Author’s Note …. It all rests on the JUDGE/S Personal Motives eeerrrrr “Great Experience and Discretion”
The Death of TRIAL BY JURY …. The Discretionary Judicial Abuse of DISMISSAL based on Judicial Experiance and Common Sense AKA …. BYPASSING THE JURY. ( The Judges Discretion Supplants the Fact Finding Jury and Discovery )
The new “plausibility” standard places great discretion in the hands of
judges, who, as the Supreme Court explained in Iqbal, must draw on
“experience and common sense.”
A swindler may appear trustworthy, while an innocent may falsely confess.
Facts alleged in a pleading may be accurate or superficial. Similarly, a
judge’s decision about whether to accept a pleading may or may not appear
“plausible.” As a result, the chief virtue of the new “plausibility” standard is
the transparency of its vice.
“plausible” means “fair” or “reasonable,” but perhaps
only in a superficial sense; what is “plausible” might in fact be “specious” or
used as a “pretext.”6 The word is immune to careful definition. Because of
its ambiguity, it was well selected to expand judicial discretion to dismiss
civil cases. In specific areas of federal civil litigation, the Supreme Court has recently
broadened judges’ discretion to dismiss a wide range of civil petitions: civil
rights claims, habeas petitions, class action certification petitions, and more.
In those contexts, the Courts use words like “reasonable” in ways that bend
their meaning, suggest more objectivity than warranted, and create genuine
confusion between doctrines by using the same word in different ways
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). Defining judicial experience and its relevance to “plausibility” assessments provides yet another challenge. See generally Henry S. Noyes, The Rise of the Common Law of Federal Pleading: Iqbal, Twombly, and the Application of Judicial Experience, 56 VILL. L. REV. 857, 871-78 (2012) (critiquing the Court’s reliance on “judicial experience” by highlighting its failure to explain the term).
Federal Rule Civ Proc 8(a) is supposed to require only notice of the claim, saving proof for discovery
Informal Considerations Under Iqbal and Twombly. Beneath the formal analysis described above are a set of informal considerations, which after Twombly and Iqbal have become increasingly important in litigating a motion to dismiss. While Twombly and Iqbal have formalized the analysis of 12(b)(6) motions significantly, they have by no means eliminated the discretion inherent in deciding one. To the contrary, a court will rely on substantial judgment and intuition in distinguishing between facts and conclusions as well as in determining whether the facts alleged create a plausible inference of liability.
Most generally, and as already suggested, lower courts applying Twombly and Iqbal exercise this discretion differently depending on the circumstances, dismissing as conclusory a greater number of factual allegations or taking a more stringent view of the facts required to create plausibility where the case raises special concerns. The Seventh Circuit, for example, has said so explicitly since Iqbal: “This case is not a complex litigation, and the two remaining defendants do not claim any immunity. But it may be paranoid pro se litigation, … and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.” Cooney v. Rossiter, 583 F.3d 967, 971 (2009) (Posner, J.). The Third Circuit similarly has observed that “[c]ontext matters in notice pleading. Fair notice under Rule 8(a)(2) depends on the type of case….'” Phillips v. County of Allegheny, 515 F.3d 224, 232 (2008).
SEE FOR FOUNDATIONAL EVIDENCE OF HOCUS POCUS “You’re Dismissed “
The application of judicial experience to consider information outside the pleadings is inconsistent with the adversarial process. 190 The claimant will be left in the dark about the information sought out and considered by the court and will not have a chance to test and oppose such information for relevance, reliability, and biases against the crucible of cross-examination and the other evidentiary mechanisms and litigation processes that are consistent with the adversarial process. 19 1 As Professor Darrel A.H. Miller states:
Where Iqbal goes wrong is in its articulation of a standard that seems to privilege experience, without demanding impartiality. Iqbal seems to invite judges to determine plausibility based upon their own experience, rather than forcing them to do the hard work to imagine themselves in the scenario presented within the four corners of the complaint. ‘Judicial experience” in operation looks too much like “my experience.” And “my experience” may or may not include the experience of the litigants.’ 9 2
Twombly and Iqbal now permit a district court judge to go beyond the universe of facts created by the plaintiff to determine whether the plaintiffs allegations convince the court that plaintiffs claim is plausible. It is unfair and improper to resolve a dispute on grounds which the parties had no chance to contest and offer evidence and argument.
1 9 3 189. FED. R. Civ. P. 12(d), 56(d); see, e.g., Mid-South Grizzlies v. Nat’l Football League, 720 F.2d 772, 779-80 (3d Cir. 1983) (holding that requests for continuance should be granted “almost as a matter of course” when party opposing motion can point to discovery it needs to obtain evidence from moving party); Hawkins v. Donovan, 269 F.R.D. 6, 7-8 (D.D.C. 2010) (holding that evidence presented sufficiently demonstrated that plaintiff was entitled to discovery before litigating on merits of claim). 190. See Clermont & VILLANOVA LAW REVIEW
Consideration of information beyond that alleged in the complaint, even where it calls for a purely objective determination, also permits trial courts a significant amount of discretion. 19 4 This grant of discretion is inappropriate because it requires the district courts to make complex and important policy decisions that are normally left to the Legislative and Executive Branches. 1 9 5 Drawing lines and creating a hierarchy of pleading standards requires “detailed knowledge about the underlying substantive law and the practicalities of litigating claims arising under that law.”196 Trial courts are not the appropriate body to make such public policy decisions, particularly because these important judgments will be implemented by hundreds of judges faced with thousands of cases, most of which are unique. Few cases (maybe none) will permit individual judges to immerse themselves in the underlying substantive law and the policy choices that helped define this law-especially, as the Supreme Court demands, at the pleading stage.1 97
Finally, the expansion of the trial court’s discretionary powers is a one-way ratchet at the pleading stage; the Supreme Court was not inviting the application of more lax pleading standards. The Court intends the exercise of judicial discretion to result in dismissal of a greater number of cases. 19 8 This problem was specifically identified by the Rules Committee when it considered the task of creating a hierarchy of “claim-specific trial court dismissal by creating a more complete record of the case.” (footnote omitted)).
