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Ultimately, defendants won dismissals in about 13 percent of the cases filed during the four months preceding Twombly and about 14 percent of the cases filed during the nine months following Iqbal, and the slight upward trend for this number has been steady rather than showing a jump immediately after either decision. It thus seems unlikely that Twombly and Iqbal have in practice substantially heightened federal pleading standards across the board. Iqbal articulates a clear framework for analyzing a motion to dismiss that begins with a threshold inquiry and is followed by a two-step analysis. In some cases, a motion to dismiss will focus on the elements, making this point obvious; but where the motion focuses on the facts alleged and their adequacy, parties should not be so distracted by these disputes that they overlook the importance of advocacy regarding the cause of action. In its petition for certiorari, the government had conceded that Ashcroft and Mueller "would be liable if they had 'actual knowledge' of discrimination by their subordinates and exhibited 'deliberate indifference' to that discrimination." Id. The Court, however, disregarded this concession, deciding that Ashcroft and Mueller would be liable only if they themselves had "adopted and implemented the detention policies at issue not for a neutral, investigative reason but for the purpose of discriminating on account of race, religion, or national origin." Id. It was under this more stringent standard that the Court held Iqbal's complaint to be inadequate.On the other hand, the slight increase in the number of motions to dismiss filed, together with a constant rate of success, appears to result in the dismissal of modestly more cases. Fanny Farmer Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. And they refused to accept "unwarranted inferences" from those allegations. Lower courts have begun to flesh out the details of this approach. As a threshold matter, where there is any doubt regarding the scope of an underlying cause of action, Iqbal indicates that it is important to "begin by taking note of the elements a plaintiff must plead to state a claim." 129 S. The Court could well have accepted the government's concession—as the four dissenting justices would have—and disposed of the case without deciding the underlying elements of the Bivens cause of action at issue.One year after Iqbal apparently solidified the new regime, this Commentary examines the real-world effect of Twombly and Iqbal on dismissals in federal civil cases; analyzes, in light of this effect and indications so far from the lower courts, what factors practitioners should consider at the Rule 12(b)(6) stage; and explains the proposed congressional responses. in a simple factual situation vary from those in more complex factual situations") (internal quotation marks omitted).Understanding the Modest Results of Iqbal and Twombly So Far The broadest available statistics indicate that, overall, motions to dismiss are not dramatically more likely to be filed or succeed now than before Twombly and Iqbal. Thus, the key principles animating Twombly and Iqbal appear hardly novel.Such cases, usually pro se, are not unheard of since Iqbal. does not prevent a plaintiff from pleading facts alleged 'upon information and belief'  where the facts are peculiarly within the possession and control of the defendant, or  where the belief is based on factual information that makes the inference of culpability plausible." Arista Records, LLC v. Thus, the "information and belief" label is a signal to consider whether the plaintiff has met one of these requirements.A paradigm for the first is when a case turns on the content of records of the defendant.
Twombly and Iqbal do not suspend Rule 12(d)'s requirement that motions to dismiss relying on facts outside the pleadings be treated as motions for summary judgment. Another reasoned that "common sense counsels against inferring that a substantial international bank, bearing an historic name and presumably wishing to maintain a global reputation for integrity and honorable dealing, would, with no stake in the criminal securities fraud itself, and no financial incentive other than to maintain the patronage of a fee-generating client, enter into a conspiracy with two … Fair notice under Rule 8(a)(2) depends on the type of case….'" Phillips v. Again, the Courts of Appeals are credibly drawing on the Supreme Court's decisions. P., Appx., Form 10 ("The defendant owes plaintiff $___ according to the account set out in Exhibit A"); Form 11 ("On defendant negligently drove a motor vehicle against plaintiff"); Form 18 (alleging that plaintiff owned a particular patent and that defendant infringed the patent by making, selling, and using a particular product). First, a defendant might suggest, where appropriate given the nature of the case, that the plaintiff's claim is meritless or abusive. Cooney, 583 F.3d at 971 ("This case is not a complex litigation, and the two remaining defendants do not claim any immunity. Ill.) (citing Twombly and Iqbal, allowing only two interrogatories that defendant admitted it could answer without much difficulty, and noting that "the policy against burdensome discovery in complex cases during the pendency of a motion to dismiss holds fast").Academic questions aside, the practical effect of Twombly and Iqbal is a crucial consideration for litigators drafting complaints or contemplating motions to dismiss. 489, 493 (1996) (citing Conley but explaining that, "although the plaintiff enjoys the benefit of all inferences that plausibly can be drawn from the pleadings, a party's legal conclusions, opinions, or unwarranted averments of fact will not be deemed admitted"); Read Drug v. 1968) (explaining that a complaint must "have sufficient specificity in its allegations to provide facts …Adding to their uncertainty, practitioners could face another set of questions if Congress acts on deceptively simple bills introduced following Iqbal to overturn the decisions. to apprise the opposite party of what is meant to be proved" and that "the necessary allegations of fact …The Judicial Conference of the United States, through the Standing Committee on Rules of Practice and Procedure and the Advisory Committee on Civil Rules, has compiled detailed statistics showing the prevalence and success rate of motions to dismiss in all federal courts dating back to January 2007. During the four months before Twombly, litigants each month filed an average of 17,980 new cases and 6,180 motions to dismiss, and saw 2,360 motions to dismiss granted. But that does not mean that Twombly and Iqbal changed nothing.Thus, motions to dismiss were filed in about 34 percent of all cases, and (roughly speaking) courts granted 38 percent of the motions filed. 519, 526-28 (1983), as long as lower courts did not adopt specific requirements of heightened pleading for particular kinds of cases. Rather, they have clarified and focused for the lower courts the standard governing motions to dismiss, particularly by emphasizing and providing terms for applying the second half of Rule 8's requirement of "a short and plain statement of the claim showing that the pleader is entitled to relief." As explained below, these changes not only impact litigants' general approach to motions to dismiss, but also may significantly affect particular cases and issues.