This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. The study compared motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.

Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was “not whether [Skinner] will ultimately prevail” on his procedural due process claim, see Scheuer v. Rhodes, 416 U. S. 232, 236 (1974), but whether his complaint was sufficient to cross the federal court’s threshold, see Swierkiewicz v. Sorema N. A., 534 U. S. 506, 514 (2002). Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure §1219, pp. 277–278 (3d ed. 2004 and Supp. 2010).

Why Twombly is Good Law (But Poorly Drafted) and Iqbal Will Be Overturned

In the attempt to decipher what is required to plead a claim for relief in federal court after the Supreme Court’s decisions in Bell Atlantic Corporation v. Twombly and Ashcroft v. Iqbal, commentators have usually combined these two cases as being part of the same "revolution" in pleading. The Iqbal case is often credited for clearing up lingering questions regarding the scope of the "plausibility" analysis introduced in Twombly. Apart from this issue, however, Twombly and Iqbal have usually been discussed as a cohesive pair. They have been jointly criticized. Occasionally, they have been jointly praised.

The tendency to view Twombly and Iqbal as a collective unit has, unfortunately, interfered with efforts to understand pleading doctrine. The cases have dissimilar analytical foundations. In short, the Twombly decision can be justified as merely an application of preexisting principles regarding pleading; the Iqbal case, however, was wrongly decided and is destined to be overruled. To jointly criticize both opinions is to throw the baby (Twombly) out with the bathwater (Iqbal); to jointly praise both opinions, to continue the analogy, is to miss how dirty the bath water is in which the baby is sitting. Until Twombly and Iqbal are decoupled and considered as separate entities, pleading jurisprudence will continue in a state of disarray.