By: Benjamin P. Cooper*
The Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal represent a “philosophical sea change in American civil litigation.” Although the exact meaning of these cases remains the topic of vigorous debate, there is nearly universal agreement that the decisions have “revolutionized the law on pleading” by shifting from a liberal notice pleading regime to a heightened “plausibility” paradigm in which courts are empowered to dismiss complaints that are insufficiently detailed.
Given the importance of these cases, it is not at all surprising that Twombly and Iqbal have produced a torrent of legal scholarship. That scholarship has covered a wide array of topics. Many commentators have criticized the cases, others have attempted to define more precisely what the Supreme Court meant in Iqbal and Twombly, while still others have analyzed the disproportionate impact the decisions are having or may have on particular kinds of cases.
Whatever the approach of these articles, they share one feature: they describe the Iqbal plausibility standard as “novel” in the modern era and nearly devoid of any historical precedent. This Article challenges that conventional wisdom and argues that, although the post-Iqbal era is revolutionary (in the sense that it marks a sharp break with what immediately preceded it), it is not entirely new. Rather, the current pleading regime bears a sharp resemblance to the turbulent period from 1983 to 1993, after Federal Rule of Civil Procedure 11 was amended to combat frivolous litigation and before Rule 11 was revised to its current form. Specifically, the 1983 version of Rule 11 and Iqbal are similar in their motivation, implementation, and effects.
Just as the Supreme Court’s Twombly and Iqbal decisions were motivated by a concern about the costs of litigation, the Advisory Committee amended Rule 11 in 1983 to address “the rising number of civil lawsuits and increasing costs and delay in litigation.” Under the 1983 version of Rule 11 (unlike the current rule), sanctions were mandatory and generally payable to the other side, the rule contained no “safe harbor provision” by which an attorney could withdraw an allegedly frivolous paper with no penalty, and, most significantly for present purposes, attorneys had to certify that any allegations in the complaint were “well grounded in fact.” Although the “well grounded in fact” language was directed at the sufficiency of the lawyer’s prefiling investigation and not to the sufficiency of the complaint, courts used the 1983 version of Rule 11 to dismiss complaints that were not sufficiently specific, and thereby “tighten[ed] the liberal pleading regime” set forth in Rule 8(a). Indeed, commentators criticized the 1983 version of Rule 11 because it “created a risk that the threat of the imposition of sanctions would promote a revival of fact pleading that was antithetical to the spirit (if not the letter) of the Federal Rules of Civil Procedure.” This is precisely what scholars are saying about Iqbal today.
The similarities do not end there, however. The plausibility standard that is the hallmark of the post-Iqbal era was also used from 1983 to 1993. Courts in that period examined the “plausibility” of the complaint as a factor in determining whether a complaint was sanctionable under the 1983 version of Rule 11 and, therefore, subject to dismissal. Thus, through its interpretation of Rule 8 in Iqbal and Twombly, the Supreme Court has achieved something very similar to what the 1983 rulemakers accomplished through Rule 11: courts today, as they did from 1983 to 1993, are using a heightened plausibility standard to review complaints.
Further, the post-Iqbal era is strikingly similar to the 1983–1993 era of pleading in terms of its effects. As an initial matter, Iqbal, like the 1983 version of Rule 11, has spawned massive amounts of litigation seeking clarification of its meaning and copious amounts of scholarship criticizing the courts for imposing a heightened pleading standard that has led to too many complaints being dismissed early in the litigation. Further, commentators are condemning Iqbal in a variety of other ways that echo the criticisms directed at the 1983 version of Rule 11. First, commentators are calling Iqbal a “defendant’s tool,” which is how critics described the 1983 version of Rule 11. Second, a significant criticism of Iqbal is that it is subjective and gives judges too much discretion, which was a major complaint about the 1983 version of Rule 11. Third, critics are condemning Iqbal for having a “chilling effect” on plaintiffs, which was a principal criticism of the 1983 version of Rule 11. Finally, commentators are noticing that Iqbal is having a disproportionate effect on certain kinds of litigation—civil rights and employment discrimination cases in particular—which is the exact same thing that critics were saying about the 1983 version of Rule 11.
That Iqbal has returned us to the 1983–1993 era of pleading is, perhaps, not surprising given the opposition of Justices Scalia and Thomas—two of the five-justice majority in Iqbal—to the 1993 amendment of Rule 11. In opposing those changes, Justice Scalia wrote that the 1983 version of Rule 11 had been so effective in reducing frivolous litigation that “[t]he proposed revision would render the Rule toothless.” Justice Scalia was correct that the 1993 amendment severely weakened Rule 11, but now the Iqbal majority has, in many ways, turned back the clock to 1983.
This Article proceeds chronologically. Part I describes pleading from 1938 until 1983 under the notice pleading regime put in place by the drafters of the Federal Rules of Civil Procedure. Part II surveys the harsh features of the 1983 amendments to Rule 11 and the effect it had on pleading. Part III details the 1993 amendments to Rule 11 that restored notice pleading. Part IV discusses the Twombly and Iqbal decisions and the important ways in which they changed pleading. Part V then explores the significant similarities between the 1983–1993 era of pleading and the post-Iqbal era, including the implications of this historical link.
I. Pleading from 1938 to 1983
Pleading is often described as the “gatekeeper for civil litigation.” At the pleading stage, courts decide which cases will survive and proceed to subsequent stages of litigation, including potentially expensive and time-consuming discovery, and which cases will not. In setting pleading standards, rulemakers concern themselves primarily with balancing two competing concerns: (1) “citizen access to the justice system and merit adjudications based on the full disclosure of relevant information”—which weigh in favor of more liberal pleading standards—and (2) concerns about combating abusive and frivolous lawsuits—which weigh in favor of more restrictive standards. Efforts to strike the right balance between these goals is the dominant theme in the story of pleading in the modern era, and, as the Iqbal saga shows, that tension continues today.
The primary goal of the drafters of the original 1938 Federal Rules of Civil Procedure was to liberalize pleading standards. By promulgating those rules, the Supreme Court launched the modern era of notice pleading, ending “centuries of dispute over the words the plaintiff needed to say to start a lawsuit.” Before the enactment of the Federal Rules of Civil Procedure, pleadings had to lay out the issues in dispute and state facts “in considerable detail.” Moreover, courts frequently dismissed complaints because of technicalities.
By contrast, under the new system of notice pleading, the drafters of the rules made clear that “[n]o technical form[s of pleadings and motions are] required,” and a complaint would be sufficient under Rule 8 if it contained “a short and plain statement of the claim showing that the pleader is entitled to relief.” The rulemakers showed “just how serious [they] were about simplifying pleading” when they attached forms to the rules that demonstrated “how very little was required of plaintiffs.” “Form 11 sets forth a vehicular-negligence claim in thirty-seven words, achieving this brevity in part by blessing the use of conclusory terms: ‘[T]he defendant negligently drove a motor vehicle. . . . As a result, the plaintiff was physically injured . . . .’”
In the landmark 1957 case of Conley v. Gibson, the Supreme Court embraced the concept of “notice pleading,” making clear that “the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim.” Instead, the Court said, a complaint is sufficient as long as it “give[s] the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Further, the Court uttered its famous statement (which the Twombly Court “retired”): “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.”
This notice-pleading standard made “starting a lawsuit unsupported by evidence very easy.” The “motivating theory” behind this liberal pleading standard was that “the stages subsequent to pleading—disclosure, discovery, pretrial conferences, summary judgment, and trial—could more efficiently and fairly handle functions such as narrowing issues and revealing facts.”
The original drafters of the Federal Rules included Rule 11—a specific provision governing attorney conduct—with the goal of increasing attorney responsibility to the court, but it was essentially a dead letter during this time period and therefore had no impact on Rule 8’s liberal pleading standard. The earliest version of Rule 11 provided that an attorney’s signature on a pleading or motion constituted a certification that the attorney had “read the pleading, motion, or other paper; that to the best of his knowledge, information and belief there [was] good ground to support it; and that it [was] not interposed for delay.” Commentators criticized the rule for its lack of detail and clarity—particularly the subjective “good ground to support” language. This imprecise language created confusion in the courts over the standard of conduct expected of lawyers, the kinds of pleadings and motions that should trigger Rule 11, and the range of available sanctions. As a result of this confusion, courts rarely imposed sanctions. Nevertheless, this ineffective rule remained unchanged for forty-five years until the 1983 amendments.
Thus, from 1938 to 1983, particularly in the years following the Supreme Court’s decision in Conley, the simple notice pleading standard held sway. That changed with the 1983 amendments to Rule 11.
