Has the United States Supreme Court backed away from its landmark toughening of the test for pleading a claim in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)?
Seven years after Blawgletter said that "[w]e'll save our assessment of [Twombly's] impact until the impact becomes clearer", we can now aver that the signs point to a clear yes answer.
The Court's Twombly record
Counting today's ruling in Johnson v. City of Shelby, No. 13-1318 (U.S. Nov. 10, 2014) (per curiam), a majority opinion of the Court has applied Twombly a total of five times.*
The tally so far?
Plaintiffs four, defendants one -- an 80 percent win rate for plaintiffs.**
The new case
In Johnson v. City of Shelby, two police officers claimed that the City of Shelby fired them "because they refused to turn a blind eye to the criminal activities of one of the [Shelby] aldermen". Johnson v. City of Shelby, No. 12-60735, slip op. at 2 (5th Cir. Nov. 19, 2013) (per curiam). The defect in their complaint, according to the Fifth Circuit, arose from the fact that "it does not invoke [22 U.S.C.] § 1983 for claims of constitutional violations under color of state law." Id. at 4.
The Court "summarily reverse[d]" on the ground that "no heightened pleading rule requires plaintiffs seeking damages for violations of constitutional rights to invoke §1983 in order to state a claim." Johnson v. City of Shelby, slip op. at 1. The Fifth Circuit's justification for requiring an express mention of section 1983 -- that it "bears on" whether a defendant may assert a "qualified immunity" defense -- did not persuade the Court; "[n]o 'qualified immunity analysis' is implicated here," the Court pointed out, "as petitioners asserted a constitutional claim against the city only, not against any municipal officer." Id. at 2.
The Court went on to distinguish Twombly and Iqbal -- the only defense win that Twombly has prompted in the Court -- thus:
Our decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), are not in point, for they concern the factual allegations a complaint must contain to survive a motion to dismiss. A plaintiff, they instruct, must plead facts sufficient to show that her claim has substantive plausibility. Petitioners’ complaint was not deficient in that regard. Petitioners stated simply, concisely, and directly events that, they alleged, entitled them to damages from the city. Having informed the city of the factual basis for their complaint, they were required to do no more to stave off threshold dismissal for want of an adequate statement of their claim. See Fed. Rules Civ. Proc. 8(a)(2) and (3),(d)(1), (e).
Id. at 2-3.
What it means
A five-to-one win record for plaintiffs in any kind of case before this Court means something. But what?
Blawgletter suspects that it signifies the Court feels sheepish about coming up with the "plausibility" test in the first place. Twombly followed decades of rulings that required courts to assume the truth of all factual allegations, plausible or not, so long as they didn't descend into the realm of fantasy.
The Court never says anything like that, of course, but we think we see a clue in the last sentence of their per curiam opinion (with our emphasis):
For clarification and to ward off further insistence on a punctiliously stated “theory of the pleadings,” petitioners, on remand, should be accorded an opportunity to add to their complaint a citation to §1983. See 5 Wright & Miller, supra, §1219, at 277–278 (“The federal rules effectively abolish the restrictive theory of the pleadings doctrine, making it clear that it is unnecessary to set out a legal theory for the plaintiff’s claim for relief.” (footnotes omitted)); Fed. Rules Civ. Proc. 15(a)(2) (“The court should freely give leave [to amend a pleading] when justice so requires.”).
Id. at 3. The stress on "insistence" and "punctiliously" implies a certain irritation, perhaps even a bit of petulance, at the many gripes about the Court's abrupt "break from the liberal pleading doctrine enunciated in 1957 by Conley [v. Gibson, 355 U.S. 41]."***
An appearance of possible sheepishness about Twombly of course does not wipe Twombly off the books. But it does help explain why lower courts appear not to have radically changed the frequency of dismissals for failure to state a claim. Maybe they feel sheepish about it too.
* The other cases: Fifth Third Bancorp v. Dudenhoeffer, 134 S. Ct. 2459 (2014) (post here); Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309 (2011); Ashcroft v. Iqbal, 556 U.S. 662 (2009) (post here); Erickson v. Pardus, 551 U.S. 89 (2007) (post here). A sixth decision, in Pacific Bell Telephone Co. v. Linkline Communications, Inc., 555 U.S. 438 (2009), remanded to the court of appeals for the purpose of applying the Twombly standard in the first instance.
These cases do not include Justice Breyer's mention of Cy Twombly -- a Blawgletter favorite -- in a recent copyright case, Kirtsaeng v. John Wiley & Sons, Inc., 133 S. Ct. 1351 (2013) (post here).
** In Dudenhoeffer, the Court rejected a "presumption of prudence" for defendants in some retirement-fund cases. In Matrixx Initiatives, the majority held that the plaintiffs in a securities fraud case had adequately pleaded the materiality element. Erickson v. Pardus upheld a prisoner's complaint about improper denial of access to medication for hepatitis C. The sole defense win, in Iqbal, went against plaintiffs who claimed that high government officials violated the first and fifth amendment rights of Arab Muslims by permitting their arrest and confinement in the wake of the 9-11 attacks.
*** Alexander A. Reinert, The Burdens of Pleading, 162 U. Pa. L.Rev. 1767, 1773 (2014) (footnote omitted). The article collects a good number of the complaints about Twombly.