A New Pleading Standard

Rule 8 of the Federal Rules of Civil Procedure requires only a "short and plain statement of the claim showing that the pleader is entitled to relief." And, for years, the federal standard for dismissal of a complaint for failure to state a claim was that "a complaint should not be dismissed . . . 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." See Conley v. Gibson, 355 U.S. 41, 45-45 (1957).

Well, things have changed. Maybe. In Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007), the U.S. Supreme Court appears to have adopted a different -- more amorphous -- standard. The Court stated that, while a complaint need not contain detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than "labels and conclusions . . . Factual allegations must be enough to raise a right to relief above the speculative level." The threshold requirement of Rule 8(a)(2) is that the "plain statement" possess enough heft to "show that the pleader is entitled to relief." The Court described the requirement as one of "plausibility." The factual allegations must plausibly state a claim. The Court laid Conley to rest:

On such a focused and literal reading of Conley's “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery . . . . It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case . . .

We could go on, but there is no need to pile up further citations to show that Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint.

Yet, in an opinion issued subsequent to Twombly, the U.S. Supreme Court held that the Tenth Circuit improperly dismissed a sec. 1983 claim for failure to state a claim. See Erickson v. Pardus, 127 S. Ct. 2197 (2007). Citing Twombly, the Court stated that "[s]pecific facts are not necessary; the statement need only 'give the defendant faire notice of what the claim is and the grounds upon which it rests.'" The Court held that the plaintiff had adequately stated a claim by alleging that his medication had been withheld and that prison officials were refusing treatment. The plaintiff, who was pro se, had also attached certain documents to his complaint.

Aside from Erickson, the Tenth Circuit Court of Appeals has already latched on to the Twombly standard. In The Ridge at Red Hawk, L.L.C v. Schneider, 2007 WL 1969681 (10th Cir. 2007), the Court (via Judge Kelly), recognized the new Twombly standard. Quoting Twombly, the Court noted that a complaint must contain "enough facts to state a claim to relief that is plausible on its face." In other words, the plaintiff must "nudge his claims across the line from conveivable to plausible."

Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complaint must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.

In another case, the Tenth Circuit discussed the Twombly and Erickson cases, and re-emphasized that the standard was one of "plausibility" -- courts should look at the "specific allegations in the complaint to determine whether they plausibly support a legal claim for relief." See Alvarado v. KOB-TV, L.L.C., 2007 WL 2019752, 7 n.2 (10th Cir. 2007); see also Nasious v. Two Unknown BICE Agents, 2007 WL 1895877 (10th Cir. 2007) ("After all, these are, very basically put, the elements that enable the legal system to get weaving -- permitting the defendant sufficient notice to begin preparing its defense and the court sufficient clarity to adjudicate the merits."); White v. Ockey, 2007 WL 1600483 (10th Cir. 2007) (affirming dismissal of Fair Housing Act claim because "the complaint [was] so bare of pertinent factual allegations"). Notably, Judge Payne from the Northern District of Oklahoma has applied Twombly in a recent decision.

An aside: the new Twombly standard does not apply in the state court system. Oklahoma state courts follow what one might call a hyper-Conley standard. A petition filed in state court cannot be dismissed for failure to state a claim "unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle him to relief." See Fanning v. Brown, 2004 OK 7, 85 P.3d 841. The Fanning Court did state that a plaintiff's pleading burden consisted of providing notice of the claim and "the grounds upon which they rest," implying that some factual recitation would be appropriate.