Commercial Litigation and Arbitration

Complaints Must Plead Facts

On May 21, 2007, the Supreme Court changed the law of notice pleading. It held in Bell Atlantic Corp. v. Twombly, 2007 U.S. LEXIS 5901 (U.S. May 21, 2007) that plaintiffs must allege facts sufficient to show an entitlement to relief.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, [Conley v. Gibson, 355 U.S. 41, 47 (1957)]; Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (CA7 1994), a plaintiff's obligation to provide the "grounds" of his "entitlement to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U.S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation"). Factual allegations must be enough to raise a right to relief above the speculative level, see 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004) (hereinafter Wright & Miller) ("The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action"), n3 on the assumption that all the allegations in the complaint are true (even if doubtful in fact), see, e.g., Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327 (1989) ("Rule 12(b)(6) does not countenance . . . dismissals based on a judge's disbelief of a complaint's factual allegations"); Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) (a well-pleaded complaint may proceed even if it appears "that a recovery is very remote and unlikely").

This is a very significant decision that extends beyond the antitrust context in which it arises. Although Bell Atlantic cites Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), the cite is to a footnote that is making a separate point (‛we must accept as true all of the factual allegations contained in the complaint“). While Swierkiewicz presumably retains some vitality, it is difficult to reconcile with Bell Atlantic the Swierkiewicz holdings that (1) ‛it is not appropriate to require a plaintiff to plead facts establishing a prima facie case‛ and (2) ‛Federal Rule of Civil Procedure 8(a)(2) ... provides that a complaint must include only ‘a short and plain statement of the claim showing that the pleader is entitled to relief.’ Such a statement must simply ‘give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.’“ Nor is it clear that the forms annexed to the Federal Rules of Civil Procedure comply with the Bell Atlantic standard.

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