Motions to Dismiss for Failure to 

State a Claim After Iqbal

Report to the Judicial Conference

Advisory Committee

on Civil Rules

Joe S. Cecil, George W. Cort, 

Margaret S. Williams & Jared J. Bataillon

Federal Judicial Center

March 2011

This Federal Judicial Center publication was undertaken in furtherance of the Center’s statutory 

mission to conduct and stimulate research and development for the improvement of judicial administration. While the Center regards the content as responsible and valuable, it does not reflect 

policy or recommendations of the Board of the Federal Judicial Center.

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center iii

Contents

Acknowledgments v

Executive Summary vii

I. Origin of the Study 1

II. Methodology 5

III. Results 7

A. Filing Rates for Motions to Dismiss for Failure to State a Claim 8

B. Outcome of Motions to Dismiss for Failure to State a Claim 12

1. Motions Granted with Leave to Amend 12

2. Motions Granted on All Claims Asserted by One or More Plaintiffs 17

IV. Discussion and Conclusion 21

Appendix A: Multivariate Statistical Models 25

A. Filing of Motion to Dismiss for Failure to State a Claim 25

B. Outcome of Motions to Dismiss for Failure to State a Claim 27

1. Motions Granted With or Without Leave to Amend 27

2. Motions Granted with Respect to Only Some or All of the Claims of a Plaintiff 

30

C. Summary 33

Appendix B: Identification of Cases and Designation of Case Types 35

Appendix C: Coding and Analysis of Motions and Orders 41

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center v

Acknowledgments

The authors are grateful to so many of our colleagues for the excellent assistance 

they provided throughout the course of this study. Matthew Ward and Shelia 

Thorpe of the Federal Judicial Center assisted us in structuring this study through 

the data they collected as part of our pilot projects. Matthew Ward and Jill Curry 

prepared a supplemental assessment of cases removed from state court. Professor 

David Rindskopf of the City University of New York Graduate Center provided 

guidance concerning the statistical analyses. We are especially grateful to Professor Steven Gensler and our conscientious coding team of recent graduates of the 

University of Oklahoma School of Law: Amanda Janssen, Cale Drumright, Conor 

Cleary, Jackie Campbell, Lauren Lindsey, Terra Lord, Michael Cromwell, Jared 

Weir, and John Reid. Jackie Campbell continued to assist us with this project after 

coming to the Federal Judicial Center.

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center vii

Executive Summary

This report presents the findings of a Federal Judicial Center study on the filing 

and resolution of motions to dismiss for failure to state a claim under Rule 

12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the 

Judicial Conference Advisory Committee on Civil Rules. The study compared

motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to 

control for such factors as differences in levels of motion activity in individual 

federal district courts and types of cases.

After excluding cases filed by prisoners and pro se parties, and after controlling for differences in motion activity across federal district courts and across 

types of cases and for the presence of an amended complaint, we found the following:

• There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A).

• In general, there was no increase in the rate of grants of motions to dismiss 

without leave to amend. There was, in particular, no increase in the rate of 

grants of motions to dismiss without leave to amend in civil rights cases 

and employment discrimination cases (see infra section III.B.1).

• Only in cases challenging mortgage loans on both federal and state law 

grounds did we find an increase in the rate of grants of motions to dismiss 

without leave to amend. Many of these cases were removed from state to 

federal court. This category of cases tripled in number during the relevant 

period in response to events in the housing market (see infra section 

III.B.1). There is no reason to believe that the rate of dismissals without leave 

to amend would have been lower in 2006 had such cases existed then.

• There was no increase from 2006 to 2010 in the rate at which a grant of a

motion to dismiss terminated the case (see infra section III.B.1).

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 1

I. Origin of the Study

In October 2009, the Judicial Conference Advisory Committee on Civil Rules 

asked the Federal Judicial Center to undertake an analysis of changes in the filing 

and resolution of motions to dismiss filed under authority of Federal Rule of Civil 

Procedure 12(b)(6). This request was prompted by two recent Supreme Court decisions—Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. 

Iqbal, 556 U.S. _, 129 S. Ct. 1937 (2009)—that interpreted Rule 8(a) by stating 

that a plaintiff must present a “plausible” claim for relief. A number of commentators expressed concern about whether lower courts would apply Twombly and 

Iqbal to dismiss claims that, had discovery proceeded, would have been shown to 

be meritorious.1

This study was designed to assess changes in motions to dismiss and decisions 

on such motions over time in broad categories of civil cases. Of course, this study 

could not fully capture all of the factors affecting motions to dismiss. In particular, it could not fully reflect the appellate court case law that continues to develop 

and that provides specific guidance for district courts.

At the request of the Advisory Committee, the Administrative Office of the 

U.S. Courts (AO) developed a series of tables that track the numbers of motions 

to dismiss filed and decided across all federal courts.2 These tables do not indicate 

a clear change in filing patterns or disposition patterns after Twombly or Iqbal.

But they include all types of motions to dismiss3

Three scholars have undertaken four empirical studies to assess changes in 

pleading practice following the Twombly and Iqbal Supreme Court decisions.

and do not permit a precise assessment of Rule 12(b)(6) motions to dismiss for failure to state a claim. They 

also do not distinguish between orders granting motions to dismiss with leave to 

amend and orders granting motions without leave to amend.

4

 

1. See, e.g., Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on 

Ashcroft v. Iqbal, 85 Notre Dame L. Rev. 849, 878–79 (2010) (expressing concern that plaintiffs 

will be unable to survive the pleading stage and have access to discovery when the defendant has 

critical information, especially in civil rights cases); Arthur R. Miller, From Conley to Twombly

to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 14, 34 (2010) 

(Twombly and Iqbal may well have come at the expense of access to the courts and the ability of 

citizens to obtain adjudication of their claims’ merits).

2. Statistical Information on Motions to Dismiss re Twombly/Iqbal (Rev. 12/3/10), 

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/NOS-Motions Quarterly December_031611.pdf. These tables are discussed in William M. Janssen, Iqbal “Plausibility” in Pharmaceutical and Medical Device Litigation, 71 La. L. Rev. 541, 575 (2011).

3. In addition to Rule 12(b)(6) motions to dismiss, the tables include other Rule 12(b) motions

and Rule 12(c) motions. We are presently exploring the differences in the AO database and the 

databases developed for our study.

4. Kendall Hannon compared orders responding to motions to dismiss for failure to state a 

claim immediately before and soon after the Twombly decision. He found that such motions were 

more likely to be granted following Twombly in civil rights cases (41.7% prior to Twombly, 52.9% 

after Twombly), and that there was little change in other types of cases. See Kendall W. Hannon, 

Much Ado About Twombly, 83 Notre Dame L. Rev. 1811 (2008). This study did not distinguish 

between motions granted with leave to amend the complaint and those granted without leave to 

amend.
2 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

These four studies share two characteristics that limit their findings. First, each 

study was based on opinions appearing in the Westlaw database, which is likely to 

overrepresent orders granting motions to dismiss when compared with orders appearing on docket sheets.5 Second, each of these studies reviewed district court 

orders decided soon after the Supreme Court decisions and before interpretation 

of the decisions by the courts of appeals. The courts of appeals have since reversed a number of the early district court decisions6

 

Joseph Seiner has published two studies focusing on the outcome of motions to dismiss for 

failure to state a claim in civil rights litigation. His first study examined employment discrimination cases before and after Twombly and found increases in the rate at which motions were granted 

that did not reach levels of statistical significance. See Joseph A. Seiner, The Trouble With Twombly: A Proposed Pleading Standard for Employment Discrimination Cases, 2009 U. Ill. L. Rev.

1011, 1032. Seiner’s study of motions to dismiss was based on searches for cases appearing in the 

Westlaw database. Seiner’s second study examined motions in cases alleging discrimination under 

Title 1 of the Americans with Disabilities Act. Again, he found an increase in motions granted that 

did not meet standards of statistical significance. See Joseph A. Seiner, Pleading Disability, 51 

B.C. L. Rev. 95 (2010).

and have issued a growing 

Patricia Hatamyar examined orders responding to motions to dismiss for failure to state a 

claim two years before Twombly, two years after Twombly ̧ and immediately after Iqbal; she found 

an increase in motions granted (46% to 48% to 56%, respectively). The greatest increases were in 

motions granted with leave to amend. Orders granting motions in civil rights cases also increased 

during the three periods (50% to 53% to 58%, respectively, without distinguishing leave to 

amend). See Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 607 (2010). Hatamyar also presented a series of multinomial regression models that appear to confirm this increase over time in the rate at which motions are 

granted with leave to amend while controlling for pro se status, circuit, and type of case.

In addition to these four studies, there have been a number of empirical studies of motions to 

dismiss that are not directly related to an assessment of the effects of Twombly and Iqbal. Alexander Reinert examined cases from the 1990s in which grants of Rule 12(b)(6) motions have been 

reversed by the courts of appeals. Reinert regards such cases as similar to cases that would be dismissed and affirmed on appeal after Iqbal. He determined that after remand, these cases were as 

likely to succeed as all civil cases terminated during that period. See Alexander A. Reinert, The 

Costs of Heightened Pleading, 86 Ind. L.J. 119 (2011). The strength of this analysis rests on the 

assumption that cases with motions reversed on appeal are comparable to all civil cases, including 

those in which a motion to dismiss was never filed. Adam Pritchard and Hillary Sale have examined the effects of the Private Securities Litigation Reform Act on motions to dismiss. See generally Adam C. Pritchard & Hillary A. Sale, What Counts as Fraud? An Empirical Study of Motions to Dismiss Under the Private Securities Litigation Reform Act, 2 J. Empirical Legal Stud.

125, 128 (2005).

5. See Stephen B. Burbank, Vanishing Trials and Summary Judgment in Federal Civil Cases: 

Drifting Toward Bethlehem or Gomorrah? 1 J. Empirical Legal Stud. 591, 604 (2004) (asserting 

that reliance on published cases alone results in a distorted assessment of case activity); Brian N. 

Lizotte, Publish or Perish: The Electronic Availability of Summary Judgments by Eight District 

Courts, 2007 Wis. L. Rev. 107, 130 (reporting differences in published and unpublished orders 

granting summary judgment motions). A preliminary assessment found some evidence that orders 

granting motions to dismiss may be overrepresented in orders appearing in the Westlaw database.

Infra note 47.

6. See, e.g., Gonzalez v. Kay, 577 F.3d 600 (5th Cir. 2009) (reversing dismissal of claimed 

violation of the Fair Debt Collection Practices Act), cert. denied, 130 S. Ct. 1505 (2010); Siracusano v. Matrixx Initiatives, Inc., 585 F.3d 1167 (9th Cir. 2009) (reversing dismissal of complaint 

alleging violation of federal security laws), aff’d, ___ S. Ct. ___, No. 09-1156, 2011 WL 977060, 
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 3

body of case law that requires district courts to be cautious and context-specific in 

applying Twombly and Iqbal.

