OUTSIDE PERSPECTIVES
Show Me, Don’t Tell Me:
Rule 8(a)( 2) And The New Paradigm of
Plausibility Pleading
In a pair of landmark and somewhat controversial decisions, the Supreme Court announced a new pleading standard under Rule 8: a claim must be
“plausible on its face.”
While 12(b)( 6) motions to
dismiss are a familiar mech-
anism for challenging com-
plaints at the outset of litigation, the plausibility stan-
dard, first announced in Bell Atlantic v. Twombly, 550
U.S. 544 (2007), but recently ratified and somewhat
clarified in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009),
fortifies them with a new potency. In an era of costly
and burdensome discovery, the plausibility require-
ment is intended to make it easier to dispose of
meritless claims before handing over the keys to the
doors of discovery. But critics fear it may deny plain-
tiffs with valid claims from having their day in court.
Notice Pleading and The Costs of Discovery
The 1938 introduction of the Federal Rules of Civil
Procedure, including Rule 8, revolutionized federal practice. It liberalized the pleading standard, requiring only
that the complaint “give the defendant fair notice of what
the . . . claim is and the grounds upon which it rests.”
Conley, 355 U.S. at 47. It removed strict pleading technicalities that often impeded cases from being resolved on
their merits under the older common law and code
pleading regimes. JACK H. FRIEDENTHAL ET AL., CIVIL
PROCEDURE §§ 5.1-5.8 (3d ed. 1999). Relaxing the pleading standard made disposal of groundless claims at the
pleading stage less likely. However, the federal rules
simultaneously introduced “broad rules of discovery and
an elaborate provision for summary judgment,” which, it
was thought, would effectively weed out sham claims and
defenses on their merits. Id. at § 5. 7; accord Conley, 355
U.S. at 47-48.
In Twombly, the Court retained the understanding that
the purpose of pleading is to “give the defendant fair
notice of what the . . . claim is and the grounds upon
which it rests.” Twombly, 550 U.S. at 555 (quoting Conley).
But its adoption of the plausibility standard marked a sea
change with respect to what suffices to state a claim and
its grounds. Perhaps not surprisingly, the reaction to this
paradigm shift, which raises the bar for plaintiffs, has been
varied. In fact, legislation has been introduced in both
the House and Senate to return the pleading standard to
the Conley “no set of facts” standard. S. 1504, 111th
Cong. (2009); H.R. 4115, 111th Cong. (2009).
The Court thought the “practical significance” of its
plausibility requirement lies in precluding claimants
whose allegations amount to no more than a mere possibility of entitlement to relief from wasting time and
resources and driving up the nuisance/settlement value of
groundless claims. Id. at 558. The Court balanced the
virtues of notice pleading with the reality that “discovery
