Civil Procedure & Federal Courts Blog

Facebook's Newest Friends: Twombly & Iqbal

Yesterday’s decision dismissing the FTC’s complaint against Facebook is a high-profile example of the Twombly/Iqbal pleading framework in action. From District Judge Boasberg’s introduction:

Although the Court does not agree with all of Facebook’s contentions here, it ultimately concurs that the agency’s Complaint is legally insufficient and must therefore be dismissed. The FTC has failed to plead enough facts to plausibly establish a necessary element of all of its Section 2 claims — namely, that Facebook has monopoly power in the market for Personal Social Networking (PSN) Services. The Complaint contains nothing on that score save the naked allegation that the company has had and still has a “dominant share of th[at] market (in excess of 60%).” Redacted Compl., ¶ 64

Judge Boasberg did, however, give the FTC 30 days to file an amended complaint.

 

 

 

Coleman on Gadson on Stolen Plausibility

Today on the Courts Law section of JOTWELL is Brooke Coleman’s essay, Something Borrowed. Brooke reviews Marcus Gadson’s article, Stolen Plausibility, which is forthcoming in the Georgetown Law Journal.

 

 

 

Virtual Event: Unpacking Iqbal (April 15, 2021)

Below are the details for Unpacking Iqbal, which will be co-hosted by the Chicago-Kent MLSA with the MLSA at UIUC and Georgetown:

When: Apr 15 (Thu), 6:00 PM - 7:15 PM CDT

Where: Zoom, register here: https://lu.ma/qgugl5o3   

Ashcroft v. Iqbal is known as the seminal case that every 1L agonizes over because it transformed the pleading standard starting in 2008. But this case goes beyond pleading standards. It is intertwined with questions surrounding qualified immunity, Xenophobia, Islamophobia and carries a holding that eerily resembles a rationale for blatant racism and discrimination. We have invited panel speakers Professor Alexander Reinert (who argued the case in front of the Supreme Court) and Professor Shirin Sinnar to discuss the impact that Iqbal has had on the entire American litigation system for ethnic and racial minorities.

 

 

H/T: Greg Reilly

 

 

 

 

 

Of Pleading Standards and Erie Guesses: Ninth Circuit Decision in Judd v. Weinstein

The Ninth Circuit recently issued its decision in Judd v. Weinstein. Judge Murguia’s opinion reverses the district court’s dismissal of Ashley Judd’s state-law sexual harassment claim against producer Harvey Weinstein.

In doing so, the court confronts an issue of “first impression under California law” and proceeds to “predict[] how the California Supreme Court would resolve it.” The court also finds that Judd’s complaint passes muster under Iqbal, despite Weinstein’s argument that she failed to adequately allege a professional relationship at the time of the alleged harassment:

Judd sufficiently alleged a “business, service, or professional relationship” at the time of the alleged harassment: Judd alleged that she established a professional relationship with Weinstein after working on the 1995 Miramax film Smoke, and went to the Peninsula Hotel in hopes of building upon that existing relationship to discuss future professional endeavors. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”). Moreover, Judd alleged that “at the time of the harassment, [she] was discussing potential roles in films produced or distributed by Weinstein or Miramax.” This is more than enough to allege a professional relationship at the time of the alleged harassment.

(H/T: Aaron Caplan)

 

 

 

SCOTUS Decision on DACA

Yesterday the Supreme Court issued its decision in Department of Homeland Security v. Regents of University of California. As folks are surely aware by now, the Court voted 5-4 to vacate the Trump administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program as “arbitrary and capricious” under the Administrative Procedure Act (APA).

The case raised some interesting issues relating to civil procedure and federal courts that are worth flagging. The first is pleading. On the APA issue, Chief Justice Roberts authors the majority opinion, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan. But the plaintiffs had also argued that the rescission of DACA violated the equal protection component of the Fifth Amendment because the rescission was motivated by discriminatory animus. In Part IV—which Justice Sotomayor did not join—Chief Justice Roberts finds that the plaintiffs’ allegations of animus were “insufficient.” He writes:

To plead animus, a plaintiff must raise a plausible inference that an “invidious discriminatory purpose was a motivating factor” in the relevant decision. Arlington Heights v. Metropolitan Housing Development Corp., 429 U. S. 252, 266 (1977). Possible evidence includes disparate impact on a particular group, “[d]epartures from the normal procedural sequence,” and “contemporary statements by members of the decisionmaking body.” Id., at 266–268. Tracking these factors, respondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump. Brief for New York 54–55.