II. Pleading from 1983 to 1993
Increasing concerns about “costs and delay that often accompany contemporary civil litigation in the federal courts” led to a series of changes to the federal rules in 1983, including substantial changes to Rule 11. In particular, the Advisory Committee intended the new Rule 11 to address the “rising number of civil lawsuits and increasing costs and delay in litigation, the perceived ineffectiveness of existing sanctions rules in preventing dilatory and abusive practices, and the unwillingness of courts to impose theretofore discretionary sanctions.” As set forth below, although the changes to Rule 11 were not necessarily directed at pleading, they nevertheless had a dramatic impact on pleading.
The 1983 Amendments to Rule 11 included seven major changes, three of which merit discussion. First and most importantly, “the significance of the certification requirement was sharpened, and its scope was broadened.” The new signature requirement provided that the attorney or party
has read the [document]; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
The Advisory Committee suggested a number of criteria for courts to consider in assessing the reasonableness of the attorney’s inquiry. Of particular note, one of those standards directed courts to consider “whether the pleading, motion, or other paper was based on a plausible view of the law.”
Although this change in Rule 11 was directed at the sufficiency of the lawyer’s prefiling investigation and not at the complaint itself, it also had a dramatic effect on pleading; specifically, it “was quite obviously (albeit indirectly) intended to constrain the sweeping scope of Rule 8(a).” On its face, the amended Rule 11 was in direct conflict with Rule 8(a). Rule 8(a)’s liberal notice pleading standard—requiring only that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief”—deliberately “avoids mention of ‘facts’ or ‘causes of action.’” By contrast, the 1983 version of Rule 11 required that lawyers conduct a prefiling investigation to establish that, among other things, any allegations in the complaint were “well grounded in fact.” In other words, Rule 8(a) largely deemphasized the need for lawyers to include facts in their complaint—remember that Form 11 stated a vehicular-negligence claim in thirty-seven words—while the 1983 version of Rule 11 required that lawyers investigate the specific factual and legal bases for the complaint. Thus, the 1983 version of Rule 11 articulated “a standard for avoiding sanctions that require[d] a complaint to specify legal and factual bases to a fuller extent than that necessary to survive a motion to dismiss.”
Rule 11 did not actually change the pleading standard—it cannot, since Rule 8 governs pleading—but the amended Rule 11 did change the way lawyers drafted their complaints. With the specter of Rule 11 sanctions hanging over their heads, plaintiffs’ lawyers pled with more specificity. Their fear was warranted. While some courts rightly rejected the notion that Rule 11 had any impact on the pleading requirements of Rule 8, many courts nevertheless used Rule 11’s “well grounded in fact” language to dismiss complaints that were not sufficiently specific, and thereby “tighten[ed] the liberal pleading regime” set forth in Rule 8(a). As a result, “Rule 11’s duty of reasonable inquiry seemed to affect the accepted standard for pleading under Rule 8(a).” This caused commentators to criticize the rule because it “created a risk that the threat of the imposition of sanctions would promote a revival of fact pleading that was antithetical to the spirit (if not the letter) of the Federal Rules of Civil Procedure.”
Significantly, in judging whether a lawyer had met his duty of reasonable inquiry under Rule 11, the courts, following the Advisory Committee’s suggested standards, used plausibility as a touchstone. As the Supreme Court noted, the standard for determining the appropriateness of Rule 11 sanctions is “whether, at the time the attorney filed the pleading or other paper, his legal argument would have appeared plausible.” Thus, foreshadowing today’s post-Iqbal practice, courts sanctioned lawyers who brought claims that were not “plausible.”
A second significant amendment to Rule 11 was to make sanctions mandatory, so that district courts were required to impose sanctions if they determined that a violation had occurred. In a third important change, the amended rule explicitly authorized the district court to grant attorneys’ fees and costs for violating the rule. Indeed, although the 1983 version of the rule authorized the district courts to impose a wide variety of “appropriate sanctions,” attorneys’ fees became the “Rule 11 sanction of choice.” Thus, in most cases, when a court found that a lawyer had violated Rule 11, it ordered fee-shifting not otherwise available in the American legal system.
These three changes—the new certification standard that put pressure on lawyers to plead with greater specificity, combined with the significant economic incentive to bring a Rule 11 motion and the mandate to the courts to sanction all violations of the rule—”dramatically altered the conduct of lawyers litigating in federal court” in several respects. First, the amendments caused Rule 11’s “invocation and application” to become “pervasive.” Lawyers, particularly defense counsel, “routinely” filed Rule 11 motions “to force their adversaries to justify the factual and legal bases underlying motions and pleadings,” and courts were therefore inundated with “satellite” Rule 11 litigation.
Second, perhaps most significantly for present purposes, the 1983 version of Rule 11 affected parties’ substantive rights. Specifically, it “harmed plaintiffs, particularly public interest and civil rights plaintiffs” by “chill[ing] vigorous advocacy.” Several empirical studies concluded that sanctions were being imposed “disproportionately against plaintiffs, particularly in certain types of litigation such as civil rights, employment discrimination, securities fraud cases brought by investors, and antitrust cases brought by small companies.” Moreover, the primary focus of sanctions was the complaint, which formed the basis of 50% of the requests for sanctions according to one study, and 57.8% of the requests for sanctions according to another.
This empirical evidence led to widespread criticism that the 1983 version of the rule was having a dramatic chilling effect on plaintiffs’ lawyers by causing them to decide not to bring arguably meritorious cases. While it is difficult to determine how many attorneys declined to bring meritorious cases because of Rule 11, some studies attempted to analyze that question. In one 1988 study, 20% of surveyed lawyers reported that they refrained from bringing an arguably meritorious case because they were concerned about sanctions.
In addition to the empirical evidence of Rule 11’s chilling effect,
A great deal of anecdotal evidence exists indicating that a large number of judges, including those who previously were less than zealous in prodding the parties before them, began citing the 1983 version of Rule 11 in pre-trial conferences and other proceedings (on or off the record) in order to remind litigants of their ethical obligations and that monetary consequences might follow violations of the rule.
Similarly, courts frequently warned “plaintiffs whose claims were dismissed with leave to amend that they would be subject to sanctions if the amended complaint did not correct the factual or legal deficiencies that led to dismissal.”
By the early 1990s, some commentators concluded that the courts had begun to apply Rule 11 less harshly, particularly in certain kinds of cases, but the 1983 version of Rule 11 continued to produce a tidal wave of criticism that eventually pushed the rulemakers to amend the rule.
III. The 1993 Amendments to Rule 11 and the Return to Notice Pleading
In 1993, rulemakers, “motivated by a desire to curb some of the perceived excesses surrounding Rule 11 motion practice under the 1983 version of the rule,” substantially amended Rule 11 to its current form. As a result of these changes, “[t]here is no doubt that Rule 11 got some of its teeth pulled.”
First, the 1993 amendments made sanctions discretionary rather than mandatory. This change was “important, because it was a signal to courts and litigants that they should be less zealous in using Rule 11 in cases where there were relatively minor infractions of the rule.”
Second, the amendments added a “safe harbor” provision by which the party seeking Rule 11 sanctions must serve the motion on the offending attorney and allow that attorney twenty-one days to withdraw the offending paper before filing the sanctions motion with the court. Through this provision, the drafters of the amendments aimed to “mitigate Rule 11’s chilling effect” and “encourag[e] the withdrawal of papers that violate the rule without involving the district court” thereby reducing Rule 11 litigation.
Third, the revisions shifted the purpose of sanctions from compensation to deterrence, thereby “chang[ing] the emphasis with regard to the types of sanctions to be ordered by the district court.” Specifically, the new rule provides that “[a] sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated.” Thus, the new rule “envision[ed] public interest remedies such as fines and reprimands as the norm” rather than “private interest remedies,” such as attorneys’ fees. To drive home this point, the Advisory Committee’s note accompanying the amendment states that monetary penalties “should ordinarily be paid into court,” rather than the opposing party, except under “unusual circumstances.”
Fourth, the amendments modified the requirement that the litigant certify that the assertions made in papers presented to the court be “well grounded in fact.” Instead, the new version specifically allows pleaders to make factual contentions even though the pleader lacks evidentiary support at the time that they are made. Thus, under the revised signature requirement, the “attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances . . . the factual contentions have evidentiary support or, if specifically so identified, will likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”
The 1993 amendments achieved their goal of reducing Rule 11 litigation; since their passage, lawyers have filed fewer Rule 11 motions. As a result, there has been less “satellite litigation” and, moreover, by most accounts, the reduced threat of sanctions has decreased the chilling effect of Rule 11.
