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.
Of course, it can be difficult for the plaintiff to have access to the facts needed to plead a plausible claim before the doors of discovery have been unlocked, especially in cases where, as when fraud is alleged, the defendant’s state of mind is at issue. Some courts—the Seventh Circuit notably—have recognized this problem and emphasized the difference between pleading and proving one’s case when asserting a claim of fraud. See United States ex rel. Lusby v. Rolls-Royce Corp., 570 F.3d 849, 855 (7th Cir. 2009) (concluding that the plaintiff’s allegations of fraud satisfied both the Twombly/Iqbal standard and the particularity requirement of Fed. R. Civ. P. 9(b), because his accusations were not vague and were sufficient to inform the defendant exactly what the alleged fraud entailed; as such, the complaint was not required to rule out all of the defendant’s possible defenses).
The Seventh Circuit has also provided a procedural mechanism by which plaintiffs can, in a way, add content to their complaints after the fact in order to survive a motion to dismiss under Rule 12(b)(6). See Geinosky v. City of Chicago, 675 F.3d 743, 745 n.1 (7th Cir. 2012). In that case, the Seventh Circuit noted the familiar rule that a Rule 12(b)(6) motion can be based only on the complaint itself, including documents attached to, or referred to in, the complaint, and information that is properly subject to judicial notice. Id. If the defendant relies on any other materials in support of her motion, and they are not excluded by the court, then the motion must be treated as one for summary judgment under Rule 56. See id.; Fed. R. Civ. P. 12(d). The Seventh Circuit allowed, however, that a plaintiff opposing a Rule 12(b)(6) motion has “much more flexibility” and “may submit materials outside the pleadings to illustrate the facts the party expects to be able to prove,” without converting the motion into one for summary judgment. Geinosky, 675 F.3d at 745 n.1. In fact, the Seventh Circuit went so far as to suggest that in light of “the turmoil concerning civil pleading standards stirred up by” Twombly and Iqbal, a plaintiff opposing a Rule 12(b)(6) or Rule 12(c) motion “who can provide such illustration may find it prudent to do so,” as well as to “explain to the district court that the materials are being submitted for illustrative purposes and should not be used to convert the motion into a Rule 56 motion for summary judgment.” Id. The only limitation on the presentation of such materials appears to be that the plaintiff’s elaborations on her factual allegations must be “consistent with the pleadings.” Heng v. Heavner, Beyers & Mihlar, LLC, 849 F.3d 348, 354 (7th Cir. 2017) (quoting Geinosky, 675 F.3d at 745 n.1).
Some plaintiffs in the Seventh Circuit have wisely taken the Geinosky court’s not-so-subtle hint. See, e.g., Marion Healthcare, LLC v. S. Ill. Healthcare, No. 12-cv-871-SCW, 2018 WL 1318054 (S.D. Ill. Mar. 14, 2018). In that case, the plaintiff alleged that the defendant illegally suppressed competition for outpatient surgical services in the relevant market through exclusionary agreements with certain commercial health insurers. The defendant moved for partial judgment on the pleadings under Rule 12(c), arguing that the plaintiff could not recover on its antitrust claims during those time periods in which the defendant did not have in effect written contracts with exclusivity provisions. In response, the plaintiff submitted its expert’s report opining that the defendant’s exclusionary agreements continued on a constructive or de facto basis even during times in which there were no written exclusionary agreements in effect. Following the Seventh Circuit’s suggestion in Geinosky, the plaintiff explained to the district court that it was providing the report “merely for the purpose of demonstrating that the issues raised in [the defendant’s] motion are disputed issues of fact.” Id. at *5. The tactic worked, as the district court accepted the expert report for that purpose, without converting the defendant’s motion into one for summary judgment, and ultimately determined that the report was sufficient to create a factual issue that was more appropriately decided on a motion for summary judgment or at trial. Id. at *5, *8.
In sum, in the Seventh Circuit at least, plaintiffs would be well advised, when responding to a Rule 12(b)(6) or Rule 12(c) motion, to muster whatever evidentiary support they can to illustrate and elaborate on the facts alleged in their complaint. This device will not always be of use given that discovery probably will not even have commenced yet, but plaintiffs must take whatever small advantage is presented to them in navigating the post-Twombly/Iqbal pleading landscape.