None of these points, either singly or in concert, establishes a plausible equal protection claim.

Justice Sotomayor does not join this part of Chief Justice Roberts’ opinion, and she writes a partial dissent on the equal protection issues. From her opinion:

Respondents’ equal protection challenges come to us in a preliminary posture. All that respondents needed to do at this stage of the litigation was state sufficient facts that would “allo[w a] court to draw the reasonable inference that [a] defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009). The three courts to evaluate respondents’ pleadings below held that they cleared this modest threshold. 908 F. 3d 476, 518–520 (CA9 2018) (affirming the District Court’s denial of the Government’s motion to dismiss); see also Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 274 (EDNY 2018).

I too would permit respondents’ claims to proceed on remand. The complaints each set forth particularized facts that plausibly allege discriminatory animus.

The Supreme Court’s handling of the equal protection claims raises another recurring chestnut for federal courts enthusiasts: the Marks rule and nonmajority opinions. The dissenting justices on the APA issue—Justices Thomas, Alito, Gorsuch, and Kavanaugh—write that they “concur in the judgment insofar as the Court rejects [the] equal protection claim.” It’s not clear, however, whether and how those votes can be added to the four-justice plurality on the plaintiffs’ pleading of their equal protection claims to generate a binding “majority” opinion on that issue. 

Finally, it’s worth noting that the Court avoided the recurring-yet-still-unaddressed question of nationwide injunctions (see, e.g., here). Footnote 7 of Chief Justice Roberts’ opinion explains that, because the Supreme Court affirmed the D.C. federal court’s order vacating the Trump administration’s rescission of DACA, it was “unnecessary to examine the propriety of the nationwide scope of the injunctions” that had been issued by other federal courts.

 

 

Provenzano on Speech Act Theory and Pleading

Susan Provenzano has posted on SSRN a draft of her article, Can Speech Act Theory Save Notice Pleading?, which is forthcoming in the Indiana Law Journal. Here’s the abstract:

Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew those lines. It treats as legal conclusions an entire subset of factual allegations and does so whenever, in the court’s view, those facts are presented too generally or too rhetorically. To date, the contours of “conclusory” have not been pinned down by legal-theoretic approaches, while lower court reactions range from conflicting to confused to avoidant. It is clearer than ever that Iqbal left an analytical void in the wake of its novel pleading inquiry—a void that must be filled in a stable way while recognizing the FRCP’s normative commitments.

That way is through speech act theory. Speech act theory is a philosophy of language that employs a descriptive methodology for understanding what speakers mean with their words. A speech act- theoretic approach targets Iqbal’s central flaws—failing to treat pleading as an act of communication, and ignoring how the pleader intends her allegations to function in the pleading conversation. Indeed, Iqbal makes the judge’s omniscient view of meaning the decisive factor. Furthermore, Iqbal conflates two types of speech acts whose difference was vital pre-Iqbal: allegations meant to report, which merit the truth assumption, and allegations meant to accuse, which do not. Speech act theory shores up pre-Iqbal instability and offers a consistent analytical approach for granting allegations the assumption of truth based on communicative meaning. Using speech act theory to set the parameters of “conclusory” also opens the doors of discovery to complaints that do their job as the FRCP intended: providing functional fair notice of the nature of the plaintiff’s claims and the grounds on which they rest.

 

Steinman on Notice Pleading in Exile

I just posted to SSRN my article, Notice Pleading in Exile, 41 Cardozo L. Rev. 1057 (2020). Here’s the abstract:

According to the conventional wisdom, the Supreme Court’s 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article—part of a symposium commemorating the Iqbal decision’s tenth anniversary—highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.

Shout out to the Cardozo Law School, the Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy for hosting such an excellent symposium last spring. I’ll post links to all of the symposium pieces once they’re available.

