Congressman John Dingell, D-Dearborn, once said at a congressional hearing, “I’ll let you write the substance … and you let me write the procedure, and I’ll screw you every time.”
Recognizing that procedure does indeed matter, PublicSquare.net asked Ms. Caroline Mitchell and me to debate the merits of the Supreme Court’s recent cases that change the standard for drafting a satisfactory complaint in federal court (i.e., the document that starts a lawsuit by laying out the basis for the plaintiff’s claim against the defendant). I would like to thank the folks at PublicSquare.net for hosting this discussion and Ms. Mitchell for participating. In this first post, I begin with an introduction to the issue. In my next post, I will offer my critique of the new regime.
From the middle of the nineteenth century until the end of the 1930s, plaintiffs in drafting complaints were required to provide a great amount of factual detail in order to satisfy the then-prevailing pleading standards. This fact-intensive scheme led to two main difficulties: (1) Courts and parties spent an inordinate amount of time, money and energy determining how much detail was required in the complaint and distinguishing “facts” from “legal” conclusions. Moreover, none of this effort was expended on the underlying merits of the claim, but rather on satisfying a procedural hurdle. (2) As Congress and state legislatures passed more complicated legislation, creating claims to address more nuanced injuries than common-law battery (or the like), plaintiffs found themselves unable to acquire the facts needed to plead a fact-intensive complaint successfully without the coercive power of a court to compel the opposing party to release the relevant information.
In 1937, the federal rules of procedure were radically reworked, creating the still-governing Federal Rules of Civil Procedure. Among other things, the drafters of the Federal Rules sought to address the difficulties outlined above. They drafted two rules that directly address this issue. First, they rejected fact-intensive pleading for a “notice” pleading scheme under Rule 8(a)(2).1   Instead of requiring plaintiffs to provide a detailed factual account of the injury of which they are complaining, the Federal Rules only require plaintiffs to put the defendant on notice of the nature of the complaint being brought. Second, a failure to satisfy this low standard, may be addressed by a pre-answer motion (the answer is the document the defendant files to respond to the complaint) under Federal Rule 12(b)(6). Factual detail, under this scheme, is to be developed in a later stage of the litigation process called discovery.
This mere notice standard for complaints was affirmed by the Supreme Court in Conley v. Gibson, 355 U.S. 41, 46-47 (1957). Here the Court held that “complaint should not be dismissed . . . [for failure to comport with Rule 8(a)(2)] 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.” Thus, the Court ruled that a complaint was merely a vehicle to put the defendant upon notice of a suit—not an opportunity to adjudge the veracity of plaintiff’s underlying factual assertions. Put more concretely, under this standard, courts (only during this early, pre-discovery period) were to assume facts stated in a complaint are true and allow a plaintiff to draw any possible inferences from these allegations. This approach to pleading had come to govern, not only in the federal system, but in 35 state systems as well. Moreover, the Court reiterated this Conley holding upon numerous occasions until two years ago.2
The Court’s 2007 Bell Atlantic Corp. v. Twombly changed these, by then, well-settled rules for pleading. 127 S. Ct. 1955 (2007). The plaintiffs in Twombly brought federal anti-trust claims against several local providers of telephone and Internet service. The plaintiffs’ theory of the case, as required under the Sherman Act, was that the telephone companies had conspired with each other not to compete, thereby creating monopoly pricing power in the each company’s local market. The relevant part of the plaintiffs’ complaint merely alleged that the companies pricing packages tended to parallel each others. From this the plaintiffs’ sought the legal conclusion that the defendants had conspired to set prices by way of inference. Justice Souter, writing for the Court, rejected this complaint as implausible. The Court hewed to the traditional standard of assuming the facts alleged as true. Here, the fact of parallel pricing conduct. But the Court rejected the Conley standard of allowing a plaintiff the benefit of any conceivable inference. Rather, the Court held that inferences must be plausible. Here, the Court found the inference from parallel conduct to conspiracy implausible. Thus, the Court required the plaintiffs to plead the conspiracy with specific facts.
Building upon Twombly, last spring the Court issued Ashcroft v. Iqbal.129 S.Ct. 1937 (2009).Here federal authorities arrested Mr. Iqbal, an Arab Muslim, after the 9/11 attacks. After his release and deportation to Pakistan, Mr. Iqbal sued senior Department of Justice officials contending that he was arrested solely on the basis of his race and religion. Such allegations, if true, would constitute significant constitutional violations and would justify an award of monetary damages for Mr. Iqbal. The Court, speaking through Justice Kennedy, agreed that Mr. Iqbal’s “allegations are consistent with … [his designation as a person] ‘of high interest’ because of [his] race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.” That is, the Court relied upon the Twombly plausibility holding to rule that it did not believe Mr. Iqbal’s preliminary allegations. This holding drew a vigorous dissent from Justice Souter, the author of Twombly. Under Iqbal, Justice Souter complained, not only is plaintiff not entitled to all conceivable inferences from his allegations (per Twombly), but the courts need not assume his factual averments to be true. A step too far in his view.
This is where we stand then. Under the pre-2007 regime, plaintiffs needed only to put a defendant upon notice of the claim against it. Plaintiffs were entitled to an assumption (during pre-discovery motions) that their allegations were true and inferences from these allegations were true. Under Iqbal, neither of these assumptions continue to govern pre-discovery Rule 12(b)(6) motions.

1Fed. R. Civ. P. 8(a)(a) (“A pleading that states a claim for relief must contain . . . . a short and plain statement of the claim showing that the pleader is entitled to relief.”).

2 See, e.g, Erickson v. Pardus, 551 U.S. 89 (2007); Swierkiewicz v. Sorema N. A., 534 U.S. 506 (2002);  Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163 (1993).