Monday, July 11, 2011

Thoughts on the Federal Judiciary Committee’s study of 12(b)(6) motions after Iqbal

            As most of you know, the FJC released its study comparing 12(b)(6) motions in 2006 and 2010 in March 2011.  Overall, the study takes the view that the empirical effect of Iqbal has been modest.  As I mentioned in a previous post, some are emphasizing the finding that the FJC found no increase in the rate of grants of motions without leave to amend

            I have an updated quantitative study coming out in the University of Richmond Law Review in the fall.  My study concludes that Iqbal has had a significant effect not only on the rate of granting 12(b)(6) motions with leave to amend (a finding shared by the FJC), but also without leave to amend.  Another finding of my updated study is that a case is 1.74 times more likely to be entirely dismissed upon the granting of a 12(b)(6) motion under Iqbal than under Conley.  The FJC reached a different result on a similar question.     

            Richmond accepted this article before the FJC results came out, and I am reworking it over the summer to incorporate a review of the FJC results and a comparison with my own.  The draft of the Richmond article on my SSRN page does not contain these revisions yet.  I welcome all comments!

            I wanted to limit the length of this post.  Please contact me for a fuller version of these preliminary remarks.             

            1.  Database inclusions and exclusions.  Here are the major differences between the FJC's database and the database for my updated study:

Table 1

FJC Study and Hatamyar Study Database Parameters

Database parameter

FJC

Hatamyar

Time period

Two separate six-month periods (January to June 2006 and January to June 2010)

A five-year continuous period (May 22, 2005 to May 18, 2010)

Number of cases

1,922

1,333

Number of U.S. district courts

23

86

Method of retrieval

CM/ECF codes in 23 district courts; translation of PDF documents to text; electronic search.

Electronic searches of Westlaw DCT database.

Pro se plaintiffs, including prisoner and non-prisoner

Not included

Included

12(c) motions

Not included

Included

12(b)(6) motions directed to counterclaims

Not included

Included

Motions decided under Rule 9(b) (fraud) or the PSLRA

Included

Not included

District court reviews of motions decided by magistrates

Not included

Included

MDL cases

Not included

Included

             

            II.  Results.  Table 2 compares the overall results of the two studies, removing all pro se plaintiffs from the calculations for my database so as to approximate the FJC's.

Table 2

Comparison of FJC and Hatamyar Overall Results, Represented Plaintiffs Only

Denied

Granted at least in part

FJC

Hatamyar

FJC

Hatamyar

2006

2010

2006

2010

2006

2010

2006

2010

34%

25%

34%

27%

66%

75%

66%

73%

(239)

(305)

(51)

(46)

(461)

(916)

(98)

(123)

Notes:  The FJC figures include only orders entered in 23 districts from January through June 2006 and January through June 2010.  The Hatamyar figures include orders entered in 86 districts in all of calendar year 2006 and from January through June 2010.   

            Overall, as shown in Table 2, the two studies are close in their overall percentages, when looking at represented plaintiffs only.  First, even when the plaintiff was represented, both studies found a significant increase, from 2006 to 2010, in the percentage of 12(b)(6) motions granted at least in part – from 66% to 75% in the FJC study, and from 66% to 73% in my study.  Second, both studies found that 12(b)(6) motions were denied in 34% of cases in 2006 in which the plaintiff was represented by counsel. 

            A comparison of these results may shed some light on the debate as to whether cases reported in Westlaw fairly represent the “universe” of cases.  My database included only cases reported in Westlaw, and the FJC’s database included cases gleaned as thoroughly as possible from the courts’ electronic filing records.  Yet both my study and the FJC’s found the same percentage – 34% -- of motions denied in 2006.  I think that these results may tend to disprove the hypothesis advanced by the FJC that published cases are more likely to report the grant of a 12(b)(6) motion to dismiss than unpublished cases.  Further, in 2010, the percentage of motions granted at least in part (in cases with represented plaintiffs) was actually higher in the FJC study (75%) than in my study (73%), which was based solely on cases reported in Westlaw.  This is the opposite of what one would predict if grants of 12(b)(6) motions were more likely to be published than denials.    