 

Soucek & Lamons on using "court-counting" to decide whether Twombly & Iqbal apply to defendants

Brian Soucek & Remington Lamons have published Heightened Pleading Standards for Defendants: A Case Study of Court-Counting Precedent, 70 Ala. L. Rev. 875 (2019). Here’s the abstract:

In over a thousand cases, federal district courts have considered whether the heightened pleading standards imposed on plaintiffs in Twombly and Iqbal also apply to the affirmative defenses raised in defendant’s answers. Courts are split, and alongside the usual textual and policy arguments they offer, a less expected consideration is often raised: the fact that a majority of other courts have decided the same way. Court-counting precedent, as we call this kind of reasoning, requires justification, not least because—as we find here—judges get their count wrong a full third of the time.

This Article—based on a study of 1,141 federal opinions decided in the ten years after Twombly—does two things. It provides the first comprehensive answer to an important doctrinal question: what pleading standard do federal courts apply to defendants—and how has that standard varied over time and across the country? Second, the Article reveals that judges deciding this issue have engaged in court-counting a surprising 27% of the time. Given the previously unacknowledged importance of court-counting precedent in the lower federal courts, this Article asks whether and when it is warranted.

 

 

 

Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance (Symposium at Cardozo Law School, March 15, 2019)

On Friday, March 15, 2019, the Benjamin N. Cardozo School of Law, Cardozo Law Review, and The Floersheimer Center for Constitutional Democracy are hosting a symposium entitled “Ten Years of Iqbal: Perspectives on Policy, Procedure, and Substance.”

You can find all the details – and register for the symposium (it’s free) – here. Come join us!

From the announcement:

An esteemed group of experts, including the lawyers who argued both sides of the Iqbal case, and leading legal scholars, will examine the decision’s influence on both procedural and substantive law. The conference will examine pleading doctrine, pleading practice, approaches to federal rulemaking and substantive areas of law including national security and civil rights.

The symposium keynote will be given by Arthur R. Miller, Professor at NYU Law, former Bruce Bromley Professor of Law at Harvard Law, and the nation's leading scholar in the field of civil procedure.

Confirmed panelists include:

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SDNY rules on motions to dismiss cases challenging addition of a citizenship status question to 2020 census

Today U.S. District Judge Jesse Furman (S.D.N.Y.) issued an opinion and order granting in part and denying in part the defendants’ motion to dismiss two related cases, New York v. United States Department of Commerce and New York Immigration Coalition v. United States Department of Commerce. The plaintiffs in these cases are challenging—on a number of grounds—Commerce Secretary Wilbur Ross’s decision to reinstate a question on citizenship status for the 2020 census. The upshot, as the court summarizes is this:

Plaintiffs’ claims under the Enumeration Clause — which turn on Secretary Ross’s power rather than his purposes — must be and are dismissed. By contrast, their claims under the APA (which Defendants seek to dismiss solely on jurisdictional and justiciability grounds) and the Due Process Clause — which turn at least in part on Secretary Ross’s purposes and not merely on his power — may proceed.

In reaching this conclusion, the opinion covers a number of interesting issues, including Article III standing, the political question doctrine, and whether the plaintiffs plausibly alleged discriminatory animus for purposes of their equal protection claim under the Due Process Clause.

Download SDNY Opinion and Order 07-26-2018

 

 

 

Yesterday’s Eleventh Circuit Decision in Lewis v. Governor of Alabama

In Lewis v. Governor of Alabama, the Eleventh Circuit reversed the district court’s dismissal of an equal protection challenge to a 2016 Alabama statute that nullified a Birmingham city ordinance raising the minimum wage to $10.10. Here’s the introductory paragraph:

For a single day in February 2016, Marnika Lewis and Antoin Adams secured a pay raise. The Mayor of Birmingham, Alabama, William Bell, had just affixed his signature to Birmingham Ordinance No. 16-28, which guaranteed Lewis, Adams, and all other wage earners in the city $10.10 per hour. But the following afternoon, Alabama Governor Robert Bentley signed the Minimum Wage and Right-to-Work Act (The Minimum Wage Act or the Act) into law. The Minimum Wage Act nullified Birmingham Ordinance No. 16-28, preempted all local labor and employment regulation, and mandated a uniform minimum wage throughout Alabama—which, then and now, sits at $7.25 per hour. At the heart of this appeal is whether Lewis and Adams have stated a plausible claim that the Minimum Wage Act had the purpose and effect of discriminating against Birmingham’s black citizens, in violation of the Equal Protection Clause of the Fourteenth Amendment. Because they have, we reverse the dismissal of that claim. We affirm the dismissal of all other claims.