194. See Martin v. United States, 96 Fed. Cl. 627, 632 (2011) (“The Supreme Court expressly afforded trial courts discretion in ascertaining whether a plaintiff has alleged a plausible claim, urging trial courts to ‘draw upon [their] judicial experience and common sense.’ (alteration in original) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009))); Kenneth S. Klein, In Discretion: The Consequences ofTwombly and Iqbal, PRETRIAL PRACTICE & DiscovkRy (ABA Sec. on Litig.) Fall 2010, at 22 (“[T]he Court has signaled a grant of super-discretion to the trial courts.”). 195. See Noll, supra note 76, at 139-40; Klein, supra note 194, at 22. 196. See Rules Committee Minutes, supra note 166, at 38; see also Anderson & Huffman, supra note 32, at 28 (“Each element of each claim in each area of substantive law needs to be examined to assess whether the high plausibility standard applied in Twombly and Iqbal is justified.”). 197. See Bone, supra note 70; Klein, supra note 194, at 22; see also Noll, supra note 76, at 139-40 (“More broadly, increased use ofjudgmental facts increases the power ofjudges vis-A-vis Congress, the Executive Branch, and the agencies to determine the kind of cases that receive a hearing in federal court. As Iqbal pointedly illustrates, a court’s reliance on judgmental facts can directly affect whether particular forms of primary conduct support a federal suit designed to test the legality of that conduct. To the extent judges define and shape judgmental facts, they exercise a power which is not easily distinguished from the legislative power to define norms of substantive law.”). 198. See Bone, supra note 70, at 870; Noll, supra note 76, at 149 (“The fact that the Supreme Court dismissed two complaints, including a complaint seven federal judges found sufficient, indicates a new willingness to decide cases on the pleadings, and the analysis here ignores the signaling effect of this exercise of judicial power by the Nation’s highest court.”). 898 [Vol. 56: p. 857 42 Villanova Law Review, Vol. 56, Iss. 5 , Art. 4 http://digitalcommons.law.villanova.edu/vlr/vol56/iss5/4 2012] RISE OF THE COMMON LAW OF FEDERAL PLEADING pleading rules.” The committee warned about the “perception that the seemingly procedural pleading rules are surreptitiously motivated by distaste for the substantive rights or defenses subjected to higher standards.”1 99
X. CONCLUSION Professors Yeazell and Clermont assert “that by blazing a new and unclear path alone and without adequate warning or thought [the Supreme Court] left the pleading system in shambles.”20 0 Arguing that Twombly and Iqbal destabilized the federal pleading regime, they assert that one cause of that destabilization was the addition of the new plausibility standard, an imprecise term that has not yet been defined satisfactorily. As this Article demonstrates, another cause of that destabilization was the addition of the new requirement that district courts apply judicial experience to resolve motions to dismiss.
In this Article, I describe the meaning of “judicial experience” that the Supreme Court intends. The Supreme Court believes that the system of litigation must be protected from cases that are not meritless, but are deemed objectively unworthy. To save the system, the Court wants to develop rules and standards that will restrict the number of cases that survive a motion to dismiss. The Court therefore has tasked federal courts with development of a common law of federal pleading. The Court proclaims that this new regime does not require “heightened fact pleading of specifics.” Instead, the Court offers a universal plausibility standard applicable to all civil actions. But the meaning of plausibility is context-specific and dependent upon judicial experience with similar claims and claimants.
If I am correct in ascertaining the meaning that the Supreme Court ascribes to judicial experience, then the development of a common law of federal pleading will require district court judges to change their traditional role in the adversarial process and become active players in the game of litigation. They must independently investigate and make judgments about the accuracy, reasonableness, and truth of the picture of reality painted by a claimant in a complaint. They also must prejudge each action. Based on objective judicial experience and the views of experts and commentators regarding the chances for success, district courts will disfavor certain types of claims and certain types of claimants and defendants. They will then employ a more rigorous pleading standard to weed out dubious claims. The Court explicitly rejects heightened fact pleading of specifics, but invites district courts to set the bar of plausibility at different heights based on judicial experience.
In the Introduction, I quoted Chief Justice Roberts’s now-famous statement that ajudge’s job is to “call balls and strikes, and not to pitch or 199. Rules Committee Minutes, supra note 166, at 38. 200. Clermont & Yeazell, supra note 60, at 823. 899 43 Noyes: The Rise of the Common Law of Federal Pleading: Iqbal, Twombly, a Published by Villanova University Charles Widger School of Law Digital Repository, 2012 900 VILLANOVA LAW REVIEw [Vol. 56: p. 857 bat.”20 1
I then noted that the Supreme Court has asked district courts to suit up and get in the game. Continuing with the baseball theme, maybe a better analogy is that the Supreme Court wants federal district courts to act less like an umpire and more like representatives of the commissioner’s office. The intended application of judicial experience requires the federal courts to employ the rules in a more stringent fashion against the objectively weaker team to protect against a “lucky” upset that is bad for the larger, long-term interests of baseball. The players and the public should cry foul. 201. Roberts Confirmation Hearing, supra note 4, at 56.