Moreover, the changes to Rule 11 lifted the pressure on pleading standards that the 1983 version of the rule had imposed. “The cases decided under the 1993 version of Rule 11 suggest that the lower federal courts understood that the 1993 amendments were designed to liberalize the rule.” Courts recognized that they were to “impose sanctions only where the conduct in question reaches a point of clear abuse.” Indeed, some courts explicitly rejected the notion that Rule 11 could even have any impact on the pleading standard. As one court stated, “It appears that [the third-party defendant] is asking the court to graft, via [Rule] 11(b), a particularity requirement onto the notice pleading requirements of [Rule] 8(a). I decline to do so.”
In contrast to the 1983–1993 time period—when courts used Rule 11 to sanction lawyers for failing to plead their claims with sufficient detail by, among other things, dismissing their complaints—courts in the period following the amendment to Rule 11 recognized that a complaint could be insufficient under Rule 8 without being sanctionable. Indeed, as the Sixth Circuit explained, under the amended Rule 11, a complaint that contains insufficient factual detail—even bare-bones, conclusory allegations—is not ordinarily sanctionable:
Although [the plaintiff] failed to include more than bare, conclusory assertions in her complaint, and thus failed to plead with the requisite specificity necessary to make an actionable claim, she did not fail in this endeavor by a wide margin. . . . As a general proposition, a district court should be hesitant to determine that a party’s complaint is in violation of Rule 11(b) when the suit is dismissed pursuant to Rule 12(b)(6) and there is nothing before the court, save the bare allegations of the complaint.
The Supreme Court’s 2002 unanimous decision in Swierkiewicz v. Sorema N.A. confirmed that liberal notice pleading was the governing standard and “provided a full-throated endorsement” of that standard. In that employment discrimination case, the Court found the plaintiff’s bald allegation—that his “age and national origin were motivating factors in [the defendant’s] decision to terminate his employment”—sufficient under Rule 8. In doing so, the Court recognized that this approach to pleading would “allow[ ] lawsuits based on conclusory allegations of discrimination to go forward” but concluded that “the Federal Rules do not contain a heightened pleading standard for employment discrimination suits.” Heightened pleading, the Court noted, is only required under the circumstances set forth in Rule 9(b). Confirming that the liberal pleading standard had returned, the Court said that “[g]iven the Federal Rules’ simplified standard for pleading, ‘[a] court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.’”
In short, whatever pressure the 1983 version of Rule 11 put on the pleading standard was largely eliminated by the 1993 amendments. Thus, the 1993 amendments to Rule 11 meant a return to liberal notice pleading, at least until Twombly and Iqbal.
IV. Twombly and Iqbal
With the exception of the 1983–1993 time period described above, Rule 8(a)’s simple notice pleading standard held sway for fifty years following the Supreme Court’s decision in Conley. On occasion, lower courts implemented heightened pleading standards, but in Swierkiewicz and other cases, the Supreme Court tamped down those efforts. Then came Twombly and Iqbal.
A. Bell Atlantic Corp. v. Twombly
In Twombly, telephone and Internet subscribers alleged that the country’s largest telecommunications firms had engaged in an illegal conspiracy in restraint of trade and therefore violated section 1 of the Sherman Act. In order to state a claim under section 1 of the Sherman Act, plaintiffs must establish that the defendants’ anticompetitive behavior is a result of a “contract, combination . . . , or conspiracy.” On this element, plaintiffs alleged parallel conduct by the defendants in great detail, explaining how the defendants had refused to compete against one another and kept other potential competitors out of their markets, but alleged an agreement between the defendants in only a conclusory manner. Under antitrust law, parallel conduct alone is not illegal if it is the result of independent acts by competitors.
In a 7–2 opinion authored by Justice Souter, the Supreme Court found those allegations insufficient under Rule 8(a). To satisfy Rule 8, the Supreme Court said that the complaint must contain “allegations plausibly suggesting (not merely consistent with) agreement.” The Court held that the allegations concerning a “contract, combination, or conspiracy” were “merely legal conclusions resting on the prior allegations” of parallel conduct. As for the more specific allegations of parallel conduct, the Court emphasized that parallel conduct alone does not violate the Sherman Act. To the contrary, the Court said that parallel conduct is “a common reaction of firms in a concentrated market” and entirely consistent with “a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market.” Thus, the Court concluded, “an allegation of parallel conduct and a bare assertion of conspiracy will not suffice.” “Further factual enhancement” was necessary to cross “the line between possibility and plausibility of ‘entitle[ment] to relief.’” Significantly, in reaching its conclusion, the Court “retire[d]” Conley’s “no set of facts” language. As commentators quickly recognized, Twombly “imposed an entirely new test on the pleading stage, instituting a judicial inquiry into the pleading’s convincingness.”
In reaching this conclusion, the Court’s primary motivation appears to have been its concern about the high costs of discovery. In particular, the Court did not want to permit meritless claims to reach the discovery stage in which plaintiffs could extract significant settlements from defendants in light of the high costs of discovery. As Justice Souter wrote, “the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings.”
B. Ashcroft v. Iqbal
Twombly sent “shockwaves throughout the legal community,” but many wondered whether it applied “only to complex antitrust claims, while the more lenient notice pleading approach [would continue] to apply more generally.” In Iqbal, the Court “remove[d] any doubt that Twombly reflects the generally applicable pleading standard in federal court.”
In Iqbal, the plaintiff, a Pakistani Muslim arrested after the September 11, 2001, attacks, filed a Bivens action against federal officials, including Attorney General John Ashcroft and FBI Director Robert Mueller. The claims against Ashcroft and Mueller rested on the theory that they “each knew of, condoned, and willfully and maliciously agreed” to arrest and detain Iqbal and thousands of other Arab Muslim men and subject them to harsh conditions of confinement “as a matter of policy, solely on account of [their] religion, race, and/or national origin and for no legitimate penological interest.” The complaint further alleged that Ashcroft was the “‘principal architect’ of the policy” and Mueller was “instrumental in [its] adoption, promulgation, and implementation.”
In a 5–4 decision authored by Justice Kennedy, the Court found that these allegations were not sufficient to survive a motion to dismiss. In reaching this conclusion, the Court reiterated the principles announced in Twombly: “A pleading that offers ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’ Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Rather, “a complaint must contain sufficient [nonconclusory] factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
In applying these principles, the Court employed a two-step analysis. First, it identified the “conclusory” allegations in the complaint—(1) that Ashcroft and Mueller “‘knew of, condoned, and willfully and maliciously agreed to subject [Plaintiffs]’ to harsh conditions of confinement ‘as a matter of policy, solely on account of [their] religion, race, and/or national origin and for no legitimate penological interest”; (2) that “Ashcroft was the ‘principal architect’ of this invidious policy”; and (3) that “Mueller was ‘instrumental’ in adopting and executing it”—and found them fatally flawed under Twombly because they are “bare assertions [that] . . . amount to nothing more than a ‘formulaic recitation of the elements’ of a constitutional discrimination claim.” Therefore, the Court disregarded these allegations.
Second, the Court returned to the remaining allegation—that the FBI had rounded up many Arab Muslims and subjected them to harsh conditions of confinement—and determined that this assertion did not plausibly suggest “purposeful, invidious discrimination” because the government’s conduct was entirely consistent with good law enforcement:
The September 11 attacks were perpetrated by 19 Arab Muslim hijackers who counted themselves members in good standing of al Qaeda, an Islamic fundamentalist group. Al Qaeda was headed by another Arab Muslim—Osama bin Laden—and composed in large part of his Arab Muslim disciples. It should come as no surprise that a legitimate policy directing law enforcement to arrest and detain individuals because of their suspected link to the attacks would produce a disparate, incidental impact on Arab Muslims, even though the purpose of the policy was to target neither Arabs nor Muslims.
Thus, the Court concluded, the plaintiffs’ complaint was insufficient because it needed “to allege more by way of factual content to ‘nudg[e]’ his claim of purposeful discrimination ‘across the line from conceivable to plausible.’”
In reaching this conclusion, the Court explicitly rejected the notion that Twombly should be “limited to pleadings made in the context of an antitrust dispute.” Specifically, it stated that “[t]hough Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8. That Rule in turn governs the pleading standard ‘in all civil actions and proceedings in the United States district courts.’” As in Twombly, the Court seems to have been motivated in large part by the costs of discovery and the need to give trial judges the ability to dismiss lawsuits before they reach discovery.