The opinion addresses standing, sovereign immunity, and pleading standards. As to pleading, the court concludes:

Here, a sensitive but thorough examination of the plaintiffs’ detailed allegations leads us to conclude that they have plausibly alleged a discriminatory motivation behind the Minimum Wage Act, despite the law’s neutrality and rationale. This is all that is required for their claim to survive a motion to dismiss.

 

 

 

Interesting bits on pleading standards during SCOTUS oral argument in Lozman v. Riviera Beach

In Lozman v. Riviera Beach, the Supreme Court granted certiorari on the following question: “Does the existence of probable cause defeat a First Amendment retaliatory-arrest claim as a matter of law?” There were several moments during yesterday’s oral argument where the Justices and petitioner’s counsel Pam Karlan addressed Twombly, Iqbal, and pleading standards.

The most significant exchanges are on pp.9-16 of the transcript. Here’s one example featuring Justice Alito:

JUSTICE ALITO: Well, let's take this particular case then. Suppose -- obviously, there is no love lost between your client and the City of Riviera Beach, but, so suppose he comes back to another meeting and he is disruptive and he's arrested. Will he not be able to file a suit for retaliation and get to the jury on that?

KARLAN: It might be very difficult for him to get to a jury if the level of disruption is such that, under the way this Court has treated plausible pleading in Twombly and Iqbal, it's not plausible to believe that it was the animus that caused the arrest.

JUSTICE ALITO: Do you really think a suit like that could be dismissed under Twombly?

Chief Justice Roberts and Justice Kennedy pursued similar lines of questioning.

(H/T: Saul Zipkin)

 

 

 

Thornburg on Hoffman on Pleading

Now on the Courts Law section of JOTWELL is Beth Thornburg’s essay, A Well-Pleaded Argument. Beth reviews Lonny Hoffman’s recent piece, Plausible Theory, Implausible Conclusions, 83 U. Chicago L. Rev. Online 143 (2016).

 

 

 

SCOTUS Oral Argument in Abbasi

Today the U.S. Supreme Court heard oral argument in three consolidated cases raising issues relating to Bivens, qualified immunity, and pleading standards.

The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). You can find more details on the cases here.

Here’s the transcript from today’s argument.

 

 

 

 

Hoffman on Hubbard on Plausibility Pleading

Lonny Hoffman has an essay up on the University of Chicago Law Review Online, Plausible Theory, Implausible Conclusions. Lonny responds to William Hubbard’s recent article, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).

 

 

 

Third Circuit Decision on Standing, Pleading, and NSA Surveillance

Last week, the U.S. Court of Appeals for the Third Circuit issued its decision in Schuchardt v. President of the United States (3d Cir. No. 15-3491). The plaintiff filed a lawsuit challenging NSA surveillance activities, but the district court dismissed for lack of standing. The Third Circuit reversed, with an opinion that begins:

This appeal involves a constitutional challenge to an electronic surveillance program operated by the National Security Agency (NSA) under the authority of Section 702 of the Foreign Intelligence Surveillance Act (FISA). Elliott Schuchardt appeals an order of the United States District Court for the Western District of Pennsylvania dismissing his civil action for lack of jurisdiction. The District Court held that Schuchardt lacked standing to sue because he failed to plead facts from which one might reasonably infer that his own communications had been seized by the federal government. Because we hold that, at least as a facial matter, Schuchardt’s second amended complaint plausibly stated an injury in fact personal to him, we will vacate the District Court’s order and remand.

The court goes on to discuss the Supreme Court’s 2013 decision in Clapper v. Amnesty International USA, as well as the general pleading standard set forth in Twombly and Iqbal.