Federal Rule 8 Notice Pleadings CRUCIFIED
Supreme Court Rewrites Pleading Requirements … – SCOTUSblog
The Supreme Court’s New Notice Pleading Requirements – Willamette …
May 13, 2016 – fact pleading replaced the issue pleading of the common law, distinguishing “facts” … that under the federal rules there is “no pleading requirement of ….. increase in the burdens of discovery that the Court based the need for.
the myth of notice pleading – Arizona Law Review
By Hyper Technicalities the JUDICIAL MAFIA have Stripped the American People of Their ” SO CALLED ” Rights. The infuriating reality is A GREAT MAJORITY of “So Called” Americans are so UNEDUCATED …. They do not see it and so fluoridated They Do Not Even Care. AMERICANS Massively Dumbed Down GO FIGURE. JBW
“We may well be on our way to a society overrun by hordes of lawyers, hungry as locusts, and brigades of judges in numbers never before contemplated.” —Chief Justice Warren E. Burger
Last year TIME cited the Chief Justice’s grim prediction in a cover story about “Those #@!!! Lawyers.” The cover this week examines the second object of Burger’s concern, His Honor’s increasingly powerful colleagues on the bench. To assess the rapid expansion of judicial authority in the U.S. and the delays, anachronisms and inefficiencies that plague the nation’s courts, TIME correspondents…
Lying Liars and the Prevarications They Use … US Constitution Suspended SEE https://www.google.com/search?source=hp&ei=FkcQWraiAYHbmwHGxIiwBg&q=Judicial+Tyranny+Justice+Denied+&oq=Judicial+Tyranny+Justice+Denied+&gs_l=psy-ab.12…178568.196795.0.199922.214.171.124.0.0.0.1358.4968.6-3j2.5.0….0…1.1….
The Courts are a SWAMP a CESSPOOL https://www.bing.com/search?q=trillions+looted+government+corruption&FORM=HDRSC1
and Professor Martin Redish about the constitutionality of court–stripping …. individual rights, it is unconstitutional for Congress to preclude the courts from … Citizens for Independent Courts Task Force on the Role of the Legislature in Setting.
In the Civil Rights Cases of 1883, the United States Supreme Court ruled that the Civil Rights Act of 1875, which had prohibited racial discrimination in hotels, trains, and other public places, was unconstitutional. In an 8-1 decision, the court ruled that the Thirteenth and Fourteenth Amendments to the Constitution did not give Congress the power to regulate the affairs of private individuals and businesses.
During the post-Civil War Reconstruction Period between 1866 and 1875, Congress passed several civil rights laws intended to implement the Thirteenth and Fourteenth Amendments. The last and most aggressive of these laws, the Civil Rights Act of 1875, imposed criminal penalties against the owners of private businesses or modes of transportation that restricted access to their facilities because of race.
The law read, in part: “… all persons within the jurisdiction of the United States shall be entitled to the full and equal enjoyment of the accommodations, advantages, facilities, and privileges of inns, public conveyances on land or water, theaters, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.”
Many people in both the South and the North objected to the Civil Rights Act of 1875, arguing that the law unfairly infringed on personal freedom of choice. Indeed, the legislatures of some Southern states had already enacted laws allowing separate public facilities for whites and African Americans.
Details of the Civil Rights Cases of 1883
In the Civil Rights Cases of 1883, the Supreme Court took the rare route of deciding five separate but closely related cases with one unified ruling.
The five cases (United States v. Stanley, United States v. Ryan, United States v. Nichols, United States v. Singleton, and Robinson v. Memphis & Charleston Railroad) reached the Supreme Court on appeal from the lower federal courts and involved suits filed by African American citizens claiming they had been illegally been refused equal access to restaurants, hotels, theaters, and trains as required by the Civil Rights Act of 1875.
During this time, many businesses had attempted to skirt the letter of the Civil Rights Act of 1875 by allowing African Americans to use their facilities, but forcing them to occupy separate “Colored Only” areas.
The Supreme Court was asked to decide the constitutionality of the Civil Rights Act of 1875 in light of the Equal Protection Clause of the 14th Amendment. Specifically, the court considered:
- Did the Equal Protection Clause of the 14th Amendment apply to the day-to-day operations of privately-owned businesses?
- What specific protections did the 13th and 14th amendments provide for private citizens?
- Did the 14th Amendment, which prohibits state governments from practicing racial discrimination, also ban private individuals from discriminating under their right to “freedom of choice?” In other words, was “private racial segregation,” like designating “Coloreds Only” and “Whites Only” areas legal?
The Arguments Presented to the Court
Over the course of the case, the Supreme Court heard arguments for and against allowing private racial segregation and, thus, the constitutionality of the Civil Rights Act of 1875.
Ban Private Racial Segregation: Because the intent of the 13th and 14th Amendments had been to “remove the last vestiges of slavery” from America, the Civil Rights Act of 1875 was constitutional. By sanctioning practices of private racial discrimination, the Supreme Court would “permit the badges and incidents of slavery” to remain a part of Americans’ lives. The Constitution grants the federal governmentthe power to prevent state governments from taking actions that deprive any U.S. citizen of his or her civil rights.
Allow Private Racial Segregation: The 14th Amendment banned only the state governments from practicing racial discrimination, not private citizens. The 14th Amendment specifically declares, in part, “… nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Enacted and enforced by the federal, rather than the state governments. The Civil Rights Act of 1875 unconstitutionally infringed on the rights of private citizens to use and operate their property and businesses as they saw fit.
The Court’s Decision and Reasoning
In an 8-1 opinion written by Justice Joseph P. Bradley, the Supreme Court found the Civil Rights Act of 1875 to be unconstitutional. Justice Bradley declared that neither the 13th nor the 14th Amendment granted Congress the power to enact laws dealing with racial discrimination by private citizens or businesses.
Of the 13th Amendment, Bradley wrote, “The 13th Amendment has respect, not to distinctions of race … but to slavery.” Bradley added, “The 13th Amendment relates to slavery and involuntary servitude (which it abolishes); … yet such legislative power extends only to the subject of slavery and its incidents; and the denial of equal accommodations in inns, public conveyances and places of public amusement (which is forbidden by the sections in question), imposes no badge of slavery or involuntary servitude upon the party, but at most, infringes rights which are protected from State aggression by the 14th Amendment.”
