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Tuesday, February 05, 2008

The Mystery of Twombly Continues

Today, the Third Circuit decided Phillips v. County of Allegheny (a Section 1983 case) in an opinion written by Judge Nygaard. The opinion is the latest to expound upon the Supreme Court’s pleading opinion of last term, Bell Atlantic v. Twombly.  It is worth a read if for no other reason than that it shows just how much the circuits continue to struggle to understand what Bell Atlantic means.

In a nutshell, the Third Circuit says that Bell Atlantic applies to the general pleading requirements in two ways: (1) it added new gloss to Rule 8 pleading by requiring at least some facts and by requiring that those facts “raise the right to relief above the speculative level”; and (2) it buried Conley’s “no set of facts” language.

The Third Circuit is almost certainly correct about the second point. As I have argued previously, Bell Atlantic’s disapproval of Conley is not restricted to antitrust.

The Third Circuit’s first point is more interesting, in part because it results in (at least in the Third Circuit's view) no substantive change to Rule 8 at all. More or less facts might be required depending upon the circumstances, but, in general, Rule 8 requires—and has always required—grounds showing entitlement to relief.

If that is all Bell Atlantic means outside of antitrust (and I have come to believe that there are decent arguments in support of that position), then Bell Atlantic really was unremarkable. (Or quite remarkable, in that the Court turned that very simple point into a cloud of obscurity.)

I do think that the Third Circuit’s conclusion that Bell Atlantic’s “plausibility standard” informs the general pleading standard is an unnecessary complication of the Third Circuit’s reasoning. A better reconciliation of “plausibility” and Rule 8 would have returned to the Third Circuit’s initial insight: context matters. In the unique circumstances of antitrust, inferential allegations of conspiracy must contain facts showing the conspiracy was plausible in order to show entitlement to relief. By contrast, in a garden-variety negligence case, for example, plausibility is not required; rather, even a bare averment of “negligently drove” may need no factual elaboration on the question of negligence in order to show entitlement to relief.

I thought a bibliography might be helpful for those interested in Bell Atlantic and its continuing interpretation. If I have left one out, please let me know.



Posted by Scott Dodson on February 5, 2008 at 11:40 PM | Permalink


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» Twombly: Trimming Some of the Possible Worlds from Concurring Opinions
Over at Prawfsblawg, Scott Dodson has a post up commenting on the latest judicial decision to attempt to make sense of the Supreme Court's civil procedure blockbuster last term, Bell Atlantic v. Twombly. Twombly held, seemingly contrary to what courts... [Read More]

Tracked on Feb 6, 2008 11:47:43 AM


Comment bleg for some free legal research--I'm working on a 12(b)(6) motion for a legal malpractice action, in which the Complaint simply alleges that the defendant(s) breached their duties of care, competence, etc., causing injury to plaintiffs. There are literally ZERO specifics (i.e., zero facts) as to what the defendants did or should have done. Does anyone know of a decision (from any court) throwing out a malpractice complaint under Twombly in these circumstances?

Posted by: anonymous | Feb 11, 2008 1:19:28 PM

If you are interested in more reading on Twombly, I have a forthcoming paper that talks about it, along with the other three antitrust cases from the 2006 Term. It is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1091498 (typo and all in the title).

Posted by: Randy Picker | Feb 9, 2008 4:34:07 PM

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