Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(B)(6) Motions

Posted by D. Daniel Sokol

In an interesting student note, Kendall Hannon of the Notre Dame Law School undertakes some empirical work in  Much Ado About Twombly? A Study on the Impact of Bell Atlantic Corp. v. Twombly on 12(B)(6) Motions.

Bell Atlantic Corp. v. Twombly has resulted in discussion and debate both in academic writings and in the courts. There exists a broad range of opinions as to what exactly this decision means for notice pleading and motions to dismiss in federal courts. This Note seeks to contribute to this ongoing debate by injecting empirical data.

This empirical study is built around reported federal district court cases. Every district court case citing Twombly in the context of a 12(b)(6) motion to dismiss was read and the disposition of the motion recorded. The rates of dismissal were then compared to numerous control groups- cases that cited Conley v. Gibson in the context of a 12(b)(6) motion to dismiss.

The conclusions suggest that Bell Atlantic may not be having a major impact on most areas of substantive law. However, it appears that Bell Atlantic is having a disproportionate impact on civil rights cases. These cases appear to be dismissed at a statistically higher rate under Bell Atlantic than they were under Conley. This Note proceeds in four parts. Part I provides context for the study by examining the important Supreme Court precedents both before and after Bell Atlantic as well as the response to Bell Atlantic in the legal literature. Part II discusses the methodology of the empirical study, while Part III presents the findings of the study in a variety of ways. Finally, Part IV seeks to advance various hypotheses that could each serve to explain the findings encountered in the study.