Download Schuchardt (3d Cir)

It’s worth noting that a case similar to Schuchardt is currently pending in the Fourth Circuit. Wikimedia Foundation  v. NSA (4th Cir. No. 15-2560) is scheduled for oral argument in December. If readers are interested, below is a link to an amicus brief in the Wikimedia case that I filed on behalf of various civil procedure and federal courts professors:

Download Wikimedia v NSA (4th Cir) Law Professor Amicus Brief

 

 

 

 

 

 

SCOTUS grants cert to review 9/11 lawsuits; questions presented involve Bivens, qualified immunity & pleading standards

Today the Supreme Court granted certiorari in three cases, which it then consolidated. The cases are Ziglar v. Abbasi (No. 15-1358), Ashcroft v. Abbasi (No. 15-1359), and Hasty v. Abbasi (No. 15-1363). The petitioners are federal officials challenging the Second Circuit’s decision (Turkmen v. Hasty, 789 F.3d 218 (2015)) refusing to dismiss certain claims by plaintiffs alleging they were subjected to discriminatory and punitive treatment during their confinement following the 9/11 attacks. One aspect of these cases that could prove quite important is that Justices Sotomayor and Kagan “took no part in the consideration or decision of these petitions” and have apparently recused themselves.

The three cases present slightly different but overlapping questions relating to Bivens, qualified immunity, and pleading standards. Not surprisingly, there are echoes of the Court’s 2009 decision in Ashcroft v. Iqbal, which has had a significant impact on pleading standards generally (Iqbal is already the #4 most-cited Supreme Court decision in history). 

[Update: During the cert-stage briefing and in the initial order granting certiorari, these three cases were captioned with Ibrahim Turkmen as the lead respondent (Ziglar v. Turkmen, Ashcroft v. Turkmen, and Hasty v. Turkmen). The docket and merits briefs now list Ahmer Iqbal Abbasi as the lead respondent.]  

You can find all the cert-stage briefing—and follow the merits briefs as they come in—by checking out the SCOTUSblog casefiles (Ziglar; Ashcroft; Hasty). Here are the questions presented in full...

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The End of an Era? Federal Civil Procedure After the 2015 Amendments

My article on the 2015 amendments to the FRCPs is now in print. It’s The End of an Era? Federal Civil Procedure After the 2015 Amendments, 66 Emory L.J. 1 (2016). Here’s the abstract:

The recent amendments to the Federal Rules of Civil Procedure were the most controversial in decades. The biggest criticisms concerned pleading standards and access to discovery. Many feared that the amendments would undermine the simplified, merits-driven approach that the original drafters of the Federal Rules envisioned and would weaken access to justice and the enforcement of substantive rights and obligations.

This Article argues that the amendments that came into effect on December 1, 2015, do not mandate a more restrictive approach to pleading or discovery. Although there was legitimate cause for alarm given the advisory committee’s earlier proposals and supporting documents, the final amendments — in light of their text, structure, and accompanying advisory committee notes — should be interpreted to preserve notice pleading and a robust discovery process. The more significant lesson of the 2015 amendments, therefore, may be to confirm the view that the amendment mechanism of the Rules Enabling Act is unlikely to generate consequential changes to the Federal Rules (for better or for worse). The process leading to the 2015 amendments was teed up almost perfectly for opponents of meaningful access and enforcement to make real, detrimental changes to federal pleading and discovery standards. Yet the final amendments ultimately did not do so.

Accordingly, the key battleground following the 2015 amendments will be in the federal courts themselves, as judges are called upon to interpret and apply the rules in particular cases. No doubt aware of this fact, Chief Justice Roberts has taken various steps to spin the recent amendments as making more significant changes than they actually do. These post-amendment moves are not legally authoritative and do not modify the law of civil procedure. But the Chief Justice and his allies may win the day if they are able to dominate the gestalt surrounding the 2015 amendments in a way that persuades lower court judges to take a more restrictive approach. Properly interpreted, the 2015 amendments do not support the Chief’s narrative. Recognizing this will be crucial for ensuring access and enforcement going forward.

 

 

 

 

Ever Wonder Which SCOTUS Cases Have Been Cited the Most?

