Ashcroft v. Iqbal and the Pleading Standard

Law professors teaching Civil Procedure this fall may have reason to revise their lecture notes covering the pleading standard in federal courts for the first time in a long time.  This pleading standard, as articulated in the Federal Rules of Civil Procedure (FRCP) Rule 8(a), has presented a very low hurdle for plaintiffs since the Supreme Court addressed the issue in Conley v. Gibson in 1957.  That is, perhaps, until Ashcroft v. Iqbal , a Supreme Court detainee case decided this spring that may end up significantly heightening the pleading standard for federal civil courts.

Depending on where you look, you can find members of the legal community making different predictions of where the courts will land on Iqbal.  Some are dismissing the significance of the case, and others are declaring it a major obstacle for plaintiffs and a coup for corporate defense.

The federal courts have begun the task of interpreting Iqbal.  For instance, a 12(b)(6) motion to dismiss based on the Iqbal standard was successful in a lawsuit claiming that a school’s music program violated free exercise and establishment clause by choosing songs that were religious in nature for students to perform.  And, Judge Posner recently wrote an opinion that distinguished the case at hand from Iqbal and suggested that didn’t govern, even though it has been believed to apply to all federal civil cases.

It appears Congress is ready to jump into the fray as well.  Senator Arlen Specter introduced the Notice Pleading Restoration Act of 2009 in late July, which, in its current state, would reinstate the Conley standard.  While at first glance, the proposed legislation does not seem to present a separation of powers problem, it remains to be seen whether or not this bill has legs enough to make it out of committee.

Even if we do not end up with a pleading standard radically different from that established in Conley, we should get used to hearing the name “Iqbal” as part of our common legal vocabulary for a while.  In the first two months after the Iqbal decision was handed down, the case was cited 500 times in federal courts.  It seems a FRCP 12(b)(6) motion to dismiss for “failure to state a claim upon which relief will be granted” citing Iqbal will be on the checklist for the defense counsel of every federal civil case from here on out.

While this appears to be the first post on Marquette Law School’s Faculty Blog discussing the implications of Iqbal and the pleading standard, it is the topic of a healthy discussion in the legal community right now.  My interest in Ashcroft v. Iqbal grew out of my final paper assignment for my Law and Rhetoric course in the first summer session and it has been fun to watch the analysis and law begin to develop over the past few weeks.  I’ve simplified the case and issues for the sake of presenting in the blog format, but welcome any comments or discussion in the forum below or offline by email  if folks are interested.

This Post Has 3 Comments

  1. Richard M. Esenberg

    It’s an excellent topic and well stated, although Iqbal didn’t abandon Conley. That was done in Bell Atlantic v. Twombly in 2007, so Civil Procedure professors ought to have revised their lecture notes two years ago. In fact, I’ve tortured students with Twombly issues on my last two exams. Those of you who I will be seeing in the spring may want to take note.

    What Iqbal does is confirm that the Court in Twombly seems to have meant what it said (whatever that was) about more scrutiny of the allegations of a complaint.

    My Civil Procedure students were regaled (or bored) with the story of my participation in a panel on Twombly in April of 2008. Judge Randa began things by saying that when he read Twombly, his reaction was “what the hell?” I was up next and said that Judge Randa had captured the essence of the matter, Anything said by the other panelists would be an elaboration on that theme.

    I think some people were hoping that Twombly would go away or be limited ti its specific (antitrust) context, but Iqbal is the end of that dream.

    The real problem – for Civ Pro profs and lawyers and judges – is figuring out “what the hell” these cases mean.

  2. Bruce Boyden

    This is one of those fairly boring areas of the law (pleading standards) that has a huge effect on actual litigation strategy as carried out in the trenches. (To mix military metaphors.) The defense bar is helped enormously by Iqbal, even more than Twombly.

    I plan my own post on Iqbal someday soon. In the meantime, here’s Cincinnati’s Adam Steinman with a very interesting and plausible (so to speak) “the sky is not falling” take:

  3. Jay P. Rabideaux

    In response to Professor Esenberg:

    I like that… “what the hell?” I’m glad I’m not the only one with that sentiment. I should have used that phrase for my post title.

    You correctly observe my omission of Bell Atlantic v. Twombly from the post. I left it out for the purposes of keeping the post short and manageable in a quick read. However, Bell Atlantic really does get this pleading standard conversation started and deserves to be part of any serious discussion on the topic.

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