7 Both recent Supreme Court decisions8

 

at *12 (March 22, 2011); Braden v. Wal-Mart Stores, Inc., 588 F.3d 585 (8th Cir. 2009) (reversing 

dismissal of claim that defendants violated fiduciary duties imposed by the Employee Retirement 

Income Security Act (ERISA)); Sanchez v. Pereira-Castillo, 590 F.3d 31 (1st Cir. 2009) (reversing 

the dismissal of the Fourth Amendment claims by a prisoner against two correctional officers and 

a doctor); Swanson v. Citibank, N.A., 614 F.3d 400 (7th Cir. 2010) (reversing in part, finding that 

plaintiff stated a claim for racial discrimination); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104 

(2d Cir. 2010) (reversing in part, finding that plaintiff stated a claim for breach of contract and 

defamation); Speaker v. U.S. Dep’t of Health & Human Servs. Ctrs. for Disease Control & Prevention, 623 F.3d 1371 (11th Cir. 2010) (reversing dismissal of claims under the Privacy Act); 

West Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85 (3d Cir. 2010) (reversing dismissal 

of antitrust claims); Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) (reversing dismissal of pro se 

prisoner’s claims of violations under 42 U.S.C. § 1983). These cases and others are summarized in 

Memorandum from Andrea Kuperman to Civil Rules Comm. and Standing Rules Comm., Review 

of Case Law Applying Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal (December 15, 

2010), available at 

and emerging 

appellate case law may reassure those concerned about the impact of Twombly and 

Iqbal.

http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Iqbal_memo_ 

121510.pdf (last visited February 25, 2011). 

7. See Kuperman, supra note 6. 

8. See Skinner v. Switzer, ___ S. Ct. ___, No. 09-9000, 2011 WL 767703, at *6 (March 7, 

2011) (“Because this case was resolved on a motion to dismiss for failure to state a claim, the 

question below was ‘not whether [Skinner] will ultimately prevail’ on his procedural due process 

claim, but whether his complaint was sufficient to cross the federal court’s threshold, see Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S. Ct. 992, 152 L. Ed. 2d 1 (2002). Skinner’s 

complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of 

the Federal Rules of Civil Procedure generally requires only a plausible ‘short and plain’ statement 

of the plaintiff’s claim, not an exposition of his legal argument.” (alteration in original) (internal 

citations omitted)); see also Matrixx Initiatives, Inc. v. Siracusano, ___ S. Ct. ___, No. 09-1156, 

2011 WL 977060, at *12 (March 22, 2011) (unanimously affirming the circuit court’s reversal of 

dismissal at the pleadings stage of a securities fraud class action).

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 5

II. Methodology

This study examined motion activity in 2006 and 2010. Using these periods allows an assessment that neither anticipates the decision in Bell Atlantic Corp. v. 

Twombly nor responds to the decision in Ashcroft v. Iqbal in the absence of appellate court guidance. This study also assessed changes in orders using records of 

the federal district courts rather than opinions published in computerized legal 

reference systems. We used the courts’ CM/ECF codes indicating the filing of 

motions to dismiss and related orders to identify electronic documents with relevant motions and orders that were in PDF format and were linked to the civil case 

docket sheets. We then translated these documents into text format and searched 

electronically for terms that identified Rule 12(b)(6) motions and orders that respond to the merits of such motions.9

We selected the 23 federal district courts to be included in the study by identifying the 2 districts in each of the 11 circuits with the largest number of civil cases filed in 2009. We also included the U.S. District Court for the District of Columbia. On occasion we were unable to obtain access to some of the courts’ codes 

necessary to identify all of the relevant motions. In such cases, we chose the court 

in the circuit with the next greatest number of civil filings. These 23 district courts 

account for 51% of all federal civil cases filed during this period. 

This procedure is intended to be equivalent 

to identifying motions and orders through docket sheet entries and then reviewing 

documents linked to the docket entries. It provides a more complete assessment of 

motion activity than reliance on computerized legal reference systems.

Two data sets were developed using these methods. To assess changes in filing patterns, we identified those cases with motions to dismiss for failure to state 

a claim filed in the first 90 days from among all civil cases filed in the selected 

districts from October 2005 through June 2006, and October 2009 through June 

2010. To assess the changes in the outcomes of motions to dismiss for failure to 

state a claim, we identified orders responding to motions decided in January 

through June of 2006 and 2010. We coded these orders to identify the nature of 

the parties, whether the motion responded to an amended complaint, the presence 

of other Rule 12 motions, and judicial action taken in response to the motion. We 

indicated whether a motion was denied, was granted as to all relief requested by 

the motion, or was granted as to some but not all of the relief requested by the 

motion. These last two categories were often combined in the analyses and we 

simply noted that the motion was granted. In those instances in which the court 

granted at least some of the relief requested by the motion, we also coded whether 

the plaintiff was allowed to amend the complaint, and whether the motion eliminated only some claims or all claims of one or more plaintiffs.

 

9. We performed text searches using the following terms: “facts sufficient”; “sufficient facts”; 

“plausible claim”; “fails to state a claim”; “failed to state a claim”; and “failing to state a claim”.

We also searched for the phrase “12(b)(6)” with and without spaces separating the three elements 

of the phrase.
6 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

We excluded from these analyses all prisoner cases and cases with pro se parties.10

 

10. We excluded prisoner cases because of the distinctive characteristics and procedural requirements of such litigation, and because they were concentrated in only 4 of the 23 districts included in this study. We also excluded pro se cases, which are governed by standards other than 

Twombly and Iqbal. Pro se pleadings are to be liberally construed, “however inartfully pleaded.”

Hughes v. Rowe, 449 U.S. 5, 9 (1980). The Supreme Court reaffirmed this standard soon after the 

Twombly decision. See Erickson v. Pardus, 551 U.S. 89 (2007). We were also concerned that our 

method for identifying motions to dismiss for failure to state a claim based on text searches would 

miss motions saved as static images in PDF format, which we suspect may be more likely to appear in prisoner and pro se filings. See infra note 46. 

We also excluded motions responding to counterclaims and affirmative defenses from the analysis of judicial actions on motions. The methodology and 

coding standards used in this study are described in greater detail in Appendices B 

and C.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 7

III. Results

Our assessment of the effect of Twombly and Iqbal on the filing and outcome of 

motions to dismiss was complicated by many changes that affected civil litigation 

between 2006 and 2010 in addition to the Supreme Court decisions. In 2008, the 

economy experienced a marked downturn that affected the housing market in particular. This change, along with many others, resulted in a shift in the case mix 

over this period. There was a general increase in cases challenging mortgages and 

other forms of financial debt instruments. Individual courts also experienced 

changes in filing patterns: most courts showed an overall increase in case filings.

The courts in this study vary in size and contribute differently to the overall differences in activity from 2006 to 2010. We also found that the orders decided after Iqbal were different in nature from the orders decided before Twombly. Multiple motions to dismiss were resolved in 20% of the 2010 orders, down from 

26% of the 2006 orders.11 Previously amended complaints were considered in 

48% of the 2010 motions, up from 38% of the 2006 orders.12

 

11. The resolution of multiple motions to dismiss for failure to state a claim by a single order 

is difficult to interpret, since the motions themselves are highly variable. One motion may be filed 

by multiple defendants and directed at multiple claims by one or more plaintiffs. Multiple motions 

may be filed by a single defendant, or multiple defendants may file separate motions attacking the 

same claim. For these reasons, we placed little weight on the drop in orders resolving multiple 

motions in 2010, and coded all motions resolved by a single order as though they were a single 

motion. 

12. These differences achieved conventional levels of statistical significance (p ≤ 0.05). Plaintiffs are likely to amend a complaint soon after a substantive change in pleading standards. Courts 

may be more likely to dismiss without leave to amend when a complaint has been amended to take 

new standards into account. Both before Twombly and after Iqbal, the number of times a plaintiff 

has amended the complaint is a factor a court considers in deciding whether to dismiss with prejudice. See In re Vantive Corp. Sec. Litig., 283 F.3d 1079, 1098 (9th Cir. 2002) (“In this case, the 

plaintiffs had three opportunities to plead their best possible case. It was therefore not unreasonable for the district court to conclude that it would be pointless to give the plaintiffs yet another 

chance to amend.”), abrogation on other grounds recognized by South Ferry LP, No. 2 v. Killinger, 542 F.3d 776, 784 (9th Cir. 2008); Chudnovsky v. Leviton Mfg. Co., 158 F. App’x 312, 314 

(2d Cir. 2005) (“Chudnovsky already has had one opportunity to amend his complaint. Moreover, 

in his motion for leave to amend below, Chudnovsky did not indicate that he could allege additional facts that would cure the deficiencies in his already-amended complaint. Therefore the complaint should be dismissed with prejudice.”); Prasad v. City of New York, 370 F. App’x 163, 165 

(2d Cir. 2010) (finding that the district court acted within its discretion in denying leave to amend 

after the plaintiffs had already amended once); Mann v. Brenner, 375 F. App’x 232, 240 n.9 (3d 

Cir. 2010) (“Mann suggests that the District Court should have granted him leave to amend his 

complaint. Because Mann was permitted to do so twice before the present motions to dismiss were 

filed, we think the District Court was well within its discretion in finding that allowing Mann a 

fourth bite at the apple would be futile.”); Atkins v. City of Chicago, 631 F.3d 823, 832 (7th Cir. 

2011) (“The plaintiff’s lawyer has had four bites at the apple. Enough is enough.”); Destfino v. 

Reiswig, 630 F.3d 952, 958–59 (9th Cir. 2011) (“Plaintiffs had three bites at the apple, and the 

court acted well within its discretion in disallowing a fourth.”). In addition, a court’s action on a 

motion responding to an unamended complaint soon after a substantive change in pleading standards may not provide a reliable indication of how courts will respond in the future. For these reasons, our statistical models control for the presence of an amended complaint.
8 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

These factors can affect the filing and resolution of motions to dismiss for reasons that are unrelated to the Supreme Court decisions themselves. To assess the 

effects of the Supreme Court decisions apart from these other factors, we developed a series of statistical models, presented in Appendix A, that attempt to control for these unrelated factors and identify those effects that may properly be attributed to reactions to the Supreme Court decisions. In this section we first 

present the straightforward comparisons of motion practice in 2006 and 2010.

These comparisons reflect not only the effects of the Supreme Court decisions, 

but also changes in types of cases and the presence of an amended complaint. We 

then present the adjusted estimates of changes over time after controlling for factors unrelated to the Supreme Court decisions, as indicated by the statistical models in Appendix A. These later estimates offer the more accurate assessment of the 

federal district courts’ reactions to the Supreme Court decisions.

A. Filing Rates for Motions to Dismiss for Failure to State a Claim

Motions to dismiss for failure to state a claim were more common in cases filed in 

late 2009 and 2010, after Iqbal, than in cases filed in late 2005 and 2006, before 

Twombly.13 We identified motions filed within the first 90 days in cases either 

filed originally in federal court or removed from state court during the two ninemonth periods ending in June 2006 and June 2010.14 As indicated in Table 1, motions to dismiss for failure to state a claim were filed in 6.2% of all cases in 2009–

2010, an increase of 2.2 percentage points over the filing rate for such motions in 

cases in 2005–2006.15 This increase is especially notable in cases challenging financial instruments, which increased by more than five percentage points.16

In civil rights cases other than employment discrimination cases, the likelihood of a motion to dismiss increased 0.4% from 2005–2006 to 2009–2010. This 

increase did not reach conventional levels of statistical significance. Three-fourths 

of the cases in the civil rights category were designated on the cover sheet as 

 

13. Our unit of analysis for this study of filing rates is an individual case. The figures resulting 

from our analysis understate the overall likelihood of motions to dismiss, since multiple motions 

may have been filed during this period and motions may be filed after the 90-day cutoff used in 

this study, often in response to amended complaints. We were limited to considering those motions filed within the first 90 days by our data collection timetable, which ended 90 days after the 

last case was filed on June 30, 2010. No meaningful differences were found in the length of time 

that elapsed from the filing of the case to filing of the motion to dismiss within the first 90 days; in 

2009–2010, such motions were filed on average 40 days after the cases were filed or removed 

from state court, 2 days less than in 2005–2006.

