The complaint must be sufficient to survive a motion to dismiss. Your thorough review of the law in the
substantive area involved should reveal to you the typical grounds for motions to dismiss and the potential
weaknesses in your case. It is helpful to imagine yourself as the opposing attorney assigned to draft a
motion to dismiss your case; thus, providing yourself with an opportunity to identify and address
your complaint’s weaknesses before you file it.
Prior to 2007, all “the Federal 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 ground upon which it rests.”
For fifty years, the Court followed the principle set forth in Conley v. Gibson, 355 U.S. 41 (1957) that
complaints that supplied such notice should not be dismissed unless it is "beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would entitle him to relief." The Supreme Court
rejected efforts to impose heightened pleading standards as recently as 2002. In Swierkiewicz v. Sorema,
the Court held that a plaintiff pleading Title VII and Age Discrimination in Employment Act claims was
not required to plead each element of a prima facie case of discrimination. Noting that the
McDonnell Douglas, 411 U.S. 792 standard was an evidentiary, not a pleading requirement, the Court
held that the complaint need only give “fair notice of the basis for [plaintiff’s] claim.”
In Bell Atlantic Corp. et al v. Twombly et al , a 2007 Sherman Act case, the Court made it quite clear
that the complaint must do more than merely provide notice to the defendant. Rather, it held that a
complaint must contain facts that "plausibly suggest" a conspiratorial agreement rather than facts simply
alleging conduct consistent with such an agreement. Burying the traditional Conley formulation, the
Court cautioned that "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not
do." The complaint must do more than simply leave open a possiblity that the plaintiff could prove its case.
Instead, the pleading must contain detail sufficient to create a reasonable expectation that discovery will
surface evidence of wrongdoing. The Court insisted that it was not imposing a heightened pleading
standard, but instead required allegations of sufficient detail to "cross the line from conceivable to plausible."
The Court's clear repudiation of the Conley "no set of facts" language and extended discussion of the costs
of discovery underscore a more rigorous pleading standard.
In the Court's 2009 decision in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) took plausibility pleading
beyond antitrust cases and imposed it quite rigorously. Iqbal was a Bivens case brought by a Pakistani
arrested after 9/11 and housed a maximum security prison under allegedly harsh conditions. To prevail,
Iqbal had to plead and prove that the defendants at issue, the former Attorney General and the FBI
Director had adopted or approved of detention policies for the purpose of discriminating against him
on the basis of religion, race or national origin. The Court explained that "the pleading standard Rule 8
announces does not require 'detailed factual allegations,' but it demands more than an unadorned,
the-defendant-unlawfully-harmed-me accusation." With respect to the "plausibility" standard described
in Twombly, Iqbal explained that "[a] claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged."
The Iqbal Court noted that "[t]he plausibility standard is not akin to a 'probability requirement,' but
it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint
pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between
possibility and plausibility of 'entitlement to relief.'". Iqbal's significance lies in operationalizing
the plausibility standard.
The Court in Twombly acknowledged that a court must treat the complaint's factual allegations as true,
"even if doubtful in fact." But, in Iqbal, the Court cautioned that courts need not accept as true
"threadbare recitals of the elements of a cause of action, supported by mere conclusory statements."
Such recitals are regarded as legal conclusions not subject to the presumption of truth. The Court set
out a procedure for separating legal conclusions from factual allegations:
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the assumption of truth. While legal
conclusions can provide the framework of a complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court should assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.
This procedure requires the court to engage in a two-step analysis that seems to go beyond what was
required in Twombly. First, the court should identify which statements in the complaint or counterclaim
are factual allegations and which are legal conclusions. Legal conclusions should not be assumed to be
true and may, essentially, be discarded for purposes of the second step: assessing the factual assertions.
Those assertions are not evaluated in overall context, but are stripped away from the discarded legal
conclusions. "Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and common
sense." The Court regarded the complaint's allegations in Iqbal as conclusory because, in context,
the Court discerned a more likely explanation for the detentions: Iqbal was rounded up as an undocumented
alien because of his possible connections to the perpetrators of 9/11 as part of a terrorism investigation,
rather than because of discriminatory animus.
The plausibility principle may have had particular impact in Twombly and Iqbal given the nature of the
claims asserted in those cases. In Twombly, there was no direct evidence of collusive behavior in violation
of the antitrust law. Rather, the plaintiffs alleged a scenario consistent with such behavior when, at the
same time, there existed another equally or more plausible explanation for the scenario which was entirely
innocent in nature. Without factual allegations underlying an inference that the defendants’ behavior was
collusive, the plaintiffs fell short of offering allegations that made their theory a plausible one in light of
the alternative. Similarly, in Iqbal, the Court suggests that there was no direct evidence of unlawful
discriminatory intent; that intent must be inferred from other facts. The facts alleged by the plaintiffs,
the Court believed, were equally or more consistent with an explanation that the defendants acted
without discriminatory intent. In short, no facts were alleged to bring the inferential gap between the
behavior and the intent or motive for that behavior.
The Twombly/Iqbal standard may be particularly problematic in cases in which the defendant is the
custodian of most of the facts underlying the complaint or cases turning on mental states of intent or
motive. It is difficult to discern how to allege unlawful intent or purpose without using language, like
"knowlingly" or "willfully," that is not conclusory in nature. Without discovery, plaintiffs will have
considerable difficulty unearthing support for such allegations, but such allegations will not permit the
plaintiff to proceed to discovery. Iqbal also portends a significant expansion in judicial power and
discretion. Rather than merely determining whether a complaint was sufficiently detailed to afford the
defendant notice, a fairly objective inquiry, the federal judge must now use their "judicial experience
and common sense" to determine whether allegations are more subjectively "plausible." In a sense,
"plausibility" is in the eye of the beholder. Some judges may find challenges to the behavior of
governments or corporations implausible because the allegations do not conform with intuitive or expected
understandings.
For the pro se litigant Twombly and Iqbal have significant consequences. They call for more
detailed and fact-specific complaints, which, in turn, may require more rigorous pre-filing investigation
and preparation. Lurking below the surface of Twombly and Iqbal are Rule 11 implications; how
certain must the pro se litigant be of the more detailed factual allegations required to satisfy the
plausibility standard? The judge drawn to hear the case may have an immediate impact on the
chances that the defendant will file a motion to dismiss and prevail on that motion. An increased
possibility of a motion to dismiss may alter settlement dynamics.