We’re just days away from a new U.S. Supreme Court Term. With some notable exceptions, most folks pay attention to Supreme Court decisions not because of who wins or loses those particular cases, but because of what those decisions mean for the law going forward.

So which Supreme Court decisions have been cited the most? The top-ranked cases, it turns out, are right in your 1L civil procedure syllabus. My article that came out this spring (The Rise and Fall of Plausibility Pleading?) includes some data on this from the Shepard’s citation service. In terms of citations by federal courts, the Top-5 are all civil procedure cases: the 1986 summary judgment trilogy (#1, #2, #5) plus Twombly (#3) and Iqbal (#4). Here’s the Top-20:

Rank	Case	Federal Court Citing References
1	Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)	195,159
2	Celotex Corp. v. Catrett, 477 U.S. 317 (1986)	183,365
3	Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)	127,521
4	Ashcroft v. Iqbal, 556 U.S. 662 (2009)	104,712
5	Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986)	94,229
6	Strickland v. Washington, 466 U.S. 668 (1984)	70,312
7	Thomas v. Arn, 474 U.S. 140 (1985)	68,944
8	Conley v. Gibson, 355 U.S. 41 (1957)	60,389
9	Slack v. McDaniel, 529 U.S. 473 (2000)	51,901
10	Haines v. Kerner, 404 U.S. 519 (1972)	51,029
11	McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)	44,833
12	Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978)	44,577
13	Neitzke v. Williams, 490 U.S. 319 (1989)	42,084
14	Richardson v. Perales, 402 U.S. 389 (1971)	41,975
15	Estelle v. Gamble, 429 U.S. 97 (1976)	41,044
16	Williams v. Taylor, 529 U.S. 362 (2000)	40,156
17	Farmer v. Brennan, 511 U.S. 825 (1994)	37,406
18	Miller-El v. Cockrell, 537 U.S. 322 (2003)	35,293
19	Erickson v. Pardus, 551 U.S. 89 (2007)	28,298
20	Harlow v. Fitzgerald, 457 U.S. 800 (1982)	26,999

You can find the full Top-100 in Appendix A of the article (p.59-62 of the pdf file).

 

 

 

 

Colorado Supreme Court Embraces Twombly/Iqbal

In a 4-3 decision, the Colorado Supreme Court has adopted for purposes of Colorado state procedure the approach to pleading that the U.S. Supreme Court employed in Twombly and Iqbal. From the majority opinion in Warne v. Hall:

¶2 Because our case law interpreting the Colorado Rules of Civil Procedure in general, and C.R.C.P. 8 and 12(b)(5) in particular, reflects first and foremost a preference to maintain uniformity in the interpretation of the federal and state rules of civil procedure and a willingness to be guided by the Supreme Court’s interpretation of corresponding federal rules whenever possible, rather than an intent to adhere to a particular federal interpretation prevalent at some fixed point in the past, the court of appeals too narrowly understood our existing precedent. Because the plaintiff’s complaint, when evaluated in light of the more recent and nuanced analysis of Twombly and Iqbal, fails to state a plausible claim for relief, the judgment of the court of appeals finding the complaint to be sufficient is reversed, and the matter is remanded with instruction to permit further proceedings consistent with this opinion.

From the dissent:

¶31 Today, the majority jettisons a rule that has stood the test of time for over fifty years, based largely on an asserted preference for maintaining uniformity with federal court interpretations of analogous federal rules of procedure. In reaching this result, the majority misperceives the existing state of the law in Colorado and grafts onto C.R.C.P. 8 a “plausibility” requirement that the rule does not contain and that other courts have correctly recognized results in a loss of clarity, stability, and predictability. Even more concerning, the majority’s preferred standard allows a single district judge, at the incipient stages of a case, to weigh what the judge speculates the plaintiff will plausibly be able to prove, based on the individual judge’s subjective experience and common sense, and then to decide whether the plaintiff’s action is viable.

¶32 I cannot subscribe to such a standard, which I believe will deny access to justice for innumerable plaintiffs with legitimate complaints. Indeed, the majority’s application of its newly adopted standard in this case demonstrates the overreaching nature and ultimate unfairness of that standard.

Download Warne v Hall (Colo)