Consensus on Twombly/Iqbal?

An excellent discussion brewing among lawyers, both academic and practicing, over the plausibility requirement - the pleading of facts to justify claims - seen in Twombly and Iqbal. The American College of Trial Lawyers and the Institute for the Advancement of the American Legal System got the ball rolling with its interim report in 2008 which called for reforms in pleading and in discovery. For a couple of thoughtful treatments, take a look at the last few posts on the Beck/Herrmann Drug & Device Blog (which give the ACTL some kudos) for the discussion of pleadings and discovery, and to the SCOTUS blog discussion which focuses more on the governmental immunity issues in the case.

In West Virginia, our Court has often cited, and long followed the Conley v. Gibson formula:

"The trial court, in appraising the sufficiency of a complaint on a Rule 12(b)(6) motion, should not dismiss the complaint 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. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957)." Syllabus Point 3, Chapman v. Kane Transfer Co., Inc., 160 W.Va. 530, 236 S.E.2d 207 (1977).

Several friends & colleagues have alerted me to subsequent treatment of this issue by the WV Court in footnotes in various cases. Russell Jessee of Steptoe & Johnson, http://www.steptoelaw.com/attorneys/personnel/RussellDJessee,289.aspx, advises that in Highmark v. Jamie, 221 W. Va. 487, 655 S.E.2d 509 (2007), the Court said in a footnote that Conley v. Gibson is still good law in WV. But wait, there's more. Brian Peterson of the Bowles firm, http://www.bowlesrice.com/attorneys/attorney/content,148.aspx, and Al Emch of my shop, http://www.jacksonkelly.com/jk/index.asp?w=Attorneysbio&empl_uno=31, respond that Highmark was a pre Iqbal opinion, and there are conflicting footnotes in Hoover v. Moran, 662 S.E.2d 711 at n.3 (W.Va. 2008); In Re Flood Litigation Coal River Watershed, 668 S.E.2d 203 at n.10 (W.Va. 2008).

So, at the least, it is fair to say that the WV Court has not, in a syllabus point, tangled with the Conley formula, nor has it, in a footnote or otherwise, addressed Iqbal.

Drug & Device Law: http://druganddevicelaw.blogspot.com/
SCOTUS Blog: http://www.scotusblog.com/wp/analysis-a-pass-for-high-officials/#more-9553