In parts I and II of his paper, Professor Spencer introduces the concept of “notice pleading” and contrasts it with the fact-pleading regime that existed before the adoption of the Federal Rules of Civil Procedure. The 1938 rules included the well-known provision that a pleader need provide only “a short and plain statement of the claim showing that the pleader is entitled to relief.” In a line of decisions extending to 2002, the United States Supreme Court underscored the liberality of the federal courts’ ordinary pleading standard, stating notably in Conley v. Gibson in 1957 that a complaint should not be dismissed unless “no set of facts” could establish the pleader’s entitlement to relief.

In part III, Professor Spencer analyzes the Supreme Court’s more recent decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, in which it abrogated the Conley “no set of facts” standard, added a requirement of “plausibility,” and called for courts to employ a “twopronged approach” to their review of pleadings, in which allegations that are merely conclusory are set aside and the remaining allegations are examined for sufficient plausibility. The effect of these two decisions, Professor Spencer observes, appears to be to set aside the federal courts’ 70-year-old notice pleading regime in favor of requiring parties to plead specific facts if they hope to avoid dismissal.

Part IV discusses the reactions to Twombly and Iqbal of the lower federal courts. Although a few decisions appear to resist the new regime, the Courts of Appeals generally have accepted that the Supreme Court now requires factual details in complaints. Civil rights, antitrust, RICO, and securities fraud cases are among the substantive areas hit hardest by the new approach. Professor Spencer asks whether federal district courts may take Twombly and Iqbal as justification to require a higher level of pleading even if parties can’t reach a higher level of specificity prior to discovery―and may even be tempted simply to dismiss complaints that they believe are weak or lack merit.

In part V, Professor Spencer examines the impact of Twombly and Iqbal within state jurisdictions, which fall roughly into two groups―the majority of states whose civil procedure systems “replicate” the federal rules, and those that vary from the Federal Rules in some significant way. In the three years since Twombly was decided, courts in 14 of the “replica” states have had occasion to reexamine their pleading standards. Seven replica state courts have declined to follow the federal move in the direction of plausibility pleading, but only two so indicated through their states’ highest courts. The courts in the other seven replica states that have addressed these cases appear to have embraced the fact-pleading requirement, including the highest courts in five of those states. In the non-replica states, there has been little response from the few that use notice pleading, and there can be little expectation that the remaining states whose courts already use fact pleading will be significantly impacted by the new federal regime. The resulting box score is 24 states for tighter pleading and 27 apparently maintaining notice pleading.

The normative question of how states should respond to Twombly and Iqbal remains, and Professor Spencer outlines a number of considerations that he suggests state policymakers should address, including matters of policy, practicality, and doctrine.

Document Type

Conference Proceeding

Publication Information

18th Annual Forum for State Appellate Court Judges, Sponsored by the Pound Institute for Civil Justice.