14. This restriction excluded cases remanded from the courts of appeals, cases reopened or 

transferred from another district, and cases consolidated within the district as part of a multidistrict 

litigation proceeding. This restriction applied only to the study of motion filing rates. 

15. Unless otherwise noted, the effects mentioned in this discussion are statistically significant at less than the 0.05 level using a two-tailed Goodman and Kruskal tau-b directional test with 

judicial action taken on the motion or motions as the dependent variable.

16. As indicated in Table 1, total case filings in these districts increased by 3,482 cases in 

2010, and filings of financial instrument cases alone increased by 3,266 cases. Filings of contract 

cases also increased during this period, while filings of torts cases, civil rights cases, and “other” 

cases decreased. Filings of employment discrimination cases remained about the same.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 9

“Other Civil Rights.” We know from past research that many of these cases are 

brought under 28 U.S.C. § 1983, alleging constitutional violations. This narrower 

category of “Other Civil Rights” cases showed a statistically significant increase 

in the likelihood that a motion to dismiss for failure to state a claim would be 

filed, up from 10.5% of cases in 2006 to 12.4% of cases in 2010.17

The “Other” category includes the greatest number of cases. It combines a 

wide range of cases, typically based on statutory causes of action. Employee Retirement Income Security Act (ERISA) cases constitute 20% of the cases in this 

category. Other common types of cases include Social Security cases (14%), Fair 

Labor Standards Act cases (8%), trademark cases (6%), and copyright cases (6%).

The remaining cases are scattered across a wide range of statutory actions.18

Table 1: Percentage of Civil Cases with a Motion to Dismiss for Failure to State a 

Claim Filed Within 90 Days of the Filing of the Case (Excluding Prisoner and Pro 

Se Cases)

2005–2006

Percentage (and 

Number) of Cases

2009–2010

Percentage (and 

Number) of Cases Difference

Total 4.0% (49,443) 6.2% (52,925) +2.2%*

Contract 5.6% (8,651) 8.3% (9,139) +2.7%*

Torts 2.3% (10,604) 4.1% (9,947) +1.8%*

Employment Discrimination 6.9% (3,795) 9.0% (3,871) +2.1%*

Civil Rights 9.7% (4,214) 10.1% (4,976) +0.4%

Financial Instrument 4.3% (1,524) 9.6% (4,790) +5.3%*

Other 2.5% (20,657) 4.1% (20,202) +1.6%*

*p < 0.01.

Table 2 presents the adjusted estimates of changes in filing rates. The multivariate statistical models presented in Appendix A confirm an increase in the rate at 

which Rule 12(b)(6) motions were filed while controlling for overall differences 

 

17. This difference just meets the conventional level of statistical significance (p ≤ 0.05). Other types of cases in the civil rights category included cases brought under the Americans with Disabilities Act designated as “other” (14%) or designated as “employment” (7%). The remaining 

cases raised civil rights issues concerning accommodations (3.5%), voting (0.6%), and welfare 

(0.2%). None of these separate types of civil rights cases showed a statistically significant increase 

in filing rate from 2006 to 2010.

18. Another 14% of these cases were designated as “Other Statutory Action.” No other specific case type constituted more than 5% of this category. A complete listing of case types that this 

category comprises is presented in Appendix B.
10 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

in filing rates across federal districts and across types of cases.19 These adjusted 

estimates indicate that the probability of a motion to dismiss being filed in an individual case increased from a baseline of 2.9% of the cases in 2006 to 5.8% of 

the cases in 2010.20

Table 2: Adjusted Estimates of the Likelihood that a Motion to Dismiss for Failure 

to State a Claim Will Be Filed Within the First 90 Days

The table also shows a wide range of probabilities across 

types of cases.

Type of Case 2006 2010

Torts

Contract

Civil Rights

Other

Financial Instrument

Employment Discrimination

0.029

0.071

0.117

0.029a

0.053

0.077

0.058

0.101

0.127

0.046

0.104

0.101

a. Estimated as the base rate in the absence of a significant effect for type of case.

Confirmation of the increase in the rate at which motions were filed is also 

evident in the monthly trend in the percentage of cases with such motions. As indicated in Figure 1, the percentage of cases with one or more motions to dismiss 

for failure to state a claim was higher in each month of 2009–2010 than in each 

month of 2005–2006. Moreover, in 2009–2010 there appeared to be a modest increase over time in the percentage of cases with such motions. The trend line for 

the percentage of cases in 2005–2006 with motions to dismiss was flat over time 

at just under 4%.21

 

19. The results in Table 2 are based on the statistical model presented in Table A-1 in Appendix A. This model shows considerable variations in filing rates across federal district courts, controlling for year and type of case.

20. The baseline serves as an initial reference point for assessing changes over time and 

across types of cases in these statistical models. The baseline is distinct from the percentages listed 

in Table 1. This particular model uses as a baseline the likelihood that a motion is filed in a tort 

case in the District of Rhode Island, the Eastern District of Michigan, or the District of Maryland 

in 2006 (i.e., 2.9%). We chose torts cases for the baseline because of the low likelihood of a motion to dismiss. We chose to combine these three districts because they had few motions to dismiss. We chose 2006 so that increases over time would appear as a positive effect. The baseline 

rate was substituted for effect estimates where the model indicated that the case type did not depart 

from that rate. The adjusted estimate for torts cases in Table 2, which takes district and the presence of an amended complaint into account, shows an increase from 2.9% in 2006 to 5.8% in 

2010. The effect of the statistical adjustment can be seen by comparing these figures with the unadjusted estimate for torts cases in Table 1, which shows an increase from 4.0% in 2006 to 6.2%

in 2010.

21. These filing rates are lower than rates indicated by previous studies of federal courts that 

considered motions to dismiss filed after the 90-day period used in this study. See Paul Connolly 

& Patricia Lombard, Judicial Controls and the Civil Litigative Process: Motions (Federal Judicial 

Center 1980) (finding that around 15% of civil cases terminated in 1975 included motions to dis-
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 11

Figure 1. Trend in Cases Filed with Motions to Dismiss Filed Within 90 Days

Motions to dismiss were more likely to be filed in cases removed from state 

court to federal court. As indicated in Table 3, motions to dismiss were more 

common in cases removed from state courts than in cases originally filed in federal courts both before Twombly and after Iqbal. This difference was greater in cases filed in 2009–2010 than in cases filed in 2005–2006. But a supplemental analysis of removal rates from January 2005 through December 2009 found no increase 

in rates of removal to federal courts in states with notice pleading standards in 

comparison with rates of removal in states using fact pleading.22

Table 3: Cases with Motions to Dismiss for Failure to State a Claim in Original and 

Removed Filings

2005–2006 2009–2010 Difference

Original Filing 3.4% (41,698) 5.0% (44,298) +1.6%*

Removed Filing 7.2% (7,745) 12.4% (8,627) +5.2%*

* p < 0.01.

 

miss for failure to state a claim); Thomas E. Willging, Use of Rule 12(b)(6) in Two Federal District Courts 8 (Federal Judicial Center 1989) (finding that around 13% of the cases terminated in 

two federal districts courts included motions to dismiss for failure to state a claim).

22. We have no way of determining if cases that would have been filed in the federal courts 

before Twombly have been diverted to state courts because of concern over pleading standards. 

However, a supplemental study failed to find evidence of an increased rate of removal of cases to 

federal court after Twombly and Iqbal from states with notice pleading standards, compared with 

the rate of removal from states with fact pleading standards. Memorandum from Jill Curry and 

Matthew Ward to James Eaglin, Comparing Rates by States: Are Twombly and Iqbal Affecting 

Where Plaintiffs File? (February 14, 2011) (on file with the authors).

.0%

1.0%

2.0%

3.0%

4.0%

5.0%

6.0%

7.0%

8.0%

Oct. Nov. Dec. Jan. Feb. Mar. Apr. May June

2005-2006

2009-2010
12 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Finally, we note the distinctive nature and marked changes over time in cases 

challenging financial instruments. The “financial instrument” category of cases 

combines nature-of-suit codes indicating case categories for negotiable instruments, foreclosure, truth in lending, consumer credit, and “other real property.”

The great majority of these cases involve claims by individuals suing lenders 

and/or loan servicing companies over the terms of either an initial residential 

mortgage or a refinance of an existing residential mortgage. These cases include 

federal claims under statutes such as the Truth in Lending Act, the Real Estate 

Settlement Procedures Act, and the Fair Debt Collection Practices Act. These cases typically also raise a number of state law claims, often including fraud, negligence, unfair business practices, breach of fiduciary duty, and wrongful foreclosure. Plaintiffs generally seek rescission of the mortgage or loan, damages, and 

declaratory or injunctive relief.

Cases challenging financial instruments increased by 214%, from 1,524 cases 

in 2006 to 4,790 cases in 2010, apparently due in large part to the economic 

downturn in the housing market.23

B. Outcome of Motions to Dismiss for Failure to State a Claim

Such cases were especially likely to be removed from state court, increasing from 12% of all such cases in 2006 to 16% in 

2010. Those cases that were removed from state court showed an increase in the 

percentage of cases with motions to dismiss, rising from 9.1% of such cases in 

2005–2006 to 27.7% of such cases in 2009–2010, the largest increase in filing 

rates detected.

1. Motions Granted with Leave to Amend

We assessed the outcome of motions to dismiss for failure to state a claim by 

identifying and coding court orders responding to the merits of such motions filed 

in January through June of 2006 and 2010 in the same 23 federal district courts.24

We recorded whether an order denied the motion to dismiss in its entirety, granted

all of the relief requested by the motion, or granted some but not all relief requested by the motion.

25

 

23. This downturn was especially sharp in some of the districts included in this study, such as 

districts in California, Florida, Georgia, Illinois, and Michigan, which are among the top 10 states 

with the highest number of residential mortgage foreclosures. See

A single order resolving motions to dismiss filed by difhttp://www.statehealthfacts.org/

comparetable.jsp?cat=1&ind=649 (last visited February 22, 2010).

24. Ideally, the database of motions that was discussed in the previous section would have 

been followed over time through the motions’ resolution. Time constraints did not permit an adequate opportunity to obtain the orders resolving those motions. This second database of orders was 

developed instead.

