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    Civil Procedure

    Submission of Materials Outside the Pleadings in Response to a Rule 12(b)(6) or Rule 12(c) Motion

    Posted by Paul A. Ferrer on October 16, 2018 at 11:27 AM

    Paul Ferrer—Senior Attorney, National Legal Research Group

              We have written frequently in the Lawletter about the revolution in federal pleading practice occasioned by the Supreme Court’s decisions in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under the new standard, a claim is sufficient to withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure (or a motion for judgment on the pleadings under Rule 12(c)) only when, accepting as true the facts alleged in the complaint but not any legal conclusions, the claim has “facial plausibility,” that is, it allows the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678; see also Twombly, 550 U.S. at 570 (the plaintiff must allege enough by way of factual content to “nudge” her claim “across the line from conceivable to plausible”). This standard requires the plaintiff to include more facts in her complaint than were necessary before the dawn of the Twombly/Iqbal era.

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    Topics: federal pleading practice, facial plausibility, reasonable particularity, evidentiary support documents

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