The Law School Magazine  ·  Fall 2009 : Departments

What happens to notice pleading after Twombly and Iqbal?

By - Fall 2009
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For more than 50 years, it has been black letter law in civil procedure that federal pleading practice requires only “notice pleading.” In 2007, the U.S. Supreme Court muddied the pleading waters with Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), in what appeared to be a renunciation of notice pleading. Last term in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), the Court left no doubt that it intended a permanent change in the federal pleading landscape. Professor Christopher Fairman, one of the nation’s leading experts on federal pleading practice, assesses what is left of notice pleading in the aftermath of Twombly and Iqbal.

What exactly is meant by “notice pleading”?

Federal Rule of Civil Procedure 8 only requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” By design, Rule 8 makes it easier for plaintiffs to bring claims in federal court, avoid dismissals for technicalities as was prevalent under the previous pleading regimes, and focus on adjudication on the merits. This liberal standard gained the “notice pleading” label in Conley v. Gibson, 355 U.S. 41 (1957), with the Court’s articulation that “all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” As a corollary, a claim could 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.”

Are there exceptions to notice pleading?

Yes. Rule 9(b) imposes a heightened pleading burden on claims for fraud or mistake by requiring a party to “state with particularity the circumstances constituting fraud or mistake.” So on paper, the Federal Rules present a simple pleading formula: heightened pleading for fraud and mistake; notice pleading for everything else. In practice, the situation has always been quite different. Courts in every circuit on virtually every type of substantive claim dismiss some plaintiffs for failure to plead additional factual detail. But when the lower courts become too brazen in their fact pleading demands, the Supreme Court has re-affirmed the rubric of the Federal Rules and rejected requirements to plead with greater factual specificity as it did in Leatherman v. Tarrant County, 508 U.S. 223 (1993), with § 1983 suits against municipalities and Swierkiewicz v. Sorema, 534 U.S. 506 (2002), with employment discrimination cases. Then came Twombly.

How did Twombly change this?

Twombly was an antitrust case where the Court upheld the dismissal of a complaint for failure to plead with sufficient factual detail and appeared to eviscerate Conley in the process. Reinterpreting the Conley requirement, the Court opined that the Rules require “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Applied to the Twombly claim, the plaintiff must allege facts “plausibly” suggesting the existence of an illegal agreement to restrain trade. This “plausibility” standard requires “enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement.” The Court added that the oft-quoted Conley language that a complaint shouldn’t 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 entitled him to relief” had “earned its retirement.” Twombly left most proceduralists wondering: was this really the death-knell for notice pleading or just a colorful way of creating an exception for big antitrust cases with conspiracy claims and huge, potential discovery costs? We got our answer this spring with Iqbal.

What is the significance of Iqbal?  

Iqbal involved a civil rights claim by a 9/11 detainee that the attorney general and FBI director orchestrated his unlawful confinement. Applying its new plausibility standard, the Court upheld a dismissal on the grounds that these allegations were not plausible because they were legal conclusions. What guidance does the Court offer to determine which allegations to accept as true and which to discard? This context-specific task “requires the reviewing court to draw on its judicial experience and common sense.”  Iqbal does add clarity on one front; Twombly was no fluke. Rather, Twombly “expounded the pleading standard for all civil actions.”

What does this shift in standards mean for federal pleading practice?

For one thing, the Court introduces uncertainty into what was a relatively settled area of procedure. A bevy of unanswered questions as to the application of the plausibility standard to both pleadings and dismissals will have to be sorted out in the years to come by the lower courts. We can certainly expect to see more motions to dismiss for failure to state a claim based on Twombly/Iqbal. My latest research project is trying to determine whether the lower courts are actually departing from their past practices under notice pleading in resolving these motions. Who knows? Plausibility pleading may turn out to be just as mythical in practice as notice pleading was. Ironically, the courts may not even have the last word. Senator Arlen Specter recently introduced the “Notice Pleading Restoration Act of 2009.” Short and sweet, this bill requires that a “Federal court shall not dismiss a complaint under rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson.” Notice pleading may turn out to be the phoenix of the Federal Rules after all.

Professor Fairman, joined The Ohio State University Moritz College of Law in 2000. He teaches civil procedure, alternative dispute resolution ethics, professional responsibility, and legal writing and analysis. Prior to joining the College, Fairman worked at the law firm of Weil, Gotshal & Manges LLP in Dallas, Texas. He is a former clerk to the Honorable Fortunato P. Benavides, United States Court of Appeals for the Fifth Circuit, and to Honorable J. Woodfin Jones, Texas Court of Appeals for the Third District.