards were widely viewed as "well established" and "relatively straightforward." (3) But today, federal pleading standards are in crisis, thanks to two recent Supreme Court decisions--Bell Atlantic Corp. v. Twombly (4) in 2007 and Ashcroft v. Iqbal (5) in 2009. Before these decisions, federal courts followed an approach known as notice pleading, because the plaintiff's complaint must merely "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." (6) In Twombly, however, the Supreme Court appeared to endorse a new paradigm--plausibility pleading (7)--that would impose higher burdens on plaintiffs at the pleadings phase. Twombly involved a massive antitrust class action that hinged on whether the defendants had agreed amongst themselves to restrain competition. The Court dismissed the claim because the complaint lacked allegations "plausibly suggesting" that such an agreement had occurred. (8)
Twombly has been so influential that it is already among the most frequently cited Supreme Court decisions of all time. (9) It has garnered considerable scholarly attention as well. (10) The debate over pleading standards that Twombly inspired has only intensified after last Term's five-to-four decision in Ashcroft v. Iqbal. Relying heavily on Twombly, the Iqbal majority dismissed a civil rights complaint filed against former Attorney General John Ashcroft and FBI Director Robert Mueller by a Pakistani man who had been detained during the weeks following the September 11th attacks. Iqbal held that discriminatory animus on the part of Ashcroft and Mueller was "not a plausible conclusion" in light of the complaint's allegations, emphasizing that the inquiry into plausibility is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. …