            The real divergence in the results of the two studies is seen when considering pro se plaintiffs, which the FJC omitted from its study.  This is shown in Table 3.

Table 3

Comparison of FJC and Hatamyar Results:

Both Represented and Pro Se Plaintiffs Included in Hatamyar Results

Denied

Granted at least in part

FJC

Hatamyar

FJC

Hatamyar

2006

2010

2006

2010

2006

2010

2006

2010

34%

25%

27%

20%

66%

75%

73%

80%

(239)

(305)

(58)

(48)

(461)

(916)

(157)

(189)

Notes:  The FJC figures include only orders entered in 23 districts from January through June 2006 and January through June 2010 and include only cases in which the plaintiff was represented by counsel.  The Hatamyar figures include orders entered in 86 districts in all of calendar year 2006 and from January through June 2010, and include both represented and pro se plaintiffs.  

            Finally, I ran some logistic regressions in an attempt to limit my database so as to more closely approximate that of the FJC.  The FJC reports the rulings as an initially binary choice (deny vs. grant at least in part), so I recoded the rulings in my database to either “denied” or “granted at least in part.”  In addition, I limited the database, as did the FJC, to cases in which the plaintiff was represented by counsel and that were decided by a district court judge. 

            First, I used all the cases in my database from 2005 to 2010, except as otherwise limited above.  The results indicate that even taking out the pro se cases, the odds of a court granting a 12(b)(6) motion, at least in part, as compared to denying the motion, were expected to be 1.79 times greater under Iqbal than under Conley (p = 0.002), all other variables held constant.

            Second, I used only the cases in my database from 2006 (Jan to Dec) and from 2010 (Jan to May 18), and otherwise limited as described above (no pro se, no magistrate judges).  Here, the results indicate that even leaving out the pro se cases, the odds of a court granting a 12(b)(6) motion, at least in part, as compared to denying the motion, were expected to be 1.92 times greater in 2010 than in 2006 (p = 0.013), all other variables held constant. 

 

http://lawprofessors.typepad.com/civpro/2011/07/thoughts-on-the-federal-judiciary-committees-study-of-12b6-motions-after-iqbal.html

Federal Rules of Civil Procedure, Recent Scholarship, Twombly/Iqbal | Permalink

Comments

It would be interesting to have a better feel for what specific factors in the analysis in particular kinds of cases are driving the trends to flesh out the bare statistics. On its face, Iqbal and Twombley only clearly apply in circumstances where the Plaintiff is forced to speculate on insider knowledge that is part of the prima facie case. Do the dismissal trends track this pattern, or is it more widespread? Are many of these rulings sustained on appeal? Do any of these cases involve "bread and butter" contract or tort actions? Are they "exotic" legal theories?

Posted by: ohwilleke | Jul 18, 2011 5:03:07 PM

Prof. Hatamyar,

I've read both your studies and think each is well done, given the challenges that face any study using your case-selection methodology (which isn't intended as a backhanded compliment--you can use only a data source you have, obviously). I also think this blog post is helpful and interesting, insofar as it suggests that the differences in findings across the FJC report, on the one hand, and other studies like yours, on the other, may be due to other selection criteria besides publication status.

That said, I don't understand your claim, above, that "The real divergence in the results of the two studies is seen when considering pro se plaintiffs, which the FJC omitted from its study. This is shown in Table 3."

Assuming I understand them correctly, the tables in this blog post show only that the *level* of the grant rate seems to be importantly associated with the exclusion of pro se plaintiffs. Table 2 shows that when you don't include these plaintiffs' cases, the 2006 and 2010 grant rates are 66% and 73%, indicating an increase of 7 percentage points (I'll leave aside for purposes of this comment what that increase signifies). Table 2 shows that when you do include pro se plaintiffs' cases, the grant rates for 2006 and 2010 instead are 73% and 80%. Again, this is an increase of 7 percentage points. (And, to nitpick, the relative increases is actually a bit *smaller* when you include pro se plaintiffs' cases, since a base of 73% is greater than a base of 66%.)

Posted by: jonah gelbach | Jul 21, 2011 2:28:17 PM

Post a comment