25. The unit of analysis for our study of outcomes of motions is a written judicial opinion or 

order disposing of the merits of at least one motion to dismiss for failure to state a claim under 

Federal Rule of Civil Procedure 12(b)(6). Of course, a single motion to dismiss may be directed at 

multiple claims, and an order may resolve multiple motions. Coding conventions for multiple motions and motions in which only some of the relief was granted are discussed in Appendix C. In 

addition to excluding pro se cases and prisoner cases, for this analysis we excluded motions to 

dismiss for failure to state a claim filed in response to counterclaims and affirmative defenses. We 

implemented this limitation by excluding the 70 orders responding to motions filed by a party other than a defendant or directed toward claims raised by a party other than the plaintiff. Scholars are 
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 13

ferent parties was coded as resolving a single motion. If the court allowed 

amendment of the complaint with regard to at least one claim that was dismissed, 

we coded the motion as granted with leave to amend.

As indicated in Table 4, it first appears that motions to dismiss for failure to 

state a claim were more likely to grant all or some of the relief requested in 2010 

than in 2006. In 2010, 75% of the orders responding to such motions granted all 

or some of the relief requested by the motion, compared with almost 66% of the

orders in 2006.26

As indicated above, it would be misleading to attribute this overall change only to the Supreme Court decisions. The rate at which motions were granted differs 

by type of case, and the mix of types of cases changed from 2006 to 2010. For

example, cases challenging financial instruments were far more common in 2010,

and motions to dismiss in such cases were more likely to be granted. The rate at 

which motions were granted also varied by district court, and some of the districts 

with the highest grant rates were also the districts that showed the greatest increase in the number of orders. Orders in 2010 were also more likely to respond to 

motions directed toward amended complaints. Courts are generally more willing 

to grant motions to dismiss after a plaintiff has already amended the complaint.

All of these factors may contribute to differences over time that are unrelated to 

the Supreme Court decisions.

But closer inspection reveals that the increase extends only to 

motions granted with leave to amend. No increase was found in motions granted 

without leave to amend.

An important reason for caution in interpreting these differences is that in 

2010, orders granting motions to dismiss were far more likely to allow the plaintiff to amend the complaint, leaving open the possibility that the plaintiff might

cure the defect in the complaint and the case might proceed to discovery. In 2010, 

35% of the orders granted motions to dismiss with leave to amend at least some of 

the claims in the complaint, compared with 21% of the orders in 2006.27

 

only beginning to consider the effect of Twombly and Iqbal in such circumstances. See, e.g., Melanie A. Goff & Richard A. Bales, A “Plausible” Defense: Applying Twombly and Iqbal to Affirmative Defenses, 34 Am. J. Trial Advoc. ___ (forthcoming Spring 2011); Joseph A. Seiner,

Twombly, Iqbal, and the Affirmative Defense, available at

The percentage of orders granting the motion without an opportunity to amend the complaint declined in 2010 in all types of cases other than those challenging financial 

instruments. This shift toward an increase in grants with an opportunity to amend 

and a decrease in grants with no opportunity to amend suggests that these two 

outcomes should be assessed separately.

http://ssrn. com/abstract=1721062 (last 

visited February 8, 2011). 

26. This increase was due primarily to orders granting all relief sought by the motion, which 

increased from 36% of the orders in 2006 to 46% of the orders in 2010. Orders granting motions 

with regard to only part of the relief sought remained stable over time, constituting 30% of the 

orders in 2006 and 29% of the orders in 2010. Differences in the rates at which motions were denied were not entered into the table, but are the inverse of the rates at which motions were granted.

27. The increase in opportunity to amend complaints was almost entirely in orders granting all 

the relief requested by the motion (i.e., 19% in 2010 vs. 9% in 2006). This increase is especially 

notable, since, as indicated above, in 2010 the orders were more likely to respond to previously 

amended complaints.
14 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Table 4: Outcome of Motions to Dismiss for Failure to State a Claim

Action on Motion 2006

No. of 

Orders 2010

No. of 

Orders Difference

Total Denied 34.1% (239) 25.0% (305)

Granted All or Some Relief 65.9% (461) 75.0% (916) +9.1%*

With Amendment 20.9% (146) 35.3% (431) +14.4%†

Without Amendment 45.0% (315) 39.7% (485) -5.3%

Contract Denied 35.1% (65) 33.6% (81)

Granted All or Some Relief 64.9% (120) 66.4% (160) +1.5%

With Amendment 21.1% (39) 30.3% (73) +9.2%†

Without Amendment 43.8% (81) 36.1% (87) -7.7%

Torts Denied 30.0% (21) 28.2% (31)

Granted All or Some Relief 70.0% (49) 71.8% (79) +1.8%

With Amendment 21.4% (15) 29.1% (32) +7.7%

Without Amendment 48.6% (34) 42.7% (47) -5.9%

Civil Denied 27.9% (51) 22.0% (51)

Rights Granted All or Some Relief 70.3% (121) 78.0% (181) +7.7%

With Amendment 21.1% (38) 32.8% (76) +11.7%

Without Amendment 48.3% (83) 45.3% (105) -3.0%

Employment Denied 32.6% (31) 29.4% (35)

Discrimination Granted All or Some Relief 67.4% (64) 70.6% (84) +3.2%

With Amendment 17.9% (17) 23.5% (28) +5.6%

Without Amendment 49.5% (47) 47.1% (56) -2.4%

Financial Denied 52.9% (9) 8.1% (19)

Instruments Granted All or Some Relief 47.1% (8) 91.9% (216) +44.8%*

With Amendment 24.4% (5) 54.9% (129) +30.5%

Without Amendment 17.6% (3) 37.0% (87) +19.4%

Other Denied 38.5% (62) 31.0% (88)

Granted All or Some Relief 61.5% (99) 69.0% (196) +7.5%

With Amendment 19.9% (32) 32.7% (93) +12.8%†

Without Amendment 41.6% (67) 36.3% (103) -5.3%

* p ≤ 0.01, relative to the likelihood that the motion will be denied.

† p ≤ 0.05, relative to the likelihood that the motion will be granted without leave to amend.

Motions granted with leave to amend leave open the questions whether the 

complaints were, in fact, amended; whether there were subsequent motions to 

dismiss; whether action was taken in response to the subsequent motions; and the

extent to which these cases proceeded to discovery. We are presently undertaking 

a supplemental study to answer these questions.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 15

Table 5 presents statistical estimates for the probability that Rule 12(b)(6) motions to dismiss would be granted in an individual case while controlling for factors unrelated to the Supreme Court decisions.28 The baseline indicates that 

around 56% of the motions would be granted without leave to amend the complaint in torts cases in 2006 in the baseline districts.

29 The table lists only those 

districts in which the rate at which motions were granted, with or without the opportunity to amend the complaint, show a statistically significant difference from 

the baseline districts, as indicated in Table A-2 in Appendix A. Marked differences in grant rates and the opportunity to amend the complaint were found across 

the individual courts. Such motions were more likely to be granted with leave to 

amend in the Eastern and Northern Districts of California, and granted without 

leave to amend in the Eastern and Southern Districts of New York.30

Table 5: Estimated Values for Statistically Significant Variables in Multinomial 

Model Describing Whether a Motion Would Be Granted With or Without an 

Opportunity to Amend the Complaint

Variable Deny

Grant and 

Amend

Grant and No 

Amend

Baseline 0.298 0.145 0.557

Districts

Eastern District of California 0.149 0.613 0.238

Northern District of California 0.158 0.614 0.229

Middle District of Florida 0.358 0.449 0.193

Northern District of Illinois 0.409 0.266 0.324

Eastern District of New York 0.211 0.289 0.500

Southern District of New York 0.183 0.280 0.537

Eastern District of Pennsylvania 0.404 0.227 0.369

Northern District of Texas 0.461 0.254 0.285

Presence of Amended Complaint 0.244 0.115 0.641

Financial Instrument Cases in 2010 0.040 0.068 0.892

 

28. As indicated in Appendix A, we used multinomial logit and probit models to assess 

changes over time in the likelihood that motions to dismiss would be denied, granted with leave to 

amend, or granted without leave to amend. These models also allowed us to control for the differences across individual courts, for differences across types of cases, and for the presence of an 

amended complaint. Using the techniques described in the appendix, we then computed the adjusted estimates of effects presented in the table.

29. The baseline for the model is the outcome of an order deciding one or more Rule 12(b)(6) 

motions to dismiss filed in the District of Rhode Island, the Eastern District of Michigan, or the 

District of Maryland in 2006 in a tort case, responding to an unamended complaint.

30. The Eastern and Southern Districts of New York also had very low filing rates for motions 

to dismiss. A number of judges in these districts have procedures calling for premotion conferences at which the judges discuss with attorneys whether a motion will be appropriate.
16 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Some of the significant differences over time indicated in Table 4 can be accounted for by controlling for differences across districts and the presence of an 

amended complaint. As shown in the last line of Table 5, we found that only in 

cases challenging financial instruments did the adjusted rate at which motions 

were granted without leave to amend increase in 2010. In such cases, the adjusted 

estimate indicates 90% of the motions were granted with regard to at least some 

of the relief requested, controlling for the effects of the other variables. We found 

no other significant increase over time in other types of cases in the adjusted rate 

at which motions were granted.31

The fact that cases with motions to dismiss granted with leave to amend remain unresolved is also reflected in the absence of a statistically significant increase in 2010 in the rate at which such cases terminated. We examined the percentage of cases that terminated after 30 days, 60 days, or 90 days following an 

order granting all or some of the relief requested by the motion to dismiss. Such 

orders may not address all of the claims in the litigation. Nevertheless, if the district courts were interpreting Twombly and Iqbal to significantly foreclose the opportunity for further litigation in the case, we would expect to see an increase in 

cases terminated soon after the order. However, as indicated in Table 6, we found 

no statistically significant increase in 2010 in the percentage of cases terminated

in 30 days, 60 days, or 90 days after the order granting the motion. Nor did we 

find differences in termination rates across individual types of cases.

Table 6: Percentage of Cases Terminated 30, 60, and 90 Days After an Order 

Granting All or Some of the Relief Requested by a Motion to Dismiss 

Percentage of Cases Terminated

After: 2006 2010

30 days 26.6% 27.5%

60 days 30.6% 33.1%

90 days 34.2% 37.7%

Total orders 448 orders 897 orders

 

31. We also found that the presence of an amended complaint increased the likelihood that a 

motion would be granted without leave to amend. The details of the analysis are presented in Appendix A. Such an effect existed both before Twombly and after Iqbal. See supra note 12.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 17

2. Motions Granted on All Claims Asserted by One or More Plaintiffs

Although we found no broad increase over time in the likelihood that a motion to 

dismiss would be granted without leave to amend, we also explored the possibility 

that, when granted, motions to dismiss may be more likely to exclude all claims 

by one or more plaintiffs, even if the litigation continues with claims by other 

plaintiffs.32 As indicated in Table 7, in 2010, approximately 31% of the orders 

granting motions to dismiss appeared to eliminate all claims by one or more plaintiffs from the litigation, compared with approximately 23% of such orders in 

2006.33

 

32. There was also a greater opportunity in 2010 to amend the complaint after the motion to 

dismiss was granted as to all claims by one or more plaintiffs (22% in 2006; 46% in 2010). We 

initially attempted to determine if the grant of a motion to dismiss had the effect of removing a 

defendant from the litigation, thereby limiting the opportunity for further discovery of that defendant under the standards of Rule 26. However, we had difficulty developing a reliable coding 

practice, especially in cases with multiple plaintiffs and defendants. Instead, we decided to focus 

on the effect of the motion on the ability of plaintiffs to continue in the litigation, which proved 

easier to study.