C. Pleading After Iqbal
Courts and commentators continue to debate the precise meaning of Twombly and Iqbal, but there are a few points of general agreement. First, Twombly and Iqbal are here to stay, at least for the foreseeable future. Although some commentators suggest that these decisions may not be as significant as they seem, the Supreme Court itself explicitly stated that its interpretation of Rule 8 in Iqbal governs all civil actions in U.S. district courts, not just antitrust and Bivens cases. And the lower courts are following suit: Iqbal is well on its way to becoming the most cited case of all time.
Second, liberal notice pleading appears dead. Despite the Court’s insistence to the contrary, Iqbal, with its requirement that the complaint be “plausible” at the pleading stage, makes it more difficult to satisfy Rule 8’s “short and plain statement” standard. In deciding whether a complaint satisfies this standard, Iqbal requires that courts follow a two-step process. First, the court is to disregard any conclusory allegations. Second, the court is to determine whether the remaining nonconclusory allegations, accepted as true, plausibly suggest an entitlement to relief. The Iqbal decision tells us, moreover, that “plausibility” means more than just a “sheer possibility that a defendant has acted unlawfully.” In other words, the complaint must “nudge[ ] [plaintiff’s] claims across the line from conceivable to plausible.” In determining whether the complaint has achieved plausibility, the Court explained, judges are to use their “judicial experience” and “common sense.”
While lower courts are left with the unenviable task of sorting out what constitutes a “plausible” complaint, the primary impact of Twombly and Iqbal appears to be the imposition of “a fact pleading requirement on Rule 8.” As one commentator explained, the Twombly standard “assesses the factual sufficiency of the allegations. And, the conclusory/nonconclusory dichotomy of Iqbal forces a plaintiff to detail factual support for her allegations to avoid having her complaint deemed ‘conclusory’ and thus disregarded.” Thus, the plaintiff’s lawyer needs to go element-by-element and “give a particularized mention of the factual circumstances of each element of the claim.” Over and above providing detail, in order to be “plausible,” the complaint must also be convincing.
V. Iqbal and the Resurrection of the 1983 Version of Rule 11
Twombly and Iqbal have transformed pleading and introduced a great deal of uncertainty. To date, commentators have produced an enormous amount of scholarship offering a wide variety of analyses and perspectives on these cases. Noticeably, however, that scholarship has described the Iqbal plausibility standard as “novel” in the modern era and identified little historical precedent for the post-Iqbal pleading era. As set forth in this Part, however, the post-Iqbal period of pleading is not entirely new. To the contrary, the current era bears a sharp resemblance to federal pleading from 1983 to 1993. Specifically, the 1983 version of Rule 11 and Iqbal are comparable in their motivation, implementation, and effects.
Both the 1983 version of Rule 11 and Iqbal were motivated by a perceived need to help courts overwhelmed by frivolous cases. Further, in both cases, the implementation of the new standards created significant uncertainty. Thus, just as Rule 11 was a focal point of litigation from 1983 to 1993, courts today are flooded with Iqbal motions, and Iqbal, like the 1983 version of Rule 11, has become an extremely popular subject among scholars.
As set forth in detail below, in terms of effects, the current criticisms of Iqbal are exactly the same complaints that were directed at the 1983 version of Rule 11. First, and perhaps most significantly, commentators complain that Iqbal has tightened pleading standards—just the way that the 1983 version of Rule 11 did (albeit indirectly). Further, under both pleading standards, plausibility is a touchstone for determining whether a complaint should survive the pleading stage. Second, this stricter pleading standard has commentators complaining, just as they did in 1983, about a “chilling effect” on plaintiffs and, relatedly, that the courts have taken a decidedly pro-defendant turn. Third, courts and commentators are noticing that Iqbal is having a disproportionate effect on certain kinds of litigation—civil rights and employment discrimination cases in particular—the same criticism that was leveled at the 1983 version of Rule 11.
A. The Heightened Pleading Standard
The most striking similarity between the 1983 version of Rule 11 and Iqbal is that both displaced liberal notice pleading and effectively imposed a heightened pleading standard based, at least in part, on whether the complaint is plausible.
As discussed in Part II, Rule 11 is directed at the sufficiency of the lawyer’s prefiling investigation rather than the pleading itself, but the 1983 version of the rule nevertheless had a dramatic effect on pleading. Specifically, courts used Rule 11’s prefiling investigation requirement to require more detailed pleading, and many courts used Rule 11 to dismiss complaints that were not sufficiently specific. Commentators criticized the rule because it “undermine[d] the liberal pleading regime.” Further, in judging whether a lawyer had met his duty of reasonable inquiry under Rule 11, some courts, following the Advisory Committee’s suggested standards, used plausibility as a touchstone. While the 1993 Amendments to Rule 11 brought a return of liberal notice pleading, the Supreme Court, through its interpretation of Rule 8 in Iqbal and Twombly, has now returned us to a pleading regime that resembles 1983 in several significant respects.
First and foremost, as previously discussed, Iqbal has replaced the liberal notice pleading standard with a heightened plausibility standard. In determining whether plaintiffs meet that standard, courts are to examine the nonconclusory allegations in the complaint and decide, based on their “judicial experience and common sense” whether those allegations “nudge[ ] [the plaintiffs’] claims across the line from conceivable to plausible.” The primary impact of this standard is to “impose a fact pleading requirement on Rule 8” that compels lawyers to go element-by-element and “give a particularized mention of the factual circumstances of each element of the claim.” Thus, Iqbal, just like the 1983 version of Rule 11, has produced “a revival of fact pleading that [is] antithetical to the spirit (if not the letter) of the Federal Rules of Civil Procedure.”
Second, Iqbal, like the 1983 version of Rule 11, has introduced a great deal of subjectivity into pleading. Under the 1983 version of Rule 11, sanctionable complaints were in the eye of the beholder: “[O]n the same set of facts, almost half of judges surveyed would have sanctioned a complaint as frivolous which the other half determined not to violate the rule. . . . Lawyers sanctioned by the district court for bringing ‘frivolous’ cases, have secured reversals not only of sanctions but also on the merits.”
Iqbal is already under attack for the same reason. In Iqbal, the Court specifically directed district courts to use their “judicial experience” and “common sense” to determine whether the claim is plausible. This aspect of the Iqbal decision “obviously licenses highly subjective judgments . . . [and] is a blank check for federal judges to get rid of cases they disfavor.”
Finally, Iqbal has restored the tension between Rule 8 and Rule 11 that existed under the 1983 version of Rule 11. Rule 8(a)’s liberal notice pleading standard—requiring only that the complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief”—deliberately “avoids mention of ‘facts’ or causes of action,’” while the 1983 version of Rule 11 required that lawyers conduct a prefiling investigation to establish, among other things, that any allegations in the complaint were “well grounded in fact.” Courts used the former Rule 11’s investigation requirement to force plaintiffs to plead with more factual detail than Rule 8(a) required.
Although the 1993 amendment to Rule 11 relieved that pressure, Iqbal has now revived it. As Professors Clermont and Yeazell explained, “[O]ne could have less disruptively attained an equivalent of the Twombly and Iqbal regime by aggressively rereading Rule 11 rather than Rule 8.” During the period from 1993 (when Rule 11 was amended) until the Court decided Twombly and Iqbal, a plaintiff’s lawyer who filed an insufficiently detailed complaint could sleep well knowing that he generally would suffer nothing worse than a dismissal of the complaint under Rule 12(b)(6). Indeed, courts consistently held that an insufficiently pled complaint by itself was not sanctionable under Rule 11, and that sanctions should be reserved for more egregious conduct. Iqbal, however, has thrown that notion into question. A plaintiff’s lawyer who files an insufficiently detailed complaint today faces the prospect of sanctions under Rule 11, just as he did from 1983 to 1993. Although we have seen only a few courts in the post-Iqbal era actually sanction plaintiffs for filing insufficiently detailed complaints, there has been a veritable explosion of threatened sanctions, and surely more sanctions will follow. To illustrate further the way in which courts are conflating Rules 8 and 11, one district judge has been citing Rule 11 alongside Twombly and Iqbal as the standard governing the sufficiency of a plaintiff’s complaint.
Another manifestation of this tension between Rule 8 and Rule 11 is the Supreme Court’s strict reading of Rule 8(a)(2) to require factual detail that seems to conflict with Rule 11(b)(3), which allows pleadings with “factual contentions . . . [that] will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” Professor Benjamin Spencer has noted this tension:
By moving from notice pleading to plausibility pleading requiring factual allegations, the Court seems to be precluding the very types of complaints contemplated and permitted by Rule 11(b). That is, although Rule 11(b) allows for the possibility that the pleader will require discovery to obtain supportive facts, plausibility pleading does not make such an allowance. Rather, plaintiffs are required to offer such facts at the pleading phase before discovery may occur.
