October 21, 2010
The Twombly and Iqbal decisions have sometimes been considered a thorn in the side of Plaintiff attorneys as well as some courts the past few years. See this news search: (plaintiff /7 attorney lawyer counsel /250 twombly iqbal & pleading plaus!) & da(last 3 years)). But, the Twombly/Iqbal interpretation of Federal Rule of Civil Procedure (FRCP) 8(a) certainly increased the awareness of pleading standards from both sides of civil lawsuits. In general, the Twombly/Iqbal decisions standardized the plausibility pleading standard requiring plaintiffs to hash out some facts in order to prevent a successful 12(b)(6) motion to dismiss. See Wright & Miller, FPP § 1202. The news and scholarly commentary either falls along the lines that there was no effect on pleading standards post-Twombly/Iqbal or they created an unfair heightened standard for plaintiffs beyond the language of FRCP 8. For some great articles on Twombly/Iqbal and its effect (or non-effect) on pleading, try ti(twombly /s iqbal) in Journals and Law Reviews (JLR).
The outcry from plaintiff attorneys has led to a couple of bills in Congress to “repeal” Twombly/Iqbal (see H.R. 4115 and S.1504) that would effectively circumvent the current process for reviewing and updating the procedural rules under the Rules Enabling Act (28 U.S.C. § 2072 et seq).
I listed below a few sample searches that bring up material that may be helpful for pleading standard searches. Please note that I keyed my search to pleadings in Fair Labor Standard Act cases, but those terms can easily be substituted. Courts do occasionally misspell terms, so it may be helpful to supplement your search with common or even uncommon misspellings. For a frequently cited Supreme Court case, use the U.S. and Sct. Citations. For a misspelling example, do a search for Twombley in ALLCASES and you will get 840 hits. Running Twombly yields well over 35,000.
Database – ALLFEDS
Sample Westlaw Search – TWOMBLY TWOMBLEY “550 U.S. 544” “127 S.CT. 1955” IQBAL “129 S.CT. 1937” /P PLEAD! FACT! COMPLAINT PLAUS! CONCLUS! “STATUTORY LANGUAGE” /250 12(B)(6) (MOTION /3 DISMISS!) /250 “FAIR LABOR STANDARDS ACT” F.L.S.A. “EQUAL PAY ACT” (29 +1 U.S.C! +5 206 207 215(A))
WestlawNext: Basically, most of the searching concerns I have on Westlaw are mitigated on WestlawNext. There are no limits on the number of Keycite Citing References you can search and a West Search including Twombly and Iqbal will bring up cases in relevancy order. Of course, you can always run the above search on WestlawNext as well.
Sample WestlawNext Search: Fair Labor Standards Act Twombly Iqbal Pleading Standard