The rate at which the grant of motions to dismiss eliminated some claims, 

but not all, by one or more plaintiffs increased by only one percentage point during this period. Of course, these figures include the effects of factors unrelated to 

the Supreme Court cases, such as differences across district courts, differences 

across types of cases, and differences in the presence of an amended complaint.

33. These figures include the effects of orders granted both with and without leave to amend 

the complaint. If the financial instrument cases are removed from the analysis, orders granting 

motions to dismiss that eliminate all claims by one or more plaintiffs increase to 28% in 2010. 

Unfortunately, we cannot determine what percentage of this increase is due to cases that involved 

only one plaintiff, thereby ending the case. Determining that a grant of a motion to dismiss for 

failure to state a claim excluded all claims by a plaintiff can be a difficult task. A plaintiff may 

have raised claims that were not challenged by the motion to dismiss and therefore not addressed 

by the order. Since our knowledge of the cases is limited to the single order that was included in 

the study, we must make a series of assumptions when determining that a grant of a motion to 

dismiss for failure to state a claim excludes all claims. Unless otherwise indicated in the order, we 

assumed that the motion to dismiss addressed all claims by a plaintiff, and that granting a motion 

as to all claims by a plaintiff would terminate the plaintiff’s role in the litigation unless the plaintiff was permitted to amend the complaint. As a result, our analysis may overestimate the number 

of cases in which an order eliminates all claims by a plaintiff.
18 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Table 7: Extent of Exclusion of Plaintiff Claims

Action on Motion 2006

No. of 

Orders 2010

No. of 

Orders Difference

Total Denied 34.1% (239) 25.0% (305)

Granted All or Some Relief 65.9% (461) 75.0% (916) +9.2%*

Some Claims 43.3% (303) 44.5% (543) +1.2%

All Claims 22.6% (158) 30.5% (373) +8.0%†

Contract Denied 35.1% (65) 33.6% (81)

Granted All or Some Relief 64.9% (120) 66.4% (160) +1.5%

Some Claims 44.3% (82) 40.7% (98) -3.7%

All Claims 20.5% (38) 25.7% (62) +5.2%

Torts Denied 30.0% (21) 28.2% (31)

Granted All or Some Relief 70.0% (49) 71.8% (79) +1.8%

Some Claims 50.0% (35) 47.3% (52) -2.7%

All Claims 20.0% (14) 24.5% (27) +4.5%

Civil Denied 27.9% (51) 22.0% (51)

Rights Granted All or Some Relief 70.3% (121) 78.0% (181) +6.2%

Some Claims 44.2% (69) 46.4% (111) +2.2%

All Claims 25.1% (52) 29.1% (70) +4.0%

Employment Denied 32.6% (31) 29.4% (35)

Discrimination Granted All or Some Relief 67.4% (64) 70.6% (84) +3.2%

Some Claims 51.6% (49) 43.7% (52) -7.9%

All Claims 15.8% (15) 26.9% (32) +11.1%

Financial Denied 52.9% (9) 8.1% (19)

Instruments Granted All or Some Relief 47.1% (8) 91.9% (216) +44.9%*

Some Claims 29.4% (5) 48.5% (114) +19.1%

All Claims 17.6% (3) 43.4% (102) +25.8%

Other Denied 38.5% (62) 31.0% (88)

Granted All or Some Relief 61.5% (99) 69.0% (196) +7.5%

Some Claims 39.1% (63) 40.8% (116) +1.7%

All Claims 22.4% (36) 28.2% (80) +5.8%

* p ≤ 0.01, relative to the likelihood that the motion will be denied.

† p ≤ 0.05, relative to the likelihood that the motion will be granted without leave to amend.

Table 8 presents statistical estimates for the rates at which granted motions 

dismiss some claims or all claims by a plaintiff (with or without leave to amend), 

while controlling for factors unrelated to the Supreme Court decisions. As indicated in Appendix B, we again used a similar multinomial probit model to control 

for other factors while assessing differences in the likelihood that motions to dismiss would be denied, granted to eliminate one or more plaintiffs/respondents 
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 19

from the litigation,34

After using the multinomial probit model to control for differences across districts, types of case, and the presence of an amended complaint, we found that in 

2010, only orders responding to motions in cases challenging financial instruments were more likely to be granted, both with respect to all claims by at least 

one plaintiff and with respect to only some claims, all else being equal. No statistically significant increase in the likelihood that motions would be granted was 

found for other types of cases. These results are consistent with the results in Table 7. There are differences across federal districts: the Northern and Eastern Districts of California were more likely to grant motions with regard to some claims, 

and the Southern District of New York was more likely to grant motions with regard to all claims by at least one plaintiff. Finally, responding to an amended 

complaint increased the likelihood of granting a motion with respect to some 

claims only, relative to those motions not based on an amended complaint.

or granted to eliminate only some claims while leaving all of 

the plaintiffs to pursue the remaining claims.

Table 8: Estimated Values for Statistically Significant Variables in Multinomial 

Model of Whether a Motion Would Be Granted with Regard to Some or All

Claims by At Least One Plaintiff 

Variable Deny

Grant as to 

Some Claims

Grant as to All 

Claims by at Least 

One Plaintiff

Baseline 0.289 0.400 0.311

Districts

Eastern District of Arkansas 0.435 0.439 0.126

Eastern District of California 0.162 0.539 0.299

Northern District of California 0.171 0.494 0.335

Middle District of Florida 0.377 0.409 0.214

Southern District of New York 0.178 0.329 0.493

Eastern District of Pennsylvania 0.404 0.420 0.175

District of South Carolina 0.489 0.351 0.160

Northern District of Texas 0.464 0.343 0.193

Presence of Amended Complaint 0.246 0.493 0.261

Financial Instrument Cases in 2010 0.052 0.496 0.451

 

34. Such orders indicated that all claims raised by one or more plaintiffs were dismissed. We 

interpret this as dismissing all claims by the plaintiffs, but it is possible that the plaintiffs raised 

other claims that were not the subject of the motion to dismiss.

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 21

IV. Discussion and Conclusion

Assessing changes in the outcomes of motions that are attributable to Twombly 

and Iqbal is complicated. A thorough assessment must consider those cases that 

do not appear in computerized legal reference systems, since such databases may 

underrepresent cases in which motions have been denied. It is also necessary to 

take into account increases in case filings and changes in types of cases, which 

may vary across the federal district courts. Civil case filings themselves increased

in the 23 federal district courts examined in this study by 7% in the past four 

years; more motions will be reported even without changes in motion practice.

Changes in the case mix affect the types, numbers, and likely outcomes of motions to dismiss.

The data show a general increase in the rate at which motions to dismiss for 

failure to state a claim were filed in the first 90 days of the case. We found that 

motions were more likely to be filed across a wide range of case types, though the 

size of the increase depended on the type of case. We found the largest increase in 

filing rates of motions to dismiss in cases challenging financial instruments, such 

as mortgages and other loan documents. Such cases were rare in 2006, and this 

increase is most likely related to changes in the housing market and the increasing 

rate of foreclosure actions. We found no increase in filing rates over time in civil 

rights cases.

After controlling for identifiable effects unrelated to the Supreme Court decisions, such as differences in caseload across individual districts, we found a statistically significant increase in the rate at which motions to dismiss for failure to 

state a claim were granted only in cases challenging financial instruments. More 

specifically, we found an increase in this category of cases in motions to dismiss 

granted without leave to amend. We found no increase in the rate at which motions to dismiss were granted, with or without opportunity to amend, in other 

types of cases. We also found no increase in the rate at which motions to dismiss 

for failure to state a claim eliminated plaintiffs in other types of cases.

Again, the rise of cases challenging financial instruments and the increase in 

the rate at which motions were filed and granted in such cases appear to be due to 

changing economic conditions involving the housing market and are unrelated to 

the recent Supreme Court decisions. The prevalence of motions to dismiss in such 

cases and the high rate at which such motions are granted is often due to a failure 

to meet the pleading requirements established by federal statutes, not a failure to 

plead sufficient facts.35

 

35. Courts in every circuit have dismissed homeowners’ claims under the Truth in Lending 

Act (TILA), 15 U.S.C. § 1691 et seq., and the Real Estate Settlement Procedures Act (RESPA), 12 

U.S.C. § 2601, under Rule 12(b)(6) for various reasons unrelated to Twombly and Iqbal. See, e.g.,

Jones v. ABN Amro Mortg. Grp., 606 F.3d 119, 125 (3d Cir. 2010) (affirming 12(b)(6) dismissal 

of a RESPA claim because the defendant was not subject to RESPA); Taggart v. Chase Bank 

USA, N.A., 375 F. App’x 266, 268–69 (3d Cir. 2010) (affirming dismissal of a TILA claim on res 

judicata grounds after a 12(b)(6) dismissal on limitations grounds in a previous case filed by the 

plaintiff); Heil v. Wells Fargo Bank, N.A., 298 F. App’x 703, 705–07 (10th Cir. 2008) (affirming 

dismissal of TILA claims on limitations grounds); Frazile v. EMC Mortg. Corp., 382 F. App’x 

If such cases had existed in 2006, it is likely that such mo-
22 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

tions would have been filed and granted in such cases at rates similar to those in 

2010.

We also found that motions were more likely to be granted without leave to 

amend when they were directed at an amended complaint. This was true both before and after the Supreme Court decisions. This finding is unsurprising; courts 

take earlier amendments into account in deciding motions to dismiss. Motions directed to amended complaints were more common in 2010 than in 2006. 

Even if the rate at which motions are granted remains unchanged over time, 

the total number of cases with motions granted may still increase. The 7% increase in case filings combined with the increase in the rate at which motions are 

filed in 2010 may result in more cases in recent years with motions granted, even 

though the rate at which motions are granted has remained the same. Such cases 

are especially likely to find their way into computerized legal reference systems 

and published reports, resulting in the impression that the rate at which motions 

are granted is increasing. But these increases can be largely a result of increases in 

filing rates for cases and motions, and not due to an increase in the rate at which 

courts are granting motions after Twombly and Iqbal.

This study has several limitations worth noting. Most important, our study did 

not examine the substantive law that formed the basis of the court orders resolving the motions. This study must be interpreted in the context of ongoing development of the case law in both the Supreme Court and the lower courts.36

This study did not take into account changes in pleading practice. Survey data 

indicate that plaintiffs may be including more factual allegations in their com-

 

833, 838–39 (11th Cir. 2010) (approving 12(b)(6) dismissal of some, but not all, TILA claims on 

limitations grounds); Wienke v. Indymac Bank FSB, No. CV 10-4082, 2011 WL 871749, at *7–8 

(N.D. Cal. Mar. 14, 2011); Franz v. BAC Home Loans Servicing, LP, Civ. No. 10-2025, 2011 WL 

846835, at *2–4 (D. Minn. Mar. 8, 2011) (dismissing under 12(b)(6) because the RESPA defendant was not a “servicer” under the Act, because the finance charges complied with TILA, and 

because TILA does not allow offensive assertion of a recoupment claim); Gordon v. Home Lone 

Ctr., LLC, No. 10-10508, 2011 WL 795037, at *3 (E.D. Mich. Feb. 28, 2011); Koehler v. Wells 

Fargo Bank, No. 10-1903, 2011 WL 691583, at *2 (D. Md. Feb. 18, 2011) (dismissing TILA and 

RESPA claims on limitations grounds); Davis v. GMAC Mortg., LLC, No. H-11-09, 2011 WL 

677359, at *3 (S.D. Tex. Feb. 16, 2011) (dismissing a TILA claim based on limitations); Obi v. 

