April 30, 2020 Practice Points

Applying Twombly/Iqbal on Removal

Three tips for reviewing complaints removed from notice-pleading jurisdictions.

By Monette Davis

Removal of a case from a notice-pleading jurisdiction (state court) to a fact-pleading jurisdiction (federal court) occurs more often than expected. When removal occurs, a case must comply with the Twombly/Iqbal pleading standards to avoid the likelihood of being dismissed. Additionally, when a complaint is filed, a court must take the alleged facts as true. However, a case can be dismissed, according to Federal Rule of Civil Procedure 12(b)(6), when a plaintiff fails to state a claim upon which relief may be granted. If a complaint fails to allege sufficient facts to support a cognizable legal claim, i.e., a clearly identifiable claim, a court will likely grant a 12(b)(6) motion to dismiss. It is not required for a complaint to set out detailed facts upon which the plaintiff bases his or her claim. Nevertheless, a short and plain statement must give the defendant notice of the plaintiff’s claim and the grounds upon which it rests. This article sets forth tips for applying the Twombly/Iqbal pleading standards in cases removed from notice-pleading jurisdictions.

The Twombly/Iqbal pleading standards not only specify that a complaint must be plausible on its face, but it must bring forth sufficient factual allegations that nudge a claim across the line from conceivable to plausible. In other words, a complaint must not simply allege facts that are merely possible, but the alleged facts must be reasonable and likely to occur.

Here are a few tips of what to observe in a complaint when applying the Twombly/Iqbal standards in cases that are removed to a fact-pleaded jurisdiction.

  1. Carefully identify if a complaint brings forth sufficient facts that nudge a claim across the line from conceivable to plausible. As mentioned above, the alleged facts in a complaint must raise more than a possibility of occurrence. The alleged facts must be reasonable and likely to occur. Additionally, the claim must raise some legal theory that is cognizable as a matter of law. If a complaint fails to raise alleged facts that are plausible, a court will likely grant a 12(b)(6) motion to dismiss.
  2. Determine if a complaint’s sufficient factual allegations establish an entitlement to relief. To effectively dismiss a complaint, a court will look to see if the complaint’s factual allegations are enough to raise a right to relief above the speculative level. This means that a complaint must provide sufficient facts that uncover plausibility in a claim and some form of relief that a plaintiff is entitled. However, if a complaint fails to state a claim in which there is an entitlement to relief and a defendant files a 12(b)(6) motion to dismiss, a court will likely grant the motion.
  3. Establish if a complaint leads to legal conclusions. There is a fine line where a court separates pleadings of fact from pleadings of conclusion. In the event a complaint draws conclusory allegations that prohibits a court from reaching a finding of sufficient facts, the Twombly/Iqbal pleading standards will apply and a court will likely grant a 12(b)(6) motion to dismiss.

Every case is different. But by paying attention to these tips, attorneys can help obtain or avoid dismissal based on their client’s needs.

Monette Davis is an attorney with Stone Pigman Walther Wittmann L.L.C. in New Orleans, Louisiana.


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