As noted earlier, this feature of Rule 11(b) was put in place in 1993, along with a variety of procedural mechanisms to soften Rule 11. By undercutting a plaintiff’s ability to plead in this way, Iqbal is taking pleading directly back to the 1983–1993 time period.
B. Defendants’ Tools
A major criticism aimed at both the 1983 version of Rule 11 and Iqbal is that they are exclusively defendants’ tools that upset the Federal Rules’ delicate balance between the rights of plaintiffs to gain access to the courts and the rights of defendants to avoid abusive lawsuits. Commentators frequently complained that the 1983 version of Rule 11 was used primarily by defendants against plaintiffs, even though nothing in the rule compelled this imbalanced application. Empirical evidence supported this objection. Contemporaneous studies found that Rule 11 motions were “disproportionately directed at complaints rather than other papers,” which formed the basis of approximately fifty percent of the requests for sanctions and therefore inevitably “affect[ed] plaintiffs more adversely than defendants.”
Critics today are saying the exact same thing about Iqbal. Professor Georgene Vairo described the cases as “a defendant’s dream come true.” Another commentator said that Iqbal “is quickly becoming the best thing to happen to the products liability defense bar since Daubert.” Filing an Iqbal motion provides many benefits to the defense lawyer. First, of course, the defendant may actually get the case dismissed. Indeed, the defense lawyer’s professional duty of competence places pressure on him to at least consider an Iqbal motion in almost every case, or at least those cases where the complaint contains any thinly pled allegations. Arguably, “any defendant’s lawyer, faced with a complaint employing the minimalist pleading urged by Rule 8’s wording and the appended Forms’ content, commits legal malpractice if he or she fails to move to dismiss with liberal citations to Twombly and Iqbal.” Even an Iqbal motion that is likely to fail has benefits for defendants—the plaintiff’s response to the motion will provide the defendant with a great deal of information about the plaintiff’s case and maybe even lock the plaintiff into a story.
C. Chilling Effect
Because complaints were the primary target of Rule 11 sanctions from 1983 to 1993, many commentators complained that the 1983 version of Rule 11 “harmed plaintiffs, particularly public interest and civil rights plaintiffs” by “chill[ing] vigorous advocacy.” Several empirical studies sought to demonstrate that the rule was preventing attorneys from bringing meritorious cases. In addition to the empirical evidence, anecdotal evidence suggested that plaintiffs’ lawyers were holding back because of Rule 11. “Whether it can be classified as chilling or not, lawyers reported a cautioning effect of rule 11.”
Commentators fear that Iqbal will have the same chilling effect. Although there has not yet been any hard evidence about whether the new pleading standard is deterring lawyers from bringing meritorious cases, there is some anecdotal evidence that courts and defense lawyers are using Iqbal aggressively; this, in turn, may deter lawyers from bringing potentially meritorious cases.
First, in a large number of post-Iqbal cases, courts have cited the heightened pleading requirement imposed by Iqbal and threatened plaintiffs with Rule 11 sanctions if they file complaints that fail to meet that standard. In the most common scenario in the post-Iqbal world, the court grants a defendant’s Rule 12(b)(6) motion under Iqbal and permits the plaintiff leave to amend the complaint but warns that he should only amend the complaint if he can do so consistent with his obligations under Rule 11. This veiled (or perhaps not-so-veiled) threat from a judge can certainly make a lawyer think twice about refiling a complaint, and this has become an extremely common occurrence. In making this threat, courts are directly linking the obligation to plead with specificity under Iqbal’s heightened pleading standard with the plaintiff’s obligation to assert claims only if the lawyer has a good faith basis for doing so under Rule 11(b)(3). This was precisely the situation from 1983 to 1993, when “courts warned plaintiffs whose claims were dismissed with leave to amend that they would be subject to sanctions if the amended complaint did not correct the factual or legal deficiencies that led to dismissal.” This practice seemed to be in decline after Rule 11 was amended in 1993 but is now occurring again on a regular basis.
Second, defense firms are openly encouraging clients to challenge complaints, not only via motions to dismiss, but also through Rule 11 motions.
Finally, one court presented with a defendants’ 12(b)(6) motion to dismiss under Iqbal took the unusual step of ordering a preliminary hearing under the little-used Rule 12(i). The court stated that the hearing would serve dual purposes. First, the parties could “present the testimony of live witnesses and other evidence limited to the defendants’ objections to the pleadings, specifically the threshold legal issues upon which, under the Twombly and Iqbal plausibility test, the sufficiency of [the plaintiff’s] retaliation claim is grounded.” “Second, the hearing would serve as an occasion for the Court to probe, in accordance with Rule 11(b), the extent to which some of [the plaintiff’s] conclusory allegations have factual support and were formed after an inquiry reasonable under the circumstances.” This kind of aggressive approach might make plaintiffs gun shy about filing complaints, though it remains to be seen whether other courts will use this tactic.
In short, it is still too early to know whether Iqbal will have the same kind of chilling effect as the 1983 version of Rule 11, but early signs suggest that it might.
D. Disproportionate Impact
In still another striking parallel, critics of Iqbal argue that it is having a disproportionate impact on civil rights and employment discrimination cases, which is the same objection that commentators lodged against the 1983 version of Rule 11.
As discussed earlier, one of the most significant complaints about the 1983 version of Rule 11 was that it “harmed plaintiffs, particularly public interest and civil rights plaintiffs” by “chill[ing] vigorous advocacy.” Moreover, commentators conducted empirical studies, just as they are doing today, to determine whether Rule 11 was being applied more strictly to certain kinds of cases. And several of those studies concluded that sanctions were being imposed “disproportionately against plaintiffs, particularly in certain types of litigation such as civil rights, employment discrimination, securities fraud cases brought by investors, and antitrust cases brought by small companies.”
Commentators are criticizing Twombly and Iqbal on the exact same ground. Among the large amount of academic commentary produced in the wake of Twombly and Iqbal are a number of articles—including several empirical studies—expressing concern that Twombly and Iqbal are likely to have or are already having a “disproportionate” impact in certain kinds of cases. For example, Professor Howard Wasserman has written that “[c]ivil rights is one substantive area in which Iqbal will empower courts to increase scrutiny over pleadings.” Professor Arthur Miller made a similar prediction before Congress:
Twombly and Iqbal . . . probably will affect litigants bringing complex claims the hardest. Those cases—many involving Constitutional and statutory rights that seek the enforcement of important national policies and often affecting large numbers of people—include claims in which factual sufficiency is most difficult to achieve at the pleading stage and tend to be resource consumptive.
Similarly, Professor Joseph Seiner has examined the specific effect of Twombly on both employment discrimination claims brought under Title VII and disability discrimination claims brought under the Americans with Disabilities Act (“ADA”). With respect to the former (conducted after Twombly but before Iqbal), Professor Seiner concluded that Twombly “has already made the pleading requirements more difficult (and certainly more confusing) for Title VII litigants,” and that the district courts are aggressively using Twombly to “rais[e] the bar as to what an employment discrimination plaintiff must plead” to survive dismissal.” As for claims of disability discrimination, Professor Seiner’s empirical study concluded that courts are 14.1% more likely to grant a motion to dismiss in an ADA claim after Twombly than before.
Professor Seiner’s work only tells us that pleading employment discrimination and disability discrimination claims after Twombly is more difficult than it was before Twombly and does not speak to whether these categories of cases are receiving disproportionate treatment. Several other empirical studies have studied this issue, however, and suggest that Twombly and Iqbal are already having at least some disproportionate impact on these “disfavored” cases.
The Federal Judicial Center (“FJC”) recently produced the most comprehensive study of Iqbal and Twombly to date. The FJC study compared motion-to-dismiss activity in twenty-three federal judicial district courts before Twombly (cases filed from October 2005 through June 2006) and after Iqbal (cases filed from October 2009 through June 2010). The FJC found that defendants filed motions to dismiss in 6.2% of cases after Iqbal compared to only 4% of cases before Twombly, and reported this increase as statistically significant. With regard to the success of such motions, however, the FJC concluded:
After controlling for identifiable effects unrelated to the Supreme Court decisions, such as differences in caseload across individual districts, we found a statistically significant increase in the rate at which motions to dismiss for failure to state a claim were granted only in cases challenging financial instruments. . . . We found no increase in the rate at which motions to dismiss were granted, with or without opportunity to amend, in other types of cases.
