Applying Twombly/Iqbal on Removal

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.