January 07, 2021 Feature

“Plausible” Deniability: What Is Required to Overcome a Motion to Dismiss Under the Modern Pleading Regime?

What is required to overcome a motion to dismiss under the modern pleading regime?

Michael J. Miarmi

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Among the 86 Federal Rules of Civil Procedure, Rule 8 is arguably one of the most—if not the most—important, as it sets the initial test all federal plaintiffs must pass in pursuing their claims. And with courts’ increasing imposition of discovery stays during the pendency of motions to dismiss, sufficiently pleading a claim is often a prerequisite to obtaining the facts (often solely within defendants’ possession) in support of that claim. This modern regime poses something of a catch-22 for civil plaintiffs: Allege sufficient factual matter at the outset of a case, when you may have little access to the underlying facts, to allow you to proceed to the fact-gathering stage. On the other hand, subjecting defendants to the often significant costs of discovery without first weeding out truly meritless claims would be inequitable.

Courts have long wrestled with how deeply to scrutinize allegations at the pleading stage, but that question has become even more thorny following two decisions from the U.S. Supreme Court that have altered both the language and the landscape of pleading in civil cases: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Even now, more than a decade after those decisions were issued, courts and commentators continue to render differing interpretations of exactly what the Supreme Court was saying and how much discretion a judge has in deciding whether a plaintiff has satisfied Rule 8’s mandate to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”

As practitioners, though, it is not necessary to attempt to harmonize the myriad appellate decisions interpreting Twombly and Iqbal. There are several pragmatic considerations to think about when crafting allegations, which can help carry a complaint across the threshold at the pleading stage. A history of how the law got to its current place and how practitioners can successfully run the “Twiqbal” gauntlet is discussed below.

Courts have long wrestled with how deeply to scrutinize allegations at the pleading stage, but that question has become even more thorny following two decisions from the U.S. Supreme Court that have altered both the language and the landscape of pleading in civil cases: Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Even now, more than a decade after those decisions were issued, courts and commentators continue to render differing interpretations of exactly what the Supreme Court was saying and how much discretion a judge has in deciding whether a plaintiff has satisfied Rule 8’s mandate to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.”

As practitioners, though, it is not necessary to attempt to harmonize the myriad appellate decisions interpreting Twombly and Iqbal. There are several pragmatic considerations to think about when crafting allegations, which can help carry a complaint across the threshold at the pleading stage. A history of how the law got to its current place and how practitioners can successfully run the “Twiqbal” gauntlet is discussed below.

 Illustration by Sean Kane.

Illustration by Sean Kane.

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