Bench & Bar

JUL 2015

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.

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The Federal and Kentucky Rules of Civil Procedure governing pleading and motions to dismiss for failure to state a claim have been the same for many years. And for decades, the standards that the federal and Kentucky courts applied to test the suffi- ciency of pleadings were indistinguishable. However, several years ago, the United States Supreme Court raised the bar for pleading under the federal rules. The Ken- tucky courts have not – or at least not yet. While the traditional standard continues to be cited in Kentucky's published decisions, the stricter federal standard nevertheless af- fects Kentucky practitioners. THE FEDERAL STANDARD When the U.S. Supreme Court announced its decision in Bell Atlantic Corp. v. Twombly 1 in 2007, and then reinforced that decision two years later in Ashcroft v. Iqbal, 2 it upended federal pleading standards that had been well-settled for many years. In 1938, the Federal Rules of Civil Procedure instituted notice pleading in the federal courts, abandoning technical pleading rules. Rule 8(a)(2) required then, as it still does now, only "a short and plain state- ment of the claim showing that the pleader is entitled to relief." As the U.S. Supreme Court explained in 1957 in Conley v. Gibson, the purpose was to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." 3 Complaints satisfied Rule 8(a)(2) without setting out detailed facts, as long as they provided fair notice of the nature of the claim. Furthermore, in Conley, the Court held that a motion to dismiss for failure to state a claim, pursuant to Rule 12(b)(6), would not be granted "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." 4 For 50 years after Conley was decided, the standard remained essentially unchanged. Claims were dismissed under Rule 12(b)(6) only where no viable legal theory supported them. 5 That changed with Twombly in 2007. The U.S. Supreme Court declared that "after puzzling the profession for 50 years," Con- ley's familiar "no set of facts" standard "has earned its retirement." 6 In its place, the Court substituted a plausibility standard, under which a complaint must contain "enough facts to state a claim to relief that is plausible on its face." 7 Twombly was a putative antitrust class action by subscribers to local telephone and Internet services, al- leging a conspiracy among the service providers. The case had the obvious poten- tial to involve massive discovery and to be very costly and protracted. In laying out the rationale supporting the Court's new plausi- bility standard, the Court stressed that the lower courts "must retain the power to in- sist upon some specificity in pleading be- fore allowing a potentially massive factual controversy to proceed." 8 Otherwise, de- fendants could be coerced into settling groundless cases solely to avoid the bur- dens of discovery. 9 This emphasis on gate-keeping for com- plex, burdensome cases led some com- mentators and lower courts to conclude that Twombly applied only to cases in which the cost of discovery was likely to be so high that it could coerce settlements. 10 However, just two years later, in 2009, the Court dispelled that idea when it issued its decision in Ashcroft v. Iqbal. In that case, which was a single plaintiff alien detainee case, the Court made it clear that the plau- sibility standard applied to all civil cases. 11 The Court also laid out the "working princi- ples" that underlay its decision in Twombly. First, the requirement that a court must ac- cept as true all of the allegations in a com- plaint "is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclu- sory statements, do not suffice." 12 Second, "only a complaint that states a plausible claim for relief survives a motion to dis- miss." 13 The Court stated that Rule 8 may have laid to rest the age of "hyper-techni- cal" pleading, but "it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." 14 Thus, lower courts are to draw on their judicial ex- 25 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 PLEADING CLAIMS IN KENTUCKY STATE COURT AFTER TWOMBLY AND IQBAL By: E. Kenly Ames

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