Justice Bradley went on to agree with the argument that the 14th Amendment applied only to the states, not to private citizens or businesses. “The 14th Amendment is prohibitory upon the States only, and the legislation authorized to be adopted by Congress for enforcing it is not direct legislation on the matters respecting which the States are prohibited from making or enforcing certain laws, or doing certain acts, but it is corrective legislation, such as may be necessary or proper for counteracting and redressing the effect of such laws or acts,” he wrote.
The Lone Dissent of Justice Harlan
Justice John Marshall Harlan wrote the only dissenting opinion in the Civil Rights Cases. Harlan’s belief that the majority’s “narrow and artificial” interpretation 13th and 14th Amendments led him to write, “I cannot resist the conclusion that the substance and spirit of the recent amendments of the Constitution have been sacrificed by a subtle and ingenious verbal criticism.”
Harlan wrote that the 13th Amendment did far more than “to prohibit slavery as an institution,” it also “established and decreed universal civil freedom throughout the United States.”
In addition, noted Harlan, Section II of the 13th Amendment decreed that “Congress shall have power to enforce this article by appropriate legislation,” and had thus been the basis for the enactment of the Civil Rights Act of 1866, which granted full citizenship to all persons born in the United States.
Basically, Harlan contended that the 13th and 14th Amendments, as well as the Civil Rights Act of 1875, were constitutional acts of Congress intended to ensure African Americans the same rights to access and use of public facilities that white citizens took for granted as their natural right.
In summary, Harlan stated that the federal government had both the authority and the responsibility to protect citizens from any actions that deprive them of their rights and to allow private racial discrimination would “permit the badges and incidents of slavery” to remain.
Impact of the Civil Rights Cases Decision
The Supreme Court’s decision in the Civil Rights Cases virtually stripped the federal government of any power to ensure African Americans equal protection under the law. As Justice Harlan had predicted in his dissent, freed of the threat of federal restrictions, Southern states began enacting laws sanctioning racial segregation.
In 1896, the Supreme Court cited its Civil Rights Cases ruling in its landmark Plessy v. Ferguson decision declaring that requiring separate facilities for blacks and whites was constitutional as long as those facilities were “equal” and that racial segregation itself did not amount to unlawful discrimination.
So-called “separate but equal” segregated facilities, including schools, would persist for over 80 years until the Civil Rights Movement of the 1960s swayed public opinion to oppose racial discrimination.
The next prong of the Twombly-Iqbal test: Are the well pleaded allegations plausible ? After the district court has identified and taken as true a complaint’s well-pleaded allegations, it must “then determine whether they plausibly give rise to an …
John Gentry I am so very grateful that finally the press is starting to tell the story of our corrupt and broken judiciary.
This story includes a small portion of my Petition of Remonstrance, to be filed with the General Assembly in a few days.
I provided a draft copy of the full document to a couple legislators that I have a meeting with today. I prey they will take action to curtail rampant corruption and begin to heal our nation.
This excerpt from the petition for remonstrance by John Gentry of Goodlettsville, Tenn., argues that the general assembly should impose reforms on a political and legal system gridlocked in favor of the attorney and judicial classes.
By John Gentry, CPA
The undeniable fact that constitutionally guaranteed rights are no longer enforceable for Tennesseans, alone provides sound basis for General Assembly to exercise its supervisory power. No matter the crime or rights violation, Tennesseans cannot enforce their rights against state court judges, even when only seeking equitable relief. (1) If a citizen complains of rights violations or crimes perpetrated against them by a state court judge to The Tenn. Bd. of Judicial Conduct (TBJC), the complaint is dismissed.The TBJC does not dispute the fact that the TBJC dismisses 100% of complaints filed by non-legal professionals.(2) If suit is brought against the state court judge in state or federal court, the state asserts that “sovereign immunity” protects them in their official capacity and so too are these cases dismissed, even when only equitable relief is sought.(3) In both federal and state courts, if suit is brought against a state court judge in his personal capacity, the state asserts “judicial immunity” protects them in their personal capacity, and again, the courts always dismiss these cases too, even when only equitable relief is sought.(4) If suit is brought against the state for rights violations, the defense of “sovereign immunity” is used as a false cloak to deny enforcement of constitutionally guaranteed rights.(5) If a Tennessean attempts to bring suit against a “governmental entity” for rights or federal law violations, the state has enacted unconstitutional statute providing false and unconstitutional immunity from suit (see below) as well the sovereign immunity defense. These undisputed facts leave no doubt that Tennesseans are provided no means to redress grievances against the state or its officials for rights violations. This singular fact provides sound basis for this General Assembly to assert its supervisory power.According to the Chief Clerk of the House of Representatives, Tammy Letzler, the last time a Remonstrance was submitted to Tennessee’s General Assembly was in the year 1850. It should have never become necessary for this Petitioner to Remonstrate before this General Assembly. Your petitioner has humbly sought the protection of his government and redress through every possible channel, including law enforcement agencies, oversight agencies, state and federal courts, and even our highest court – all in vain. This matter brought before this General Assembly, is quite simply, history repeating itself. Have we not learned from the lessons of the past?Does one not comprehend the similarities between this matter and the causes of our founders that led to our Declaration of Independence? Consider the words of Patrick Henry in his “Give me liberty or give me death speech.”