Chase Home Fin., LLC, No. 10 C. 5747, 2011 WL 529481, at *3–4 (N.D. Ill. Feb. 8, 2011); Cebrun v. HSBC Bank USA, N.A., No. C10-5742BHS, 2011 WL 321992, at *2 (W.D. Wash. Feb. 2, 

2011) (dismissing RESPA claim because the defendant was the trustee, not the servicer); Morris v. 

Bank of Am., No. C 09-02849 SBA, 2011 WL 250325, at *5 (N.D. Cal. Jan. 26, 2011) (dismissing 

RESPA claim because the allegations showed that the defendant timely responded to the plaintiff’s qualified written letter); Mantz v. Wells Fargo Bank, N.A., Civ. A. No. 09-12010-JLT, 2011 

WL 196915, at *3–4 (D. Mass. Jan. 19, 2011); Wheatley v. Reconstruct Co. NA, No. 

3:10CV00242 JLH, 2010 WL 4916372, at *4 (E.D. Ark. Nov. 23, 2010) (dismissing TILA claims 

on limitations grounds and dismissing a RESPA claim because the defendant was not subject to 

the Act); Hughes v. Abell, __ F. Supp. 2d __, 2010 WL 4630227, at *10–11 (D.D.C. 2010) (dismissing TILA claims on limitations grounds); Done v. HSBC Bank USA, No. 09-CV-4878 (JFB) 

(ARL), 2010 WL 3824142, at *1–2 & n.5 (E.D.N.Y. Sept. 23, 2010) (dismissing TILA and 

RESPA claims on limitations grounds).

36. See Kuperman, supra note 6, at 4.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 23

plaints, at least in employment discrimination cases.37

Finally, the prevalence of motions granted with leave to amend requires further study. Our follow-up on the outcome of cases in which the plaintiff had an 

opportunity to amend the complaint has just begun. This effort may provide a 

more precise assessment of the extent to which complaints that are amended are 

challenged by subsequent motions to dismiss, and the extent to which those motions are granted without leave to amend.

We examined motions only 

if they were filed within the first 90 days of a case, and we cannot determine if the 

increase in motions filed during this period would be sustained throughout the duration of the cases. We were not able to study certain case types. For example, our 

study found only 21 orders involving antitrust litigation, and we were not able to 

develop a statistical model that would test for changes in so few cases. Our study 

included motions that challenged claims for reasons other than the sufficiency of 

the factual pleadings, and a more focused study of these types of cases may reveal 

changes that our study failed to detect.

 

37. Emery G. Lee III & Thomas E. Willging, Attorney Satisfaction with the Federal Rules of 

Civil Procedure: Report to the Judicial Conference Advisory Committee on Civil Rules 12 (Federal Judicial Center March 2010) (Seventy percent of plaintiffs’ attorneys who had filed employment discrimination cases after Twombly indicated that they have changed the way they structure 

complaints in employment discrimination cases. Almost all of those attorneys (94%) indicated that 

they include more factual allegations in the complaint than they did prior to Twombly. Seventyfive percent indicated that they have had to “respond to motions to dismiss that might not have 

been filed prior to Twombly/Iqbal.” Seven percent of those attorneys indicated that they had cases 

dismissed for failure to state a claim under the standard announced in Twombly and Iqbal.

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 25

Appendix A: Multivariate Statistical Models

In order to understand the impact of the Twombly and Iqbal decisions on the filing 

and outcome of Rule 12(b)(6) motions for failure to state a claim, we developed 

two separate data sets, both of which excluded all prisoner cases and cases with 

pro se parties. The means by which we developed these two data sets are described in Appendices B and C.

A. Filing of Motion to Dismiss for Failure to State a Claim

The first data set examined civil cases filed in 23 federal district courts in the 

months October 2005 through June 2006, and October 2009 through June 2010.

From among these we identified cases with one or more Rule 12(b)(6) motions to 

dismiss for failure to state a claim filed within the first 90 days after the case was 

either filed originally in federal court or removed from state court.

Table A-1 presents the results of a logit model predicting the presence of a 

motion to dismiss given the year the case was filed, the district, and the type of 

case. As indicated in the table, there is great variation in motion activity across 

federal district courts and across types of cases. For the combined two periods, the 

Northern District of California, the District of Columbia, and the Northern District of Illinois all have higher filing rates than the baseline districts (Rhode Island, Eastern Michigan, and Maryland combined). The districts in the baseline are 

a combination of typical districts and those with too few cases to merit a separate 

variable. A number of courts have lower combined filing rates; the Eastern and 

Southern Districts of New York have especially low filing rates.

38

As indicated by the predicted probabilities, motions to dismiss were more 

likely to be filed in 2010, when we controlled for type of case and federal district; 

these motions doubled from an adjusted estimate of 2.9% in 2006 to 5.8% in 

2010. Filing rates also differed greatly across types of cases. Contract cases were 

more than twice as likely as torts cases to have motions filed; torts cases set the 

baseline for case types. Civil rights cases had the highest level of filing activity, 

with an overall adjusted estimate of 11.7%. In 2010, this rate rose to 12.7%, 

which suggests a leveling off in the rate of filing of motions in civil rights cases.

Motions in employment discrimination cases increased from 7.7% to 10.1%.

 

38. While the filing rates in the Eastern and Southern Districts of New York are very low, the 

likelihood that motions would be granted without leave to amend in these districts was among the 

highest of the districts. We believe this may be due to pretrial practices in these districts, in which 

the judges confer with the attorneys early in the case and provide an indication of the likelihood of 

success of a motion to dismiss. Such a practice would be similar to the practices of many judges in 

these districts who require a pretrial conference prior to the filing of a motion for summary judgment. See, e.g., Individual Practices of Judge John G. Koeltl 2, http://www.nysd.uscourts.gov/

cases/show.php?db=judge_info&id=385 (last visited February 22, 2011) (requiring a premotion

conference before making a motion for summary judgment).
26 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Table A-1: Presence of a Motion to Dismiss for Failure to State a Claim Within 90 

Days of Case Filing 

Variable Coefficient Standard Error

Predicted 

Probability

Eastern District of Arkansas

Northern District of California

Eastern District of California 

District of Colorado

District of the District of Columbia

Middle District of Florida

Northern District of Georgia

Northern District of Illinois

Southern District of Indiana

District of Kansas

District of Massachusetts

District of Minnesota

District of New Jersey

Eastern District of New York

Southern District of New York

Southern District of Ohio

Eastern District of Pennsylvania

District of South Carolina

Northern District of Texas

Southern District of Texas

Year 2010

Contract

Civil Rights

Other

Financial Instrument

Employment Discrimination

Contract x 2010

Civil Rights x 2010

Other x 2010

Financial Instrument x 2010

Employment Discrimination x 2010

Constant

-0.489

0.163

0.024

-0.044

0.704

0.058

-0.081

0.185

-0.342

-0.254

0.092

-0.703

-0.626

-2.001

-1.258

0.093

0.106

0.070

-0.291

-0.247

0.740

0.956

1.507

0.029

0.635

1.050

-0.354

-0.647

-0.262

0.090

-0.442

-3.533

0.153

0.069

0.083

0.092

0.086

0.067

0.082

0.060

0.108

0.129

0.086

0.092

0.080

0.134

0.082

0.089

0.065

0.089

0.093

0.077

0.083

0.081

0.085

0.080

0.144

0.093

0.103

0.109

0.101

0.161

0.120

0.079

Baseline = 0.029

0.018

0.033

0.029

0.029

0.056

0.029

0.029

0.034

0.021

0.022

0.029

0.014

0.016

0.004

0.008

0.029

0.029

0.029

0.022

0.022

0.058

0.071

0.117

0.029

0.053

0.077

0.101

0.127

0.046

0.104

0.101

0.029

Note: N = 102,368; PCP = 95%. Statistically significant effects (p < 0.05) appear in bold print. The 

baseline for the model is a tort case filed in the District of Rhode Island, the Eastern District of Michigan, or 

the District of Maryland in 2006. The baseline probability sets all variables to zero. PCP is the percentage 

correctly predicted by the model and is an estimate of model fit. Where the variables were not statistically 

significant we list the predicted probability as the same as the value for the baseline, with one exception. For 

financial instruments in 2010, the predicted probability includes the main effect for these two significant 

variables. We also employed a rare event analysis, and the results were unchanged.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 27

B. Outcome of Motions to Dismiss for Failure to State a Claim

The second data set examined the outcome of motions to dismiss for failure to 

state a claim as indicated by court orders responding to the merits of such motions

issued from January through June in 2006 and 2010. Again, we removed all orders in cases involving prisoners and pro se parties. We also removed orders responding to Rule 12(b)(6) motions in which the movant and respondent were not 

the original defendant and plaintiff, respectively, which resulted in the elimination 

of orders involving counterclaims and affirmative defenses.

We modeled the outcome of the order in two ways. First, we modeled the 

choice of granting some or all of the relief requested by the motion, either with or 

without leave to amend. Second, we modeled the choice of granting all or some of 

the relief requested by the motion with respect to either some but not all claims by 

one or more plaintiffs, or all claims by one or more plaintiffs.

1. Motions Granted With or Without Leave to Amend

These models implicitly assume that judges are making decisions from among 

three outcomes. In this first model, the judges are choosing from among denying 

the motion, granting the motion with leave to amend, and granting the motion 

without leave to amend. Using a multinomial probit model, we predicted the outcome of the motion given the year in which the order was filed, the district, the 

type of case, and if the motion responded to an amended complaint. The multinomial probit model allows us to assume that the introduction of a third choice 

does not draw judges proportionately from the other two choices (i.e., giving the 

judges the choice of granting the motion with leave to amend does not draw evenly from those who would grant with no leave to amend and those who would deny 

the motion). Judges choose whether to grant or deny the motion, and if they 

choose to grant, then they decide whether to allow leave to amend the complaint 

or not. The two choices of granting the motion are clearly similar to each other, 

and substantially different from denying the motion. Multinomial probit models 

account for those differences. In fact, statistical tests show that this is the appropriate model for these data.39

As indicated in Table A-2, there was great variation across districts in the 

probability of granting the motion with leave to amend. The Eastern District of 

California, the Northern District of California, the Middle District of Florida, the 

Eastern District of New York, and the Southern District of New York all had a 

higher probability of granting with leave to amend than the baseline districts did, 

all else being equal. On the other hand, the Middle District of Florida, the Northern District of Illinois, the Eastern District of Pennsylvania, and the Northern Dis-

 

39. One might also think of this decision making as a nested or conditional process. Judges 

make the decision to grant or deny, and then if they decide to grant, they decide the issue of giving 

leave to amend. While this model is certainly possible, its estimation requires some difference in 

the independent variables used in the analysis. Here the variables are the same, making multinomial probit the appropriate model for this analysis. We also ran logit models on subsets of variables and obtained the same results.
28 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

trict of Texas were all less likely than the baseline districts to grant without leave 

to amend, all else being equal.

