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Unpublished Paper
Making Sense of Twombly
ExpressO (2011)
  • Edward D. Cavanagh

Abstract In May 2007, the Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Twombly has triggered an avalanche of motions to dismiss, which, in turn, have generated thousands of judicial opinions, some of them knee-jerk reactions, other more thoughtful. It also has generated a plethora of academic commentary, much of it shrill and negative. As the fourth anniversary of the Twombly decision approaches, the time for venting is over. Twombly is the law of the land; and the Supreme Court, having affirmed that decision in Iqbal, is not likely to shift course. Nor is the Advisory Committee likely to act absent empirical data showing that cases which would survive Rule 12(b)(6) motions prior to Twombly are now being dismissed. The likelihood of congressional action is even more remote. In short, the legal community is going to have to live with the Twombly holding and probably for a long time. Still, the scope of Twombly remains unsettled and “[p]leading standards in federal litigation are in ferment. This article will explore how trial courts can adhere to Twombly’s core concerns—not allowing speculative claims to open the door to potentially costly discovery and draining of judicial resources by dismissing those complaints “that merely create [ ] a suspicious [of] a legally cognizable right of action,” while at the same time remaining true to the goals of the Federal Rules of Civil Procedure that meritorious litigants shall have their day the court. Among other things, I suggest that (1) the courts apply a proportionality standard in passing on pleadings under Twombly; (2) the courts be circumspect in dismissing cases on the pleadings where information is the exclusive control of the defendants and no discovery has been had; (3) courts as a general rule dismiss claims without prejudice; and (4) the courts avoid the pitfalls of the fact/conclusion dichotomy experienced at common law and under the codes. The article also explores the perverse (and unintended) effect of Twombly may be more discovery and even fewer trials.

Publication Date
March 5, 2011
Citation Information
Edward D. Cavanagh. "Making Sense of Twombly" ExpressO (2011)
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