The Fact, Just The Facts

Chiming in on the discussion of the Twombly requirements, Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) and Ashcroft v. Iqbal, 2009 WL 1361536 (U.S. May 18, 2009), are a "must read" opinions for anyone, plaintiff or defendant, litigating in federal court. Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007), reinterprets the "short plain statement" requirement of Rule 8(a)(2) of the Federal Rules of Civil Procedure and ramps it up, applying a "plausibility standard." A complaint must contain "enough facts to state a claim to relief that is plausible on its face…." The Court stated

We alluded to the practical significance of the Rule 8 entitlement requirement . . . when we explained that something beyond the mere possibility of loss causation must be alleged, lest a plaintiff with a largely groundless claim be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value. So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic deficiency should be exposed at the point of minimum expenditure of time and money by the parties and the court. Some threshold of plausibility must be crossed at the outset before a . . . case should be permitted to go into its inevitably costly and protracted discovery phase.

Judge Stamp of the USDC ND WV recently recognized in Allman v. Chancellor Health, Slip Op. No. Civil Action No. 5:08CV155 (N.D.W.Va. May 26, 2009), that the "often-quoted language" from Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that dismissal under Rule 12(b)(6) is inappropriate 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, "earned its retirement" because it allowed any statement revealing the theory of the claim to suffice unless its factual impossibility may be shown from the face of the pleadings.

The Supreme Court made clear in Ashcroft v. Iqbal, 2009 WL 1361536 (U.S. May 18, 2009), that the Twombly analysis applies to all cases, and not just antitrust cases. Twombly and Iqbal provide another important layer of analysis in deciding whether to file a motion to dismiss in federal court where the plaintiff's complaint is long on allegations and scant on facts. For a great in depth treatment of the topic, take a look at the Herrmann & Beck Drug & Device Blog, http://druganddevicelaw.blogspot.com/.