Shall we try argument? Sir, we have been trying that for the last ten years. Have we anything new to offer upon the subject? Nothing. We have held 24 the subject up in every light of which it is capable; but it has been all in vain. Shall we resort to entreaty and humble supplication? What terms shall we find which have not been already exhausted? Let us not, I beseech you, sir, deceive ourselves. Sir, we have done everything that could be done, to avert the storm which is now coming on. We have petitioned; we have remonstrated; we have supplicated; we have prostrated ourselves before the throne, and have implored its interposition to arrest the tyrannical hands of the ministry and Parliament. Our petitions have been slighted; our remonstrances have produced additional violence and insult; our supplications have been disregarded; and we have been spurned, with contempt, from the foot of the throne. In vain, after these things, may we indulge the fond hope of peace and reconciliation. There is no longer any room for hope. If we wish to be free, if we mean to preserve inviolate those inestimable privileges for which we have been so long contending, if we mean not basely to abandon the noble struggle in which we have been so long engaged, and which we have pledged ourselves never to abandon until the glorious object of our contest shall be obtained, we must fight! I repeat it, sir, we must fight! An appeal to arms and to the God of Hosts is all that is left us!
Already today, we see vigilante justice occurring because THE PEOPLE have no means for redress of grievances against state officials, particularly those involved in family court and child custody cases.‡ In recent news, little covered by the media; a shootout on the steps of a courthouse outside Chicago; eight social workers and attorneys killed in a shooting rampage in Arizona; and the all too common story of a spousal suicide-murder that includes children. How many more of these stories before proper action is taken to address the underlying problem of rampant court corruption and vexatious litigation? Correlation can even be found in the school shootings of which the entire nation is appalled, where the shooters are the product of parental alienation and vexatious litigation.This is exactly the concern our president stated in executive order, referenced above: “Human rights abuse and corruption perpetuate violent conflicts; facilitate the activities of dangerous persons.” Rather than addressing the underlying problem causing the need for courthouse security, which is injustice served by corrupted court proceedings, the state has budgeted one million dollars ($1,000,000) for the single purpose of studying enhancement of court security, which is in analogy, to prescribe an aspirin for a headache caused by brain tumor.In his book, THE FRATERNITY, Lawyers and Judges in Collusion, Judge Molloy noted that prior to corruption of our legal processes, court security had been unnecessary. If further failure of the government persists in failing to redress grievances, then eventually THE PEOPLE will findthemselves in the circumstance of our founders with no choice but to abolish the government and start over.As also stated in Patrick Henry’s speech: “I have but one lamp by which my feet are guided; and that is the lamp of experience. I know of no way of judging of the future but by the past.” No person can predict the future, but our present circumstance of tyrannical courts can have but only one outcome, which is reform either from within the government or through THE PEOPLE, with the former being preferred to the latter. Knowing the lessons of the past, and through study of history, our present circumstance suggests we are only one or two generations away from large scale and organized demand for reform. Why wait for such a tipping point, when it remains within the power of the legislature to begin implementing corrective measures. Many lives can be saved, and our economy strengthened, if proactive action is taken now.‡ It is important to note that petitioner does not have children, and is not a victim parental alienation. As a result of his advocacy, communicating with thousands of persons across the nation, the pain of parental alienation, and criminal abduction of children under color of law, studies evidence tremendous emotional and mental damage to both parents and children.
TABLE OF CONTENTS
Introduction ……………………………………………………………………………. 554
I. An Overview of the Federal Pleading Standards ……………….. 557
A. The World Before Twombly ……………………………………….. 557
1. Conley v. Gibson ……………………………………………………. 558
2. The 12(b)(6) spiel ………………………………………………. 561
a. The “extraordinary” nature of 12(b)(6)
motions …………………………………………………………. 562
b. The plaintiff gets the benefit of the doubt ……….. 562
c. Pro se plaintiffs get even more benefit of the
doubt ……………………………………………………………. 563
d. The complaint does not have to identify the
legal name for the claim it is attempting to
assert …………………………………………………………….. 563
e. The “conclusory” conundrum ………………………… 563
3. The resistance to “notice pleading” ………………………. 566
B. The New “Plausibility” Standard: Bell Atlantic Corp. v.
Twombly ……………………………………………………………………. 569
C. Twombly on Steroids: Ashcroft v. Iqbal …………………………. 575
D. Where We A
554 AMERICAN UNIVERSITY LAW REVIEW [Vol. 59:553
B. Coding the Cases ……………………………………………………… 589
1. Identifying information ……………………………………….. 589
2. Independent variables …………………………………………. 589
3. Dependent variables ……………………………………………. 596
III. Results …………………………………………………………………………… 596
A. Two-Way Tables and Graphs ……………………………………… 597
1. Differences in overall rulings on 12(b)(6) motions … 597
2. Differences in rulings by nature of suit …………………. 602
3. Differences in rulings by district courts in different
circuit courts of appeals ……………………………………….. 609
4. The effect of pro se plaintiffs …………………………………. 613
5. The effects of other factors ………………………………….. 615
6. Frequency of cases in the Database that were
entirely dismissed upon a grant of a 12(b)(6)
motion without leave to amend ……………………………. 615
B. Logistic Regressions …………………………………………………. 616
1. Multinomial logistic regression using the ruling on
the 12(b)(6) motion as the dependent variable …….. 616
2. Logistic regression using the factor of whether the
case was entirely dismissed as the dependent
variable ………………………………………………………………. 622
Conclusion ……………………………………………………………………………… 624
Appendix ……………………………………………………………………………….. 626
In 2007, the Supreme Court issued its opinion in Bell Atlantic Corp.
sending “shockwaves” through the federal litigation bar.2
Seemingly without prior warning,3
the Court abrogated “the accepted
rule that a complaint should not be dismissed for failure to state a
claim 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”—the standard for deciding 12(b)(6) motions first stated fifty
years earlier in Conley v. Gibson.
To replace the old rule, the Court
announced a new “plausibility” standard: that a complaint must
1. 550 U.S. 544 (2007).
2. Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the
Lower Courts After Bell Atlantic Corp. v. Twombly, 41 SUFFOLK U. L. REV. 851, 852
3. See, e.g., Thampi v. Collier County Bd. of Comm’rs, No. 2:04-cv-441-FtM29SPC, 2006 WL 2460654, at *1 (M.D. Fla. Aug. 23, 2006) (“The federal notice
pleading standards are well settled.”); McMahon, supra note 2, at 855 (“[T]he Conley
standard was clear and well-settled.”).
4. 355 U.S. 41, 45–46 (1957); see FED. R. CIV. P. 12(b)(6) (“[A] party may assert
the following defenses by motion: . . . failure to state a claim upon which relief can
be granted . . . .”).
2010] DO TWOMBLY AND IQBAL MATTER EMPIRICALLY? 555
allege “enough facts to state a claim to relief that is plausible on its
Twombly contained some indications that the Court intended to
limit its holding to Sherman Act cases.6
Nonetheless, the federal
courts largely embraced Twombly’s “plausibility” standard for all
Almost two years to the day after Twombly, the Supreme Court
laid the matter to rest in Ashcroft v. Iqbal,
holding that the Twombly
“plausibility” standard applies to all cases.9
Iqbal further explained
that “judicial experience and common sense” should inform the
In addition, Iqbal set forth a “two-pronged” approach to 12(b)(6)
motions. First, the court should identify and ignore all “conclusions”
from the complaint not entitled to be taken as true for purposes of
the motion to dismiss.11 Second, the court should apply the
“plausibility” standard to the complaint’s remaining allegations.12
If Twombly caused a shock, Iqbal struck a blow. A firestorm of
protest ensued over Iqbal’s alleged judicial activism. For example,
Senator Arlen Specter recently introduced a bill that would attempt
to turn the clock back by reinstating “the standards set forth by the
Supreme Court of the United States in Conley v. Gibson.”13
Absorbed by the vigorous academic debate, I wondered if it could
be empirically demonstrated that district courts ruled much
differently on 12(b)(6) motions after Twombly. Thus, for this Article,
I conducted an empirical analysis of the effects of the different
Supreme Court standards on rulings on 12(b)(6) motions in the
federal district courts.
I chose, as randomly as possible, 1200 cases (500 from each of the
two-year periods before and after Twombly), and I coded the cases for
5. Twombly, 550 U.S. at 570.
6. See id. at 553 (“We granted certiorari to address the proper standard for
pleading an antitrust conspiracy through allegations of parallel conduct . . . .”); id. at
554–55 (“This case presents the antecedent question of what a plaintiff must plead in
order to state a claim under § 1 of the Sherman Act.”); id. at 558–59 (discussing the
expense of discovery in antitrust cases).
7. In reviewing cases to be selected for inclusion in this study, I found only one
district court case in which the court refused to apply Twombly in a non-antitrust case.
See Orthovita, Inc. v. Erbe, No. 07-2395, 2008 WL 423446, at *9 (E.D. Pa. Feb. 14,
2008). Most of the U.S. Courts of Appeals eventually adopted the “plausibility”
standard for all civil cases, but some characterized Twombly as effecting only modest
change. See infra notes 137–144 and accompanying text.
8. 129 S. Ct. 1937 (2009).
9. Id. at 1953.
10. Id. at 1950.
13. Notice Pleading Restoration Act, S. 1504, 111th Cong. (2009).
556 AMERICAN UNIVERSITY LAW REVIEW [Vol. 59:553
their rulings and other characteristics in a database (the “Database”).
Because Iqbal was decided recently, I chose (again, as randomly as
possible) 200 cases decided on 12(b)(6) motions under Iqbal from
May–August 2009, and I included them in the Database.
My statistical analysis of the cases in the Database suggests that a
surprisingly large percentage of 12(b)(6) motions was being granted
(with or without leave to amend) under Conley—46% from May 2005
to May 2007. From May 2007 to May 2009, after Twombly was decided,
the percentage of 12(b)(6) motions granted grew to 48%—not a
remarkable increase. But since Iqbal was decided, a higher
percentage of 12(b)(6) motions has been granted: 56% of the
12(b)(6) motions from May 2009 to August 2009 were granted.
However, the short time span and smaller number of Iqbal cases
counsel caution in interpreting the data.
Part I of this Article describes Conley, Twombly, and Iqbal, and
surveys the development of the pleading standards in the fifty-two
years spanned by these cases. I conclude, as have other
commentators, that although courts continued to pay lip service to
the “notice pleading” ideal of Conley, in practice, the standard was
seriously eroded by the time Twombly was decided. Iqbal, though,
contains not even a passing reference to notice pleading, and may
portend the end of this liberal regime in the federal courts.
Part II outlines the design of the empirical study, and Part III
presents a statistical analysis of the data. The analysis reveals that
49% of the 12(b)(6) motions were granted (with or without leave to
amend) over the time period of the study. Further, it confirms that
the rate at which such motions were granted increased from Conley to
Twombly to Iqbal, although grants with leave to amend accounted for
much of the increase. In addition, the results of a multinomial
logistic regression indicate that under Twombly, the odds that a
12(b)(6) motion would be granted with leave to amend, rather than
denied, were 1.81 times greater than under Conley, holding all other
variables constant. Under Iqbal, the odds that a 12(b)(6) motion
would be granted with leave to amend, rather than denied, were over
four times greater than under Conley, holding all other variables
constant. Moreover, in the largest category of cases in which
12(b)(6) motions were filed—constitutional civil rights cases—
motions to dismiss were granted at a higher rate (53%) than in all
cases combined (49%), and the rate 12(b)(6) motions were granted
in those cases increased from Conley (50%) to Twombly (55%) to Iqbal
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Part IV concludes, with some caution, that Twombly and Iqbal have
significantly increased the rate at which 12(b)(6) motions have been
granted by district courts, and suggests that this result, if desirable,
should be accomplished by the normal rule amendment process
rather than by a ruling of the Court.
