jrs12 wrote:betasteve wrote:More info: after twombly/Iqbal, courts state that "mere legal conclusions" are not due the presumption of truth, but that facts are. Iqbal goes on to basically tell the courts what to do: go through the pleading, and strike everything that is a "mere legal conclusion" and everything that is left is what can be presumed to be true. So, assuming those facts in the pleading, then instead of conley's "any set of facts" to support, it must be beyond possible, it should be plausible, but doesn't need to be probable.
Just because it's not entitled to the presumption of truth does not mean that it will be struck as a mere legal conclusion. The judge gets to decide what's plausible.betasteve wrote:but we at the same time, a pleading that says:
"∆ was negligently driving his car and that caused my injury"
should not be, alone, enough to subject ∏ to suit.
This is an example of a legal conclusion that actually WILL survive 12(b)(6) under current standards, because it's plausible on its face. Negligent driving is not a claim about which a court will be skeptical.A'nold wrote:Yeah but it should also be noted that it is a very hard burden to overcome, almost a rule 9(b) standard now. There have been a rash of 12(b)(6) motions granted since those stupid cases.
- The effect of Twombly and Iqbal has been vastly overstated. See, e.g., http://www.uscourts.gov/rules/Motions%2 ... smiss.pdf; Kendall W. Hannon, Much Ado About Twombly? 83 Notre Dame L. Rev. 1811 (2008)
- It's also untrue that Twombly and Iqbal presented an entirely new standard. Courts have been granting 12(b)(6)s on similar grounds for some time. A few examples: In re Colonial Mortgage Bankers Corp., 324 F.3d 12, 15 (1st Cir. 2003); DM Research v. College of American Pathologists, 170 F.3d 53, 55 (1st Cir. 1999); Heart Disease Research Foundation v. General Motors Corp., 463 F.2d 98, 100 (2d Cir. 1972); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 263 n.13 (3d Cir. 1998); Dickson v. Microsoft Corp., 309 F.3d 193, 202 (4th Cir. 2002); Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995); Columbia Natural Resources, Inc. v. Tatum, 58 F.3d 101, 1109 (6th Cir. 1995); Sneed v. Rybicki, 146 F.3d 478, 480 (7th Cir. 1998); Wiles v. Capitol Indemnity Corp., 280 F.3d 868, 870 (8th Cir. 2002); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1155 (9th Cir. 1989); Cayman Exploration Corp. v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 & n.2 (10th Cir. 1989); Oxford Asset Management, Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002)
- The R9 requirements are entirely distinct from the current R8 requirements. R9 is not a heightened standard; it is a device to ensure that when certain things are being plead, that the appropriate notice is provided to the defendant so she can mount a competent defense. R9 is about what the defendant needs. R8 after Twombly/Iqbal is about what the justice system demands of all complaints.
- The cost of discovery on defendants is astronomical. As a practical matter, the justice system had been broken by the combination of liberal R8 standards and modern E-discovery. I do think, however, that the court was too quick to dismiss the possibility of phased discovery, which has the potential to avoid the greatest evils of either alternative.
- Now, I certainly think that there are some problems with Twombly/Iqbal. For one, the decisions are somewhat disingenuous, refusing to admit that they are changing the rules on practical grounds. Also, nobody knows exactly what the new standard is. The court has basically announced that the pendulum swung too far, but there's no clear test at this point. This is, to some extent, inevitable. It will take some time for everyone to flesh out the new rules of the game.
Sorry, I got half way through and just have to say blah blah blah.
It is a heightened pleading standard. It is not straight up notice pleading anymore. The effects have not been overstated by people that are rational about it. To say that we are exactly back to code pleading is of course an overexaggeration, but to say it is barely different is itself a gross underexaggeration.