The FJC’s conclusion concerning the dismissal rate was controversial and became a hot topic among commentators, leading some to suggest that the impact of Twombly and Iqbal may have been exaggerated. Further, the FJC study is being cited by those who believe that no change is necessary in the pleading standard after Iqbal.
Professor Lonny Hoffman has reexamined the FJC study, however, and concluded that the FJC’s overemphasis on statistical significance may cause “some readers to overlook the considerable changes in dismissal practices and outcomes the researchers did observe in comparing dismissal motions and orders before Twombly with motions and orders after Iqbal.”
First, Professor Hoffman emphasizes the FJC’s findings that “after Iqbal, a plaintiff was twice as likely to face a motion to dismiss” and stresses the importance of this finding, remarking that “[t]his sizeable increase in the rate of Rule 12(b)(6) motion activity represents a marked departure from the steady filing rate observed over the last several decades.” As Professor Hoffman concludes, the fact “[t]hat more motions are being filed carries real consequences for litigants.” Indeed, “[t]he FJC’s study confirms early predictions that Twombly and Iqbal would incentivize defendants to more frequently challenged the sufficiency of the plaintiff’s complaint.”
Second, Professor Hoffman reexamines the FJC’s data concerning grant rates on motions to dismiss and again notes the FJC’s own data demonstrate important changes: “[O]n average, defendants were more successful in bringing motions to dismiss post-Iqbal.” On this issue, Professor Hoffman notes that the FJC data show that “in the three largest case categories (Other, Financial Instruments and Civil Rights), it was much more likely after Iqbal that a court would grant a motion to dismiss with leave to amend”—12.8%, 30.5%, and 11.7%, respectively. Additionally, even the “remaining three categories (Contract, Torts and Employment Discrimination) show smaller but still clearly increasing grant rates”—9.2%, 7.7%, and 5.6% respectively.
In addition to this empirical evidence, anecdotal evidence also supports the view that courts are applying Iqbal particularly harshly in these “disfavored” cases.
What are the implications of this dramatic parallel between the pleading landscape today and the pleading landscape under the 1983 version of Rule 11? Principally, this historical analysis should bring critical data and a fresh perspective to the current debate about Iqbal. Although some commentators defend the decision or argue that its impact will be minimal, most contend that Iqbal is ill-conceived for the reasons discussed in this Article. The criticism of Iqbal, however, lacks significant evidence—empirical or otherwise—since we are still very early in the post-Iqbal era. This is where the comparison to the 1983–1993 time period is useful. We do not need to spend a lot more time waiting to find out how plausibility pleading will play out in the lower courts. We have been here before, and we know how it works.
Iqbal’s critics have been calling on Congress to overturn Iqbal, but no action seems imminent. It took ten years for the rule makers to amend Rule 11 to fix the mischief caused by the 1983 version of Rule 11. Given what the 1983–1993 time period tells us about plausibility pleading, it should not take that long for policymakers to take action to address the problems caused by Iqbal.
This Article has examined the previously overlooked parallels between pleading under the 1983 version of Rule 11 and pleading in the post-Iqbal era. In many ways, Iqbal has returned us to 1983. Courts are judging the sufficiency of complaints based on a heightened plausibility standard. Critics are complaining that the use of that standard is antithetical to the spirit, if not the letter, of the Federal Rules of Civil Procedure and its adoption of notice pleading. Further, commentators are saying that the plausibility standard is too subjective, gives judges too much discretion, has a chilling effect on plaintiffs, and is disproportionately harming plaintiffs with certain kinds of disfavored claims (civil rights and employment discrimination cases in particular). In short, the Supreme Court, through its interpretation of Rule 8 in Iqbal and Twombly, has achieved something very similar to what the 1983 rulemakers accomplished through Rule 11. Policymakers should look to the 1983–1993 experience under the old Rule 11 as a reason to move forward and address the problems with Iqbal.
Appendix: Granting Leave to Amend Complaint and Rule 11
In the following cases, courts granted a defendant’s Rule 12(b)(6) motion under Iqbal because the complaint was insufficiently detailed and permitted the plaintiff leave to amend but warned that the plaintiff should only amend if he could do so consistent with his obligations under Rule 11. These cases were selected after a review of the results of a Westlaw search for “Iqbal and Rule 11” during the time period June 2009 to January 2011.
Singh v. Wells Fargo Bank, N.A., No. C-09-2035 SC, 2009 WL 2365881, at *7 (N.D. Cal. Jul. 30, 2009) (“Plaintiff is strongly encouraged to bring only those claims that have, or are likely to have, evidentiary support. See [Rule] 11(b)(3).”).
Osorio v. United States, No. 08-80459-CIV, 2009 WL 2430889, at *3 (S.D. Fla. Aug. 6, 2009) (“Plaintiff may amend her complaint to attempt to assert a valid claim consistent with this order. Of course, Plaintiff may only assert such a claim if she has a good faith basis to do so. See Rule 11(b)(3). Also, any amendment must ‘contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’’. She must allege more than conclusions.” (citation omitted) (quoting Twombly, 550 U.S. at 570)).
Floyd v. CIBC World Mkts., Inc., 426 B.R. 622, 633 (S.D. Tex. 2009) (“Plaintiff’s Amended Complaint accordingly has not stated a plausible claim for relief . . . . The Court nevertheless will grant Plaintiff leave to amend if it is able to do so within the strictures of Rule 11.”).
Jones v. Premier One Funding, Inc., No. C-09-3858 SC, 2009 WL 4510138, at *5 (N.D. Cal. Nov. 30, 2009) (“Plaintiffs are strongly encouraged to bring only those claims that they believe have evidentiary support. See [Rule] 11(b)(3).”).
Forba Holdings, L.L.C. v. Licsac, L.L.C., No. 09-cv-02305-CMA-MJW, 2010 WL 148267, at *2 (D. Colo. Jan. 11, 2010) (“The Court . . . grants grants Plaintiff leave to file within 21 days an emended compliant that complies with the Twombly/Iqbal plausibility standard. If Plaintiff cannot, in good faith, file such a complaint . . . the case will be dismissed with prejudice.” (footnote omitted) (citing Rule 11(b)(3))).
Weaver v. Derichebourg ICS Multiservices., No. 09 Civ. 1611(LTS)(DF), 2010 WL 517595, at *3 (S.D.N.Y. Feb. 3, 2010) (“The determination of whether Plaintiff can articulate facts sufficient plausibly to state such a claim and comply with Rule 11 . . . will have to abide the filing of the amended complaint . . . .”).
Cooke v. Jaspers, No. H-07-3921, 2010 WL 918342, at *6 (S.D. Tex. Mar. 10, 2010)) (“There is no allegation that puts [the defendant] on notice of the basis of the claim or shows the plaintiffs’ entitlement to relief. The motion to dismiss is granted. The plaintiffs have leave to amend, consistent with Rule 11 . . . .” (citations omitted)).
Smith v. Pizza Hut, Inc., 694 F. Supp. 2d 1227, 1230–31 (D. Colo. 2010) (“The Court . . . [grants] Plaintiff leave to file . . . an amended complaint that complies with the Twombly/Iqbal plausibility standard. If Plaintiffs cannot, in good faith, file such a complaint, . . . this case will be dismissed with prejudice.” (footnotes omitted) (citing Rule 11(b)(3))).
Figueiredo v. Aurora Loan, No. C 09-4784 BZ, 2010 WL 935323, at *1 (N.D. Cal. Mar. 15, 2010) (“It is plaintiff’s obligation to plead facts sufficient to state a plausible claim for relief. The Court will not presume facts that plaintiff failed to allege in order to defeat a motion to dismiss. If plaintiff cannot allege that the property was owner-occupied consistent with her obligations under Rule 11, then plaintiff cannot state a cause of action . . . .” *(citation omitted)).
Darrow v. WKRP Mgmt., L.L.C., No. 09-cv-01613-CMA-BNB, 2010 WL 1416799, at *3 (D. Colo. Apr. 6, 2010) (“The Court . . . [grants] Plaintiff leave to file . . . an amended complaint that complies with the Twombly/Iqbal plausibility standard. If Plaintiffs cannot, in good faith, file such a complaint, . . . this case will be dismissed with prejudice.” (footnotes omitted) (citing Rule 11(b)(3))).
Goodman v. Merrill Lynch & Co., 716 F. Supp. 2d 253, 262 (S.D.N.Y. 2010) (“[B]efore repleading, plaintiff should carefully consider whether she can allege additional facts that would make her claims plausible rather than possible, keeping in mind the requirements of—and the sanctions authorized by—Rule 11.”).