I. AN OVERVIEW OF THE FEDERAL PLEADING STANDARDS
A. The World Before Twombly
The reformist philosophy and merits-based focus of the Federal
Rules of Civil Procedure (“FRCP”), first adopted in 1938, have been
well chronicled elsewhere.14 For my purposes here, it suffices to say
that Rule 8(a)(2) of the FRCP—unchanged since 1938—requires a
complaint (or other pleading seeking relief) to contain “a short and
plain statement of the claim showing that the pleader is entitled to
relief.”15 The drafters chose this language deliberately to signal the
softening of an earlier pleading regime known as “code pleading,”
under which the equivalent requirement was that a complaint
contain a “statement of the facts constituting the cause of action.”16
Case law in code pleading regimes had devolved into endless,
technical bickering about distinctions between “ultimate facts,”
“evidence,” and “conclusions.”17 Thus, the FRCP’s use of the phrase,
“claim showing that the pleader is entitled to relief,” instead of the
phrase from the code pleading standard, “facts sufficient to constitute
a cause of action,” was an attempt to create a standard that would
14. See, e.g., Bell Atl. Corp. v. Twombly, 550 U.S. 544, 575 (Stevens, J., dissenting)
(noting that Rule 8 of the FRCP was designed with flexibility to allow more frequent
examination of the merits of a claim); Robert G. Bone, Twombly, Pleading Rules, and
the Regulation of Court Access, 94 IOWA L. REV. 873, 890–98 (2009) (highlighting the
vision of the FRCP drafters to make pleading rules more fair and efficient); Charles
E. Clark, Simplified Pleading, 2 F.R.D. 456, 458–60
558 AMERICAN UNIVERSITY LAW REVIEW [Vol. 59:553
reach the merits of a dispute rather than one that would terminate a
plaintiff’s case on technical grounds at the outset.18
Yet there were still rival pleadings philosophies. One of the FRCP’s
primary draftsmen, Judge Charles Clark, was convinced that
pleadings motions were wasteful and often unjust, and would have
eliminated them altogether.19 The opposing camp, however,
emphasized the need for some screening effort to prevent
nonmeritorious cases from proceeding.20 The Supreme Court in
Conley sided mostly with Judge Clark, at least for the moment.
1. Conley v. Gibson
The Conley “no set of facts” language materialized in the Court’s
opinion even though the lower courts had not discussed the pleading
issue and even though the plaintiffs had hardly briefed the issue
before the Court.21
Conley was brought as a putative class action by
“certain Negro members of the Brotherhood of Railway and
Steamship Clerks . . . against the Brotherhood, its Local Union No.
28 and certain officers of both” (collectively, the “Union”).22
Plaintiffs alleged that they were employed by the Texas and New
Orleans Railroad in Houston, and that Local 28 was their designated
bargaining agent under the Railway Labor Act (“RLA”).23 The
collective bargaining agreement between the railroad and the Union
provided some protection to the Union members against loss of
employment or seniority.24 The complaint alleged that despite the
existence of this protection, the railroad had “abolished” forty-five
jobs held by Negroes and then refilled (through a wholly owned
subsidiary) those jobs with either white employees or Negroes
18. See, e.g., Dioguardi v. Durning, 139 F.2d 774, 775 (2d Cir. 1944). Referring to
the district court’s grant of a 12(b)(6) motion under the Code pleading standard,
Judge Clark stated, “[H]ere is another instance of judicial haste which in the long
run makes waste.” Id.
19. Clark, supra note 14, at 456.
20. See, e.g., Bone, supra note 14, at 890 (identifying many courts’ concerns about
backlog, costs, and delay as reasons to support a higher level of screening).
21. Despite Justice Black’s statement in Conley that the issue had been “briefed . .
. by both parties,” Conley v. Gibson, 355 U.S. 41, 45 (1957), in fact, only the Union
expressly addressed pleading issues in its brief to the Supreme Court. See Petitioner’s
Brief at 3–4, Conley v. Gibson, 355 U.S. 41 (1957) (No. 7), 1957 WL 87661
[hereinafter Pet’r’s Br.]. For a further discussion of the “accidental” nature of
Conley’s prominence, see Emily Sherwin, The Story of Conley: Precedent by Accident, in
CIVIL PROCEDURE STORIES 295 (Kevin M. Clermont ed., 2008).
22. Conley, 355 U.S. at 42. Gibson, the named defendant, was the General
Chairman of Local Union No. 28.
23. Id. at 43; see also Railway Labor Act, ch. 347, 44 Stat. 577 (1926) (codified as
amended at 45 U.S.C. §§ 151–88 (2006)).
24. Conley, 355 U.S. at 43.
2010] DO TWOMBLY AND IQBAL MATTER EMPIRICALLY? 559
“rehired” with loss of seniority.25 The complaint alleged further that
despite plaintiffs’ requests, the Union did nothing to prevent or
protest these discriminatory discharges as it would have done if the
plaintiffs had been white.26
Plaintiffs’ legal claim was that the Union had violated their rights
to fair representation under the RLA.27 The Union moved to dismiss
the complaint for lack of jurisdiction (arguing that the National
Railroad Adjustment Board (“Adjustment Board”) had exclusive
jurisdiction), failure to join an indispensable party (the railroad), and
failure to state a claim upon which relief could be granted.28
The lower courts addressed only the jurisdictional issue, and thus
found it unnecessary to reach the pleading issue. The district court
held that it lacked jurisdiction under the RLA “since plaintiffs
raise[d] no question of the lawfulness of the selection of Local 28 as a
bargaining agent, nor of the validity of [the collective] bargaining
agreement.”29 The appellate court affirmed per curiam and
essentially without opinion, except for the citation of two cases
The Conley Court made short shrift of the jurisdictional issue,
pointing out that this was a dispute between an employee and his
union and that the RLA conferred exclusive jurisdiction on the
Adjustment Board only in “disputes between an employee . . . and a
carrier.”31 The Court then cursorily held that the railroad was not an
indispensable party and then turned to the pleading issue for which
the case is known.32
Frequently, courts citing Conley overlook that fact that the Court’s
pleading analysis proceeded in two parts, only the first of which
invoked the infamous “no set of facts” language. The two parts
correspond to two ideas often invoked in pleadings disputes:
the legal sufficiency of a claim and the requisite level of specificity of
29. Conley v. Gibson, 138 F. Supp. 60, 62 (S.D. Tex. 1955), aff’d, 229 F.2d 436
(5th Cir. 1956), rev’d, 355 U.S. 41 (1957).
