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December 2010

Iqbal and Twombly article

Here is a link to an article on Iqbal and Twombly published in the FDCC Quarterly.  Interestingly, the District of Columbia is one of seven jurisdictions on the state level that have adopted Twombly.  I can't say I have seen much of a difference in the way Superior Court judges handle motions to dismiss.


In a recent case, Duk Hea Oh v. National Capital Revitalization Corporation, the District of Columbia Court of Appeals stated in a footnote that it has not yet definitively decided whether to adopt the standards of Twombly and Iqbal:

Until 2007, the federal standard for pleadings was the one set out in Conley v. Gibson, 355 U.S. 41, 45 (1957) ("[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that a plaintiff can prove no set of facts in support of his claim which would entitle him to relief"). The Supreme Court has rejected the Conley standard in favor of a higher pleading threshold. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009). In Twombly, an antitrust case, the Supreme Court "retired" the "no set of facts" language in favor of a new "plausibility" standard. Twombly, 550 U.S. at 553. In Iqbal, the Court confirmed that Twombly "governs the pleading standard for all civil actions . . . and proceedings in the United States district courts." Iqbal, 129 S.Ct. at 1953 (citation and internal quotation marks omitted). Iqbal held that in order "[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face,'" explaining that "[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949.

Although the Iqbal Court did not explicitly discuss affirmative defense pleadings, many U.S. District Courts have applied this higher standard to all pleadings, whether complaints or affirmative defenses. See, e.g., Castillo v. Roche Laboratories, 2010 U.S. Dist. LEXIS 87681, at *4-*5 (S.D. Fla. July 30, 2010) (collecting cases and observing that "[w]hile no Circuit Courts of Appeals have addressed whether this heightened pleading standard applies to affirmative defenses, a majority of lower courts have found that it does"). Other courts have explicitly declined to apply the Twombly/Iqbal standard to affirmative defenses. See id. at *6-*7 (collecting cases). This court has not definitively decided whether to adopt that standard for complaints, much less whether to apply the standard to affirmative defenses. . . .

Duk Hea Oh, at fn. 10.

Upcoming amendments to the Federal Rules of Civil Procedure

The following is a summary of amendments to the Federal Rules of Civil Procedure that will become effective in December, 2010:

The proposed amendments to Rule 8 delete the reference to “discharge in bankruptcy” from the rule’s list of affirmative defenses that must be asserted in response to a pleading.

The proposed amendments to Rule 26 extend work-product protection to the discovery of draft reports by testifying expert witnesses and, with three important exceptions, to the discovery of communications between testifying expert witnesses and retaining counsel. The amendments also provide that a lawyer relying on a witness who will provide expert testimony but is not required to provide a Rule 26(a)(2)(B) report – because the witness is not retained or specially employed to provide expert testimony and is not an employee who regularly gives expert testimony – must disclose the subject matter of the witness’s testimony and summarize the facts and opinions that the witness is expected to offer.

The proposed amendments to Rule 56 are intended to improve the procedures for presenting and deciding summary judgment motions, to make the procedures more consistent across the districts, and to close the gap that has developed between the rule text and actual practice. The amendments are not intended to change the summary judgment standard or burdens. The amendments include (1) requiring that a party asserting a fact that cannot be genuinely disputed provide a “pinpoint citation” to the record supporting its fact position; (2) recognizing that a party may submit an unsworn written declaration, certificate, verification, or statement under penalty of perjury in accordance with 28 U.S.C. § 1746 as a substitute for an affidavit to support or oppose a summary judgment motion; (3) setting out the court’s options when an assertion of fact has not been properly supported by the party or responded to by the other party, including considering the fact undisputed for purposes of the motion, granting summary judgment if supported by the motion and supporting materials, or affording the party an opportunity to amend the motion; (4) setting a time deadline, subject to variation by local rule or court order in a case, for the filing of a summary judgment motion; (5) explicitly recognizing that “partial summary judgment” may be entered; and (6) clarifying the procedure for challenging the admissibility of summary judgment evidence.

 See Summary of Proposed Amendments to Federal Rules.

Here are the relevant Rules with the amendments incorporated.

Under the amended Rule 26, hybrid fact/expert witnesses who have not been retained to testify, such as treating physicians, do not have to write reports, but the Rule requires expert witness disclosures concerning any expert opinions they intend to offer.

Under the amended Rule 56, the undisputed material facts justifying the motion for summary judgment will need to be supported by pinpoint cites to the record.