Zendejas v. GMAC Wholesale Mortg. Corp., No. 1:10-CV-00184 OWW GSA, 2010 WL 2490975, at *4 (E.D. Cal. June 16, 2010) (“Defendants’ motion to dismiss any claims . . . for lack of standing is [granted with leave to amend] consistent with Rule 11.”).
United States ex rel. Davis v. Prince, No. 1:08CV1244, 2010 WL 2679761, at *4 (E.D. Va. July 2, 2010) (“Simply put, the complaint’s factual allegations do not create a plausible inference . . . . Thus, Count 2 reads as nothing more than a ‘threadbare recital’ of the [legal] elements . . . . Accordingly, Count 2 is properly dismissed, but relators may re-plead this claim if they can do so consistently with Rule 11.” (citation omitted) (quoting Iqbal, 129 S. Ct. at 1949)).
Ravenswood Ctr., L.L.C. v. FDIC, No. 10 C 1064, 2010 WL 2681312, at *4 (N.D. Ill. July 6, 2010) (“We also grant [the plaintiff] leave to file an amended complaint . . . to the extent that it is able to do so consistent with this order and Rule 11.”).
Desperado Motor Racing & Motorcycles, Inc. v. Robinson, No. H-09-1574, 2010 WL 2757523, at *4 (S.D. Tex. July 13, 2010) (“The Court, in the interests of justice, grants Defendant leave to amend and re-plead these causes of action if he can do so within the strictures of Rule 11.”).
Wedgeworth v. Result Matrix, Inc., No. 02:10cv184-WHA, 2010 WL 2794594, at *3 (M.D. Ala. July 15, 2010) (“In deciding whether to file an amendment to the [complaint] . . . the Plaintiffs should consider whether they can allege [a cognizable claim], consistent with the requirements of Rule 11 . . . .”).
Bonner v. Select Portfolio Servicing, Inc., No. 10-00609 CW, 2010 WL 2925172, at *13 (N.D. Cal. July 26, 2010) (“If he files an amended complaint, Plaintiff’s failure to make a good faith effort to comply with Rule 11 will result in the imposition of sanctions and a referral to the State Bar of California.”).
Warner v. Township of S. Harrison, No. 09-6095 (JBS/JS), 2010 WL 3001969, at *5 n.6 (D.N.J. July 26, 2010) (“If Plaintiff believes that he is able to allege that he was an ‘employee’ who suffered an ‘adverse employment decision’ motivated by his political affiliation, and that such a pleading would satisfy counsel’s obligations under Rule 11, then Plaintiff is free to seek leave to file a second amended complaint promptly.” (citation omitted)).
La Gorce Palace Condo Ass’n v. QBE Ins. Corp., 733 F. Supp. 2d 1332, 1335 (S.D. Fla. 2010) (“If there are facts to support such a claim consistent with Rule 11 . . . Plaintiff may filed [sic] an amended Count I.”).
Bolton v. Fed. Home Loan Mortg. Corp., No. 2:10cv171-WHA, 2010 WL 3270022, at *5 (M.D. Ala. Aug. 17, 2010) (“[S]hould Plaintiff choose to file an amended complaint, he should keep in mind that he must make his allegations within the strictures of Rule 11 . . . .”).
Muczynski v. Lieblick, No. 10-cv-0081, 2010 WL 3328203, at *7 (N.D. Ill. Aug. 19, 2010) (“Plaintiff . . . [may] file an amended complaint if he can do so consistent with Rule 11.”).
Abdul-Aziz v. Show Dept., Inc., No. 09-cv-7609, 2010 WL 3516157, at *3 (N.D. Ill. Aug. 25, 2010) (“Plaintiff . . . [may] file a Second Amended Complaint if he can do so consistent with Rule 11.”).
McGinnis v. GMAC Mortg. Corp., No. 2:10-cv-00301-TC, 2010 WL 3418204, at *6 (D. Utah Aug. 27, 2010) (“[The plaintiff] may file a motion to amend his complaint . . . only so long as his amended complaint . . . complies with Rule 11 . . . .”).
Kopperl v. Bain, No. 3:09-CV-1754 (CSH), 2010 WL 3490980, at *4 (D. Conn. Aug. 30, 2010) (“In drafting any amended counterclaim pursuant to this Ruling, the . . . Defendants and counsel must keep in mind the provisions of Rule 11 . . . .”).
MacPherson v. Town of Southampton, 738 F. Supp. 2d 353, 375 (E.D.N.Y. 2010) (“Plaintiffs are cautioned . . . that any amendment is subject to scrutiny under Rule 11.”).
Ginsburg v. Concordia Univ., No. 4:10CV3064, 2010 WL 3720186, at *5 n.3 (D. Neb. Sept. 14, 2010) (“The court is providing [the plaintiff] an opportunity to cure the noted defects in his complaint provided such amendments can be made within the parameters of Rule 11 and the plaintiff wants to proceed with this case. However, the plaintiff is hereby notified that attorney fees may be awarded if his claim lacks a factual basis and he nonetheless continues to pursue this litigation.”).
Miller v. Correctional Med. Servs., Inc., No. 2:10cv583-WHA-WC, 2010 WL 3723998, at *6 (M.D. Ala. Sept. 16, 2010) (“[S]hould Plaintiff choose to file an amended complaint, she should keep in mind that she must make her allegations within the strictures of Rule 11 . . . .”).
Garback v. Lossing, No. 09-cv-12407, 2010 WL 3733971, at *5 (E.D. Mich. Sept. 20, 2010) (“The Court will grant [the plaintiff] leave to file an amended complaint, consistent with Rule 11 . . . .”).
London v. Aurora Loan Servs., No. C-10-02789 EDL, 2010 WL 3751812, at *5 (N.D. Cal. Sept. 24, 2010) (“The Court cautions Plaintiff that she must comply with Rule 11 in amending her complaint.”).
Veltex Corp. v. Matin, No. CV 10-1746 ABC (PJWx), 2010 WL 3834045, at *8 n.12 (C.D. Cal. Sept. 27, 2010) (“In light of the Court’s granting Plaintiff leave to amend . . . however, the Court reminds Plaintiff of its Rule 11(b) obligations with respect to any new allegations pled.”).
Shugart v. Ocwen Loan Servicing, L.L.C., 747 F. Supp. 2d 938, 947 (S.D. Ohio 2010) (“The Court reminds Plaintiff’s counsel of its obligations pursuant to [Rule] 11(b)(3) and grants Plaintiff’s request for leave to amend Count Two . . . .”).
A-W Land Co. v. Anadarko E & P Co., No. 09-cv-02293-MSK-MJW, 2010 WL 3894107, at *5 n.10 (D. Colo. Sept. 29, 2010) (“Should the Plaintiffs believe they can, within the strictures of [Rule] 11(b)(3), amend the Complaint to state a cognizable claim . . . they may move for leave to do so . . . and the Court will evaluate that motion on its merits.”).
Ideyi v. State Univ. of N.Y. Downstate Med. Ctr., No. 09-CV-1490 (ENV)(RML), 2010 WL 3938411, at *8 (E.D.N.Y. Sept. 30, 2010) (“[T]he following causes of action are dismissed without prejudice with leave to replead, provided that plaintiff can do so in compliance with his Rule 8 and Rule 11 obligations . . . .”).
Hall v. Dixon, No. H-09-2611, 2010 WL 3909515, at *48 (S.D. Tex. Sept. 30, 2010) (“Any such amendment must be consistent with this Memorandum and Opinion and Rule 11 . . . and must not be futile.”).
Burton v. Progressive N. Ins. Co., No. CIV-10-921-W, 2010 WL 4167392, at *7 (W.D. Okla. Oct. 21, 2010) (“[T]he [plaintiffs] should be granted the opportunity to amend their amended complaint in accordance with Twombly, Iqbal, extant Oklahoma law and Rule 11 ‘to frame a ‘complaint with enough factual matter (taken as true) to suggest’ that . . . [they are] entitled to relief’ . . . .’” (third and fourth alterations in original) (citation omitted) (quoting Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008))).
Carter v. Countrywide Home Loans, Inc., No. 3:10cv503-WHA-CSC, 2010 WL 4269149, at *6 (M.D. Ala. Oct. 28, 2010) (“The court will dismiss this Count without prejudice, to allow Plaintiffs an opportunity to amend this claim, if they wish to do so and can, within the requirements of Rule 11 to include allegation of facts showing how they reasonably relied on the alleged misrepresentations and why the two year statute of limitations has not run on the claim.” (citation omitted)).