30. Conley v. Gibson, 229 F.2d 436, 436 (5th Cir. 1956), rev’d, 355 U.S. 41 (1957).
31. Conley, 355 U.S. at 44 (quoting 45 U.S.C. § 153 First (i) (2006)).
32. Id. at 45.
33. See, e.g., Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)
(stating that a court can dismiss where a legal theory is not asserted or where
sufficient facts are not alleged).
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The Union made both arguments in its Supreme Court brief, but it
did not organize or label them as such. First, as to “legal sufficiency,”
the then-governing law under Supreme Court precedent was “that an
exclusive bargaining agent under the Railway Labor Act is obligated
to represent all employees in the bargaining unit fairly and without
discrimination because of race and . . . the courts have power to
protect employees against such invidious discrimination.”34 The
Union conceded this principle, but argued that the complaint’s
allegation that the Union failed to protest the firings and rehirings
was insufficient to constitute discrimination; otherwise, a union
would be required to protest each time a union member had a
grievance with an employer, regardless of the merit of the grievance.35
Admittedly, this is a strained argument that conveniently overlooks
the thrust of the complaint; but in concept, it is a legal sufficiency
argument: plaintiff complains that the Union did not protest, but the
duty of fair representation does not require it to protest.
At this point, the Court expounded the “no set of facts” language
that Twombly would later abrogate:
In appraising the sufficiency of the complaint we follow, of course,
the accepted rule that a complaint should not be dismissed for
failure to state a claim 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. Here, the complaint alleged, in part,
that petitioners were discharged wrongfully by the Railroad and
that the Union, acting according to plan, refused to protect their
jobs as it did those of white employees or to help them with their
grievances all because they were Negroes. If these allegations are
proven there has been a manifest breach of the Union’s statutory
duty to represent fairly and without hostile discrimination all of the
employees in the bargaining unit.36
As to the “factual specificity” branch of its pleading argument,
the union asserted:
The factual allegations of the Complaint are completely vague as to
what provisions of, or in what manner, the bargaining agreement
was violated by the Railroad when it abolished the particular jobs in
question . . . . There are no factual allegations that it ever
happened before, or that it happened pursuant to an agreement
between the Railroad and Respondents . . . [W]hat specific conduct by
the [Union] discriminated against [plaintiffs] in favor of white
34. Conley, 355 U.S. at 42 (citations omitted).
35. Brief for Respondents Pat J. Gibson, et al. at 32, Conley v. Gibson, 355 U.S. 41
(1957) (No. 7), 1957 WL 87662 [hereinafter Resp’ts Br.].
36. Conley, 355 U.S. at 45–46 (citations omitted).
2010] DO TWOMBLY AND IQBAL MATTER EMPIRICALLY? 561
employees and thus constituted a breach of its statutory duty of fair
In other words, the Union argued that the complaint’s allegations
of discrimination were conclusory. Justice Black could have
responded in kind to the Union’s lack-of-specificity argument by
either pointing out that the complaint did make such allegations,38
that the specificity the Union wanted was irrelevant under the
substantive law.39 Instead, the Court retorted with the general
philosophy of notice pleading:
The decisive answer to this is that the Federal Rules of Civil
Procedure do not require a claimant to set out in detail the facts
upon which he bases his claim. To the contrary, all the Rules
require is “a short and plain statement of the claim” that will give
the defendant fair notice of what the plaintiff’s claim is and the
grounds upon which it rests.40
This is the part of Conley that remains good law under Twombly—
and maybe Iqbal.
2. The 12(b)(6) spiel
For decades, courts have started their opinions with boilerplate
language about the governing standards of a 12(b)(6) motion, the
gist of which is learnedly described by Wright & Miller,41 but which I
have irreverently come to call the “12(b)(6) spiel.” The “no set of
facts” versus “plausibility” standard is only a portion of the spiel.
Of course, courts frequently begin their recitations by quoting Rule
8(a)(2). After Conley, the boilerplate language almost always
included that case’s two best-known quotes: the “no set of facts”
37. Resp’ts Br., supra note 35, at 26–27, 31.
38. For example, the complaint alleged that the defendant violated the security
provisions of the bargaining agreement. Conley, 355 U.S. at 42–43. The complaint
also alleged that the railroad and the Union had entered into a “Union Shop
Contract” which also contained security provisions that the defendant violated.
Pet’r’s Br., supra note 21, at 4.
39. Under the substantive law, the Union’s actions could have been
discriminatory even if the Union had not agreed with the railroad to engage in
discrimination and even if the Union had not engaged in this conduct on any other
occasion than the one in question. See 45 U.S.C. §§ 151–88 (2006); see also Steele v.
Louisville & Nashville R. Co., 323 U.S. 192, 202 (1944).
40. Conley, 355 U.S. at 47 (citing FED. R. CIV. P. 8(a)(2)).
41. See 5B CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE &
PROCEDURE § 1357, at 417 (3d ed. 2004) (“[F]or purposes of the motion to dismiss,
(1) the complaint is construed in the light most favorable to the plaintiff,
(2) its allegations are taken as true, and (3) all reasonable inferences that can be
drawn from the pleading are drawn in favor of the pleader.”).