The Lawletter Vol 38 No 7
Paul Ferrer, Senior Attorney, National Legal Research Group
Plaintiffs looking to survive an early motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) must file a complaint that contains "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 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. This "plausibility" standard is "not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id.
The Supreme Court has specifically indicated that determining whether a complaint states a plausible claim for relief under this standard is "a context‑specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Nevertheless, there are boundaries to the reviewing court's discretion, though it may not always seem so in reviewing the post-Iqbal case law. For example, the Second Circuit has decided that it is not the district court's task in reviewing a motion to dismiss to decide between two plausible inferences that may be drawn from the factual allegations in the complaint: "A court ruling on such a motion may not properly dismiss a complaint that states a plausible version of the events merely because the court finds a different version more plausible." Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012), cert. denied, 133 S. Ct. 846 (2013). Thus, "[t]he question at the pleading stage is not whether there is a plausible alternative to the plaintiff's theory; the question is whether there are sufficient factual allegations to make the complaint's claim plausible." Id. at 189. The Second Circuit's formulation of the appropriate question recognizes that because the plausibility standard is lower than a probability standard, "there may therefore be more than one plausible interpretation of a defendant's words, gestures, or conduct. Consequently, although an innocuous interpretation of the defendants' conduct may be plausible, that does not mean that the plaintiff's allegation that that conduct was culpable is not also plausible." Id. at 189-90. Even after Twombly and Iqbal, "in determining whether a complaint states a claim that is plausible, the court is required to proceed 'on the assumption that all the [factual] allegations in the complaint are true[,'] [e]ven if their truth seems doubtful." Id. at 185 (court's emphasis) (quoting Twombly, 550 U.S. at 556). Because the plaintiff is entitled to the benefit of the doubt, "it is not the province of the court to dismiss the complaint on the basis of the court's choice among plausible alternatives"; rather, "the choice between or among plausible interpretations of the evidence will be a task for the factfinder," assuming that the plaintiff "can adduce sufficient evidence to support its factual allegations." Id. at 190.
There is no doubt that the plaintiff's job in pleading a sufficient claim in federal court is more difficult in the wake of Twombly and Iqbal. But cases like Anderson News give the pleader some ammunition in seeking to fend off an early Rule 12(b)(6) motion to dismiss. Under the reasoning of the Second Circuit, the plaintiff's job is to provide sufficient facts to create a plausible scenario for holding the defendant liable for the conduct alleged, not necessarily the most plausible scenario.