Avant-Garde, L.L.C. v. Mountain Spa Props., L.L.C., No. CV10-1499-PHX-NVW, 2010 WL 4537057, at *6 (D. Ariz. Nov. 3, 2010) (“This denial is without prejudice to a subsequent motion to amend, but the Court emphasizes that, if [plaintiff] chooses to amend, its factual allegations must either (i) ‘have evidentiary support,’ or (ii) be ‘specifically . . . identified’ as facts that ‘will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.’” (second alteration in original) (quoting Rule 11(b)(3))).
Kaminski v. BWW Sugar Land Partners, No. H-10-551, 2010 WL 4817057, at *3 (S.D. Tex. Nov. 19, 2010) (“Plaintiffs shall file an amended complaint . . . consistent with Rule 11 . . . .”).
Ward v. Ala. Dep’t of Conservation and Natural Res., No. 1:10cv745-WHA-SRW, 2010 WL 5014343, at *6 (M.D. Ala. Dec. 3, 2010) (“The court is not suggesting that the Plaintiff should file an Amended Complaint, or that, if he does, an Amended Complaint will withstand a new Motion to Dismiss. The Plaintiff is merely being given an opportunity to do so, if he so chooses, and if he can do so considering Rule 11.” (citation omitted)).
Ballard v. Chase Bank USA, N.A., No. 10cv790 L(POR), 2010 WL 5114952, at *8 (S.D. Cal. Dec. 9, 2010) (“Counsel is reminded that ‘Rule 11 authorizes a court to impose a sanction on any attorney, law firm, or party that brings a claim for an improper purpose or without support in law or evidence.’” (quoting Sneller v. City of Bainbridge Island, 606 F.3d 636, 638–39 (9th Cit. 2009))).
Kucheynik v. Mortg. Elec. Registration Sys., Inc., No. C10-451Z, 2010 WL 5174540, at *5 n.4 (W.D. Wash. Dec. 15, 2010) (“The Court notes that amendment would be futile, unless Plaintiffs can allege facts, subject to Rule 11(b) requirements, that would entitle them to equitable tolling and to cure the factual deficiencies in the complaint. Nevertheless, the Court is persuaded that the Plaintiffs should be permitted an opportunity to amend at this early stage of the proceedings.”).
Cruz Reyes v. United States, No. 08-00005, 2010 WL 5207583, at *7 n.8 (D. Guam Dec. 15, 2010) (“The court is skeptical that Plaintiff can amend his negligence claims and his contract claim in keeping with Rule 11 . . . .”).
Lindgren v. Spears, No. H-10-1929, 2010 WL 5437270, at *4 (S.D. Tex. Dec. 27, 2010) (“Spears’s motion to dismiss under Rule 12(b)(6) is granted, without prejudice and with leave to amend, consistent with Rule 11 . . . .”).
Meram v. Citizens Title & Trust, Inc., No. 10cv1388 L(POR), 2011 WL 11463, at *5 (S.D. Cal. Jan. 3, 2011) (“The Court will grant plaintiffs’ request for leave to amend, so that plaintiffs may attempt to cure the deficiencies noted herein. But plaintiffs’ are advised that ‘Rule 11 authorizes a court to impose a sanction on any attorney, law firm, or party that brings a claim for an improper purpose or without support in law or evidence.’” (quoting Sneller v. City of Bainbridge Island, 606 F.3d 636, 638–39 (9th Cit. 2009))).
Rashdan v. Geissberger, No. C 10-00634 SBA, 2011 WL 197957, at *7 (N.D. Cal. Jan. 14, 2011) (“Plaintiff is granted leave to amend this claim if she can—in good faith and consistent with the requirements of Rule 11 . . . .”).
Mitchell v. Bank of Am., No. 10cv432 L(WVG), 2011 WL 334988, at *3 (S.D. Cal. Jan. 31, 2011) (“[P]laintiffs will be granted leave to file an amended complaint . . . . Counsel is reminded that ‘Rule 11 authorizes a court to impose a sanction on any attorney, law firm, or party that brings a claim for an improper purpose or without support in law or evidence.’” (quoting Sneller v. City of Bainbridge Island, 606 F.3d 636, 638–39 (9th Cit. 2009))).
* Assistant Professor of Law, University of Mississippi School of Law. I would like to thank Stephen Burbank, George Cochran, Scott Dodson, Peter Margulies, Alan Morrison, Farish Percy, Jeff Stempel, Georgene Vairo, Rhonda Wasserman, and Stephen Yeazell for their thoughtful comments on earlier drafts. I am also grateful to my many colleagues who offered valuable feedback at a University of Mississippi Faculty Workshop as well as those who attended the presentation of this Article at the 2011 Southeastern Association of Law Schools Annual Meeting in Hilton Head, South Carolina. I would also like to thank the Lamar Order of the University of Mississippi School of Law for its financial support. D. Eric Schieffer and Patrick Timony provided excellent research assistance.
/inbrief/2007/07/09/dodson.pdf; Richard A. Epstein, Bell Atlantic v. Twombly: How Motions to Dismiss Become (Disguised) Summary Judgments, 25 Wash. U. J.L. & Pol’y 61 (2007); Mark Herrmann, James M. Beck & Stephen B. Burbank, Debate, Plausible Denial: Should Congress Overrule Twombly and Iqbal?, 158 U. Pa. L. Rev. PENNumbra 141 (2009), http:// www.pennumbra.com/debates
/pdfs/PlausibleDenial.pdf; Lonny S. Hoffman, Burn Up the Chaff with Unquenchable Fire: What Two Doctrinal Intersections Can Teach Us About Judicial Power over Pleadings, 88 B.U. L. Rev. 1217 (2008); Allan Ides, Bell Atlantic and the Principle of Substantive Sufficiency Under Federal Rule of Civil Procedure 8(a)(2): Toward a Structured Approach to Federal Pleading Practice, 243 Fed. Rules Decisions 604 (2006); Malveaux, supra note 4; Elizabeth M. Schneider, The Changing Shape of Federal Civil Pretrial Practice: The Disparate Impact on Civil Rights and Employment Discrimination Cases, 158 U. Pa. L. Rev. 517 (2010); Joseph A. Seiner, The Trouble with Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev. 1011; A. Benjamin Spencer, Understanding Pleading Doctrine, 108 Mich. L. Rev. 1 (2009) [hereinafter Spencer, Pleading Doctrine]; A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010); Paul Stancil, Balancing the Pleading Equation, 61 Baylor L. Rev. 90 (2009); Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark L. Rev. 15 (2010) [hereinafter Thomas, New Summary Judgment]; Suja A. Thomas, Why the Motion to Dismiss Is Now Unconstitutional, 92 Minn L. Rev. 1851 (2008); Elizabeth Thornburg, Law, Facts, and Power, 114 Penn St. L. Rev. Penn Statim 1 (2010), http://www.pennstatelawreview.org/114/114%20Penn
%20Statim%201.pdf; Howard M. Wasserman, Iqbal, Procedural Mismatches, and Civil Rights Litigation, 14 Lewis & Clark L. Rev. 157 (2010).
.pdf. As Professor Couture explained, courts, including the Twombly Court, have “conflate[ed]” the two tests, “treating them as synonymous.” Id. at 28. Thus, some commentators have argued that the Twombly Court’s “retirement” of this phrase is not particularly significant. E.g., id. at 29 (“[T]he ‘no set of facts’ test is not the cancer maligned by the Twombly Court.”). Because so many courts understand the “no set of facts” test to be about factual sufficiency, however, the Court’s retirement of that language is meaningful at least in the sense that it has signaled to lower courts the need for more detailed factual pleading.
. Vairo, Profession, supra note 73, at 598.
In the absence of any meaningful competition between the [defendants] in one another’s markets, and in light of the parallel course of conduct that each engaged in to prevent competition . . . within their respective local telephone and/or high speed internet services markets and the other facts and market circumstances alleged above, Plaintiffs allege upon information and belief that [the defendants] have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated consumers and markets to one another.
Id. at 551.
‑ad95‑966de4581eb0/Presentation/PublicationAttachment/c4560553‑6cf8‑4dbf‑a304-a2776e5b7adf/Mitchell-JULY-09_2_.pdf (“In some instances, where allegations in the complaint are obviously wrong or ‘information and belief’ pleadings seem suspiciously thin, defendants may want to challenge the basis for the allegations by serving a Rule 11 motion under the safe harbor provision, to determine how willing plaintiffs are to stand by them.”).