The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.
Issue link: https://kentuckybenchandbar.epubxp.com/i/546018
perience and common sense to perform the "context-specific" task of disregarding the conclusions set out in a complaint, identifying the well-pleaded factual allega- tions, assuming their truth, and then deter- mining whether they "plausibly give rise to an entitlement to relief." 15 Twombly and Iqbal have caused rivers of ink to flow. Scholarly debate has raged over the wisdom and impact of the decisions. Courts have cited those decisions in over 210,000 cases as of June 2015. 16 In the federal courts of Kentucky alone (including decisions by the U.S. Court of Appeals for the Sixth Circuit in appeals from the Kentucky district courts), Twombly has been cited 1,803 times, and Iqbal has been cited 994 times. 17 Debate continues over whether or not Twombly and Iqbal have actually resulted in more federal cases being dismissed at the outset for failure to state a claim. 18 It also continues over the extent to which practi- tioners and trial court judges have actually changed their practices. 19 There can be no question, however, that the U.S. Supreme Court intended Twombly and Iqbal to set a heightened standard of pleading. KENTUCKY'S STANDARD Twombly and Iqbal have not yet had the same impact on the Kentucky courts; in- deed, they have gone almost completely unremarked in published decisions. Since its adoption in 1953, CR 8.01(1) has been identical to Federal Rule of Civil Procedure 8(a)(2). Like its federal counterpart, CR 8.01(1) also requires only that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Kentucky Supreme Court has explained: "It is not necessary to state a claim with technical precision under this rule, as long as a complaint gives a defen- dant fair notice and identifies the claim." 20 Kentucky has long followed its own version of the Conley v. Gibson "no set of facts" standard. The Kentucky Supreme Court's formulation of the test is: "A motion to dis- miss for failure to state a claim upon which relief may be granted admits as true the material facts of the complaint. So a court should not grant such a motion unless it ap- pears the pleading party would not be enti- tled to relief under any set of facts which could be proved…." 21 Courts have empha- sized "any" in the phrase "any set of facts." 22 This standard has been well-settled for decades. 23 Traditionally, in the Kentucky state courts, "[t]he motion to dismiss for failure to state a claim is viewed with disfavor and rarely granted." 24 Kentucky's "any set of facts" standard has not changed in any published case to date, despite the stir over Twombly and Iqbal in the federal courts. As of June 2015, Twombly and Iqbal have never been cited by the Kentucky Supreme Court. 25 In 2010, the Kentucky Supreme Court applied the traditional "any set of facts" standard with- out mentioning Twombly or Iqbal. 26 The Kentucky Court of Appeals has continued to apply the traditional standard regularly; it did so as recently as June 2015. 27 Indeed, there appears to be only one deci- sion available from any Kentucky court that cites either Twombly or Iqbal on issues re- lating to sufficiency of the pleadings. The Kentucky Court of Appeals cited Twombly in one unpublished opinion in 2009. In that case, Espinosa v. Jefferson/Louisville Metro Government, the Court of Appeals af- firmed the Jefferson Circuit Court's dis- 26 B&B; • 7.15 K E N T U C K Y C I V I L P R O C E D U R E : A R U L E S C O M P A R I S O N Assistance Provided With Organization Formation Organizational Policies & Procedures Assessment of Operations Continuous Improvement Systems (Quality) Board Governance Issues Complex Tax Matters For-Profit Subsidiaries and Joint Ventures Merger, Consolidation or Dissolution of Nonprofits Conley Salyer, Attorney, J.D., LL.M.; Examiner, Malcolm Baldrige National Quality Award (MBNQA). csal y er@nonpr ofita ttor ne y .net , (859) 281-1171, 710 E. Main Street, Lexington, KY 40502. www .nonpr ofita ttor ne y .net This is an advertisement. Nonprofit Organization Law Can Be Complex My Practice Is Limited to Advising Nonprofits and The Professionals Working With Them