Additionally, we found that orders filed in 2010 responding to motions in cases challenging financial instruments had a higher probability of being granted 

without leave to amend than those filed in 2006, all else being equal. We found no 

significant difference in the outcomes of motions in other types of cases and no 

other significant interactions between type of case and year of order. Finally, responding to an amended complaint increased the probability that the motion would

be granted without leave to amend, all else being equal.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 29

Table A-2: Multinomial Probit Model of Granting All or Some of the Relief 

Requested by the Motion With and Without Opportunity to Amend the Complaint

Variable

Grant and Amend Grant and No Amend

Coefficient Std. Error Coefficient Std. Error

Eastern District of Arkansas

Northern District of California

Eastern District of California 

District of Colorado

District of the District of Columbia

Middle District of Florida

Northern District of Georgia

Northern District of Illinois

Southern District of Indiana

District of Kansas

District of Massachusetts

District of Minnesota

District of New Jersey

Eastern District of New York

Southern District of New York

Southern District of Ohio

Eastern District of Pennsylvania

District of South Carolina

Northern District of Texas

Southern District of Texas

Year 2010

Contract

Other

Civil Rights

Financial Instrument

Employment Discrimination

Amended Complaint

Contract x 2010

Other x 2010

Civil Rights x 2010

Financial Instrument x 2010

Employment Discrimination x

2010

Constant

-0.068

1.625

1.589

-0.300

-0.657

0.704

0.639

0.179

-0.363

0.274

0.160

0.206

0.269

0.748

0.825

0.217

0.072

-1.085

0.044

-0.200

0.235

-0.223

-0.545

-0.066

-0.163

-0.202

-0.006

0.040

0.335

0.190

0.836

0.104

-0.752

0.469

0.274

0.250

0.436

0.663

0.256

0.359

0.283

0.420

0.357

0.467

0.400

0.305

0.329

0.376

0.333

0.318

0.651

0.376

0.416

0.337

0.313

0.320

0.314

0.540

0.354

0.102

0.396

0.397

0.401

0.604

0.454

0.345

-0.668

-0.191

-0.260

-0.519

0.146

-0.983

-0.054

-0.709

-0.266

-0.500

0.251

-0.063

0.060

0.157

0.324

-0.064

-0.596

-0.626

-0.909

-0.318

-0.115

-0.289

-0.346

0.008

-1.075

-0.049

0.283

0.005

0.077

0.225

1.828

0.126

0.636

0.391

0.243

0.212

0.329

0.405

0.221

0.304

0.238

0.306

0.303

0.364

0.324

0.245

0.279

0.324

0.270

0.261

0.395

0.333

0.322

0.300

0.272

0.275

0.273

0.556

0.303

0.095

0.354

0.353

0.358

0.615

0.399

0.286

Note: N = 1,915. Statistically significant effects (p < 0.05) appear in bold print. The baseline for the 

model is an order deciding one or more Rule 12(b)(6) motions to dismiss filed in the District of Rhode Island, 

the Eastern District of Michigan, or the District of Maryland in 2006 in a tort case, responding to an unamended complaint.
30 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

To understand the substantive impact of these factors, we estimated marginal 

effects. Table A-3 shows the results of these effects.

Table A-3: Marginal Effects Estimates for Multinomial Probit Model (Deny vs. 

Grant with Leave to Amend vs. Grant Without Leave to Amend)

Variable Deny

Grant and 

Amend

Grant and No 

Amend

Baseline

Districts

Eastern District of California 

Northern District of California

Middle District of Florida

Northern District of Illinois

Eastern District of New York

Southern District of New York

Eastern District of Pennsylvania

Northern District of Texas

Amended Complaint

Financial Instrument x 2010

0.298

-0.149

-0.140

0.060

0.111

-0.087

-0.115

0.106

0.163

-0.054

-0.258

0.145

0.468

0.469

0.304

0.121

0.144

0.135

0.082

0.109

-0.030

-0.077

0.557

-0.319

-0.328

-0.364

-0.233

-0.057

-0.020

-0.188

-0.272

0.084

0.335

Table A-3 indicates the marginal effects of individual variables when other 

variables were held constant. These effects estimates allow for an assessment of 

the impact of each of the variables by adding the baseline probability of each outcome and the effects estimate for each variable that was statistically significant.

For example, while the probability of orders granting a motion with leave to 

amend was only 15% (i.e., 0.145) in the baseline districts, the probability of orders granting motions with leave to amend in the Eastern and Northern Districts 

of California was 61% (0.145 + 0.468 in the Eastern District of California and 

0.145 + 0.469 in the Northern District of California), when other variables were 

held constant. While granting motions without leave to amend was the most likely 

outcome (56% adjusted baseline probability), orders responding to motions challenging financial instruments had an 89% adjusted probability of being granted 

without leave to amend in 2010 (0.557 + 0.335). Responding to an amended complaint increased the adjusted probability of granting a motion without leave to 

amend to 64% (0.557 + 0.084).

2. Motions Granted with Respect to Only Some or All of the Claims of a Plaintiff

Motions may also be granted with respect to only some claims by plaintiffs, or 

with respect to all claims by at least one plaintiff, thereby eliminating one or more 

plaintiffs from the case (at least with respect to the issues addressed by the order).

Table A-4 shows the results of the model estimating these two outcomes.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 31

Table A-4: Multinomial Probit Model of Granting Motion with Respect to Some or 

All Claims by a Plaintiff

Variable

Grant with Respect to 

Claims Only

Grant with Respect to All 

Claims of at Least One Plaintiff

Coefficient Std. Error Coefficient Std. Error

Eastern District of Arkansas

Eastern District of California

Northern District of California 

District of Colorado

District of the District of Columbia

Middle District of Florida

Northern District of Georgia

Northern District of Illinois

Southern District of Indiana

District of Kansas

District of Massachusetts

District of Minnesota

District of New Jersey

Eastern District of New York

Southern District of New York

Southern District of Ohio

Eastern District of Pennsylvania

District of South Carolina

Northern District of Texas

Southern District of Texas

Year 2010

Contract

Other

Civil Rights

Financial Instrument

Employment Discrimination

Amended Complaint

Contract x 2010

Other x 2010

Civil Rights x 2010

Financial Instrument x 2010

Employment Discrimination x 2010

Constant

-0.251

0.675

0.559

-0.429

0.062

-0.193

0.267

-0.397

-0.140

-0.375

0.315

0.074

0.031

0.343

0.198

0.088

-0.226

-0.535

-0.508

-0.120

-0.044

-0.251

-0.504

-0.204

-0.796

0.002

0.297

0.002

0.186

0.330

1.311

-0.010

0.302

0.389

0.241

0.212

0.340

0.417

0.218

0.307

0.241

0.312

0.314

0.371

0.332

0.253

0.284

0.337

0.277

0.264

0.406

0.333

0.327

0.298

0.271

0.276

0.275

0.520

0.302

0.093

0.351

0.351

0.357

0.580

0.397

0.289

-0.974

0.387

0.438

-0.431

-0.053

-0.489

-0.001

-0.453

-0.454

-0.140

0.110

-0.073

0.194

0.308

0.733

-0.123

-0.687

-0.911

-0.737

-0.486

0.138

-0.247

-0.278

0.256

-0.439

-0.278

-0.015

0.041

0.138

0.019

1.429

0.327

-0.082

0.480

0.252

0.221

0.364

0.440

0.234

0.330

0.255

0.345

0.321

0.393

0.352

0.260

0.296

0.335

0.294

0.295

0.465

0.363

0.361

0.328

0.304

0.307

0.301

0.564

0.347

0.100

0.387

0.385

0.387

0.624

0.443

0.315

Note: N = 1,916. Statistically significant effects (p < 0.05) appear in bold print. The baseline for the 

model is an order deciding one or more Rule 12(b)(6) motions to dismiss filed in the District of Rhode Island, 

the Eastern District of Michigan, or the District of Maryland in 2006 in a tort case, responding to an unamended complaint. 
32 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Using the same baseline discussed above, we found that the Eastern and 

Northern Districts of California were again more likely than the baseline districts 

to grant motions with respect to some of the claims by a plaintiff. The Northern 

District of California and the Southern District of New York were also more likely than the baseline districts to grant one or more motions with respect to all 

claims by one or more plaintiffs. On the other hand, the Eastern District of Arkansas, the Middle District of Florida, the Eastern District of Pennsylvania, the District of South Carolina, and the Northern District of Texas were less likely than 

the baseline districts to grant motions with respect to all claims by one or more 

plaintiffs.

Similarly, in 2010, orders responding to motions in cases challenging financial 

instruments were more likely to be granted, both with respect to all claims by at 

least one plaintiff and with respect to only some claims, all else being equal. As 

before, we found no statistically significant increase in the likelihood that motions 

were granted for other types of cases. Finally, responding to an amended complaint increased the likelihood of granting a motion with respect to claims only.

Table A-5 shows the marginal effects of these models. While granting a motion with respect to claims only was the most likely of the three outcomes overall, 

none of the baseline outcomes had a probability over 50%. Again, this effect varies by district. In the Eastern and Northern Districts of California, the probability 

of granting a motion with respect to claims only was approximately 50% (0.399 +

0.137 in the Eastern District of California, and 0.399 + 0.095 in the Northern District of California). Granting motions with respect to claims was also a more likely outcome in the Middle District of Florida and the Eastern District of Pennsylvania, though still not as likely as it was in the Eastern and Northern Districts of 

California. In the Northern District of Texas, denials of motions were more common than the other two outcomes. Orders filed in 2010 responding to motions 

challenging financial instruments had a higher probability of being granted in 

both categories, all else being equal. Finally, responding to an amended complaint 

increased the probability of granting a motion with respect to claims by approximately 49%.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 33

Table A-5: Marginal Effects Multinomial Probit Model (Deny vs. Grant of Motion 

Dismissing Claims Only vs. Grant of Motion Dismissing All Claims of At Least One 

Plaintiff)

Variable Deny Only Claims

All Claims by a 

Plaintiff

Baseline

Districts

Eastern District of Arkansas 

Eastern District of California 

Northern District of California

Middle District of Florida

Southern District of New York

Eastern District of Pennsylvania

District of South Carolina

Northern District of Texas

Amended Complaint

Financial x 2010

0.289

0.146

-0.127

-0.118

0.088

-0.111

0.115

0.200

0.175

-0.043

-0.237

0.400

0.039

0.139

0.094

0.009

-0.071

0.020

-0.049

-0.057

0.093

0.096

0.311

-0.185

-0.012

0.024

-0.097

0.182

-0.136

-0.151

-0.118

-0.050

0.140

C. Summary

Together these three analyses indicate that the likelihood of a motion to dismiss 

for failure to state a claim being filed has increased since 2006 across a wide 

range of types of cases. After controlling for differences across districts and the 

presence of an amended complaint, we found that motions to dismiss were more 

likely to be granted without an opportunity to amend the complaint in cases challenging financial instruments. Motions in such cases were rarely denied in 2010, 

and were split almost evenly between motions granted with respect to all claims 

by at least one plaintiff and motions granted with respect to only some claims by 

plaintiffs. We found no increase in the likelihood that motions to dismiss for failure to state a claim would be granted across other broad case types. The presence 

of an amended complaint also increased the likelihood that the motion would be 

granted without an opportunity to amend the complaint, and granted with regard 

to only some claims by a plaintiff.

Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 35

Appendix B: Identification of Cases and Designation of Case Types

This study examined the filing and resolution of Rule 12(b)(6) motions to dismiss 

for failure to state a claim as revealed in orders filed in 23 federal district courts in 

January through June of 2006 and 2010. The courts included in this study 

represent each of the 12 federal circuits, often including the 2 districts in the circuits with the greatest number of civil filings in 2009.40

Table B-1: Orders Resolving the Merits of Rule 12(b)(6) Motions

The districts included in 

this study are listed in Table B-1.

District

Order Year

2006 2010 Total

Eastern District of Arkansas 14 13 27

Eastern District of California 33 204 237

Northern District of California 100 238 338

District of Colorado 23 19 42

District of the District of Columbia 9 17 26

Middle District of Florida 84 124 208

Northern District of Georgia 47 13 60

Northern District of Illinois 44 86 130

Southern District of Indiana 24 28 52

District of Kansas 26 29 55

District of Massachusetts 14 23 37

District of Maryland 8 13 21

Eastern District of Michigan 38 58 96

District of Minnesota 16 31 47

District of New Jersey 45 71 116

Eastern District of New York 35 47 82

Southern District of New York 16 38 54

Southern District of Ohio 27 55 82

Eastern District of Pennsylvania 58 31 89

District of Rhode Island 0 7 7

District of South Carolina 9 18 27

Northern District of Texas 14 30 44

Southern District of Texas 16 29 45

Total 700 1,222 1,922

 

40. Several of the largest districts in some of the circuits were excluded because of problems 

in collecting the data necessary to conduct the study. Characteristics of the districts are found in 

the Administrative Office of the U.S. Courts publication Federal Court Management Statistics, 

http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics.aspx (last visited February 

6, 2011).
36 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

We wanted to examine motion practice during periods that neither anticipated 

a change in pleading practice nor reacted to the Supreme Court opinions in the 

absence of appellate court guidance. January through June of 2006 was selected 

as a period of stable motion practice before the Supreme Court decision in Bell 

Atlantic Corp. v. Twombly in May 2007. January through June of 2010 was selected as a period after which each of the circuits had had a chance to publish at 

least one appellate court opinion interpreting Ashcroft v. Iqbal and offering guidance to the district courts. This analysis does not address motion activity in the 

interim period from July 2006 through December 2009.

This study is unlike other recent studies of motions to dismiss for failure to 

state a claim that rely on cases that appear in the computerized legal reference 

systems.41 This study identified judicial orders resolving the merits of such motions in each of the selected districts by first identifying orders responding to one 

or more general motions to dismiss, as indicated by codes entered by the court 

clerks of the individual districts into the CM/ECF database.42 These codes relate 

to the entries on the docket sheets of individual cases and point to documents related to the docket entry. Using a Structured Query Language (SQL) program, we 

identified all orders responding to all motions to dismiss filed in the selected district courts for the designated dates.43 Next, we ran a Practical Extraction and Report Language (PERL) program to identify text indicating that the order resolved 

at least one Rule 12(b)(6) motion to dismiss for failure to state a claim.44 This 

process identified 4,725 orders that included variations on the search terms and 

that were included in the coding task.

45 The PERL program was unable to convert 

certain types of non-text documents, such as PDF documents stored as static images, and we were unable to identify orders resolving motions to dismiss in such 

documents.46

A variation on this methodology was used to identify Rule 12(b)(6) motions to 

determine changes in filing rates. We expanded the case selection window to include cases filed as early as October 1, 2005, for the 2006 cohort, and as early as 

October 1, 2009, for the 2010 cohort. Again, we used the CM/ECF codes and an

SQL program to identify motions to dismiss filed within three months of the case 

We believe this procedure is equivalent to identifying motions to 

dismiss on the docket sheets, then searching the text of the motions and responding orders to identify motions to dismiss for failure to state a claim.

 

41. See supra note 4 and accompanying text.

42. Our study relied on data in a backup database in order to avoid disrupting CM/ECF service.

43. We excluded all sealed records and other documents that were unavailable on the courts’ 

electronic public access system (PACER).

44. See supra note 8.

45. As a result of an early error in framing the search request, a few hundred of these were 

cases that included only the term “pro se” without other terms indicating the presence of a Rule 

12(b)(6) motion. These cases were identified and removed from the sample.

46. We presently do not know the extent to which motions and orders are stored as static images, and are not able to estimate the extent to which we may have failed to identify such motions 

and orders in our text search. However, we believe such images are more common in motions than 

in orders, and are more common in submissions by prisoners and pro se parties than in other cases.
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 37

being filed in federal court. We then used a PERL program to identify text indicating that the motion was brought under authority of Rule 12(b)(6).

This is the first time we are aware of that this particular research methodology 

has been used. We believe this methodology for identifying Rule 12(b)(6) motions and related orders represents an improvement over methods that rely on 

computerized legal reference systems, since this method relies on data prepared 

by the district courts to identify all orders responding to all motions to dismiss in 

all cases, and thereby includes cases that do not appear in the computerized legal 

reference systems.47

However, this technique also has some disadvantages. These programs cannot 

convert motions and orders that appear as a non-text scanned image into searchable text. Also, the programs that convert the PDF formatted motions and orders 

into searchable text on occasion have difficulty recognizing relevant text, especially where the quality of the PDF document is poor. For example, we found a 

few instances in which the program overlooked a relevant motion or order because it read the text “12(b)(6)” as “12(b1(6).” We have not estimated the extent 

of these problems, but we believe they do not affect the accuracy of these results, 

since the text misinterpretations would not be related to the outcome of the motions. In other words, we believe such errors would be equally likely in orders 

granting motions and orders denying motions; in contrast, computerized legal reference systems are less likely to include a routine order denying a motion to dismiss.

We believe this methodology is also an improvement over 

methods that identify such motions on the basis of only the text of docket entries, 

since such docket entries often combine all Rule 12 motions and motions for voluntary dismissal under a single general docket entry.

48

 

47. We found that the presence of 12(b)(6) orders in the Westlaw database varied greatly 

across federal districts. We searched in the Westlaw “allfeds” database for 30 to 40 Rule 12(b)(6) 

orders in each of three federal district courts: the Eastern District of Arkansas, the District of Colorado, and the District of Kansas. For the Eastern District of Arkansas, we found 87% of the orders 

on Westlaw, and for the District of Colorado, we found 82% of the orders. However, for the District of Kansas, we found only about 18% of the orders on Westlaw. These findings suggest that 

Westlaw may publish the majority of orders for some districts, but far less than the majority for

other districts. In addition, whether an order was granted or denied may be related to its likelihood 

of publication. In the Eastern District of Arkansas, 65% of published orders were granted, and 

100% of unpublished orders were granted (though there were only 4 unpublished orders). In the 

District of Colorado, 86% of published orders were granted, while only 62% of unpublished orders were granted. In the District of Kansas, about 71% of published and unpublished orders were 

granted. A search of Westlaw for a particular term or type of order may not present an accurate 

picture of the number or disposition of those cases in the district. We interpret these differences in 

publication rates and differences in grant rates as indicating a need for caution in basing conclusions regarding court practices on studies of orders appearing in the Westlaw federal court databases.

48. See supra note 5.
38 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

We linked the cases we identified with records from the Administrative Office 

of the U.S. Courts49

We also relied on data from the Administrative Office to identify types of cases. The AO data include a “Nature of Suit” code that is designated by the party 

filing the case or removing the case to federal court. We then combined these 

codes into seven categories for purposes of analysis. Table B-2 presents the number and types of cases included in each of the categories for the full database.

to allow further specification of the origin and type of case.

These origin codes allowed us to restrict our analyses to cases filed as an original 

proceeding or removed from the state court to the district court. In doing so, we 

excluded from our analyses cases remanded from the courts of appeals, reopened 

or reinstated for additional action, transferred from another federal district court, 

or transferred as part of a multidistrict litigation proceeding, as well as appeals

from a magistrate judge’s decision.

 

49. See Administrative Office of the U.S. Courts, Federal Court Cases: Integrated Database 

Series, available at http://www.icpsr.umich.edu/icpsrweb/NACJD/series/00072. These are administrative data prepared by the clerks in the individual federal district courts. For critiques of the 

usefulness of this data set for research purposes, see Theodore Eisenberg & Margo Schlanger, The 

Reliability of the Administrative Office of the U.S. Courts Database: An Initial Empirical Analysis, 

78 Notre Dame L. Rev. 1455, 1460 (2003) (finding errors in recorded award amounts in torts and 

prisoner civil rights cases); Gillian K. Hadfield, Exploring Economic and Democratic Theories of 

Civil Litigation: Differences Between Individual and Organizational Litigants in the Disposition 

of Federal Civil Cases, 57 Stan. L. Rev. 1275, 1309–11 (2005) (problems with codes indicating 

voluntary and other dismissals); and Gillian K. Hadfield, Where Have All the Trials Gone? Settlements, Non-Trial Adjudications, and Statistical Artifacts in the Changing Disposition of Federal 

Civil Cases, 1 J. Empirical Legal Stud. 705 (2004) (finding other coding errors).
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 39

Table B-2: Classification of Nature of Suit Codes into Broad Case Types

Case Types 2006 2010 Total

Contract Insurance 37 43 80

Marine Contract Actions 0 3 3

Miller Act 1 0 1

Stockholders Suits 5 5 10

Other Contract Actions 100 152 252

Contract Product Liability 1 6 7

Franchise 2 3 5

Securities, Commodities, Exchange 39 29 68

Total 185 241 426

Torts Torts to Land 2 5 7

Airplane Product Liability 0 3 3

Assault, Libel, and Slander 4 6 10

Federal Employers Liability 0 1 1

Marine Personal Injury 2 2 4

Motor Vehicle Personal Injury 1 3 4

Motor Vehicle Product Liability 1 1 2

Other Personal Injury 16 24 40

Medical Malpractice 2 1 3

Personal Injury—Product Liability 9 27 36

Other Fraud 29 19 48

Other Personal Property Damage 3 12 15

Property Damage—Product Liability 1 7 8

Total 70 111 181

Civil Rights Other Civil Rights 150 209 359

Civil Rights Voting 1 1 2

Civil Rights Accommodations 8 3 11

Americans with Disabilities Act Employment 4 10 14

Americans with Disabilities Act Other 9 9 18

Total 172 232 404
40 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Table B-2: Classification of Nature of Suit Codes into Broad Case Types (continued)

Case Types 2006 2010 Total

Employment 

Discrimination

Civil Rights Jobs 95 119 214

Total 95 119 214

Financial

Instrument

Negotiable Instruments 0 64 64

Foreclosure 2 49 51

Other Real Property Actions 3 35 38

Truth in Lending 5 34 39

Consumer Credit 7 53 60

Total 17 235 252

Other Overpayments & Enforcement of Judgment 2 2 4

Overpayments Under the Medicare Act 0 1 1

Recovery of Overpayments of Vet Benefits 2 0 2

Rent, Lease, Ejectment 0 2 2

Antitrust 7 9 16

Bankruptcy Withdrawal 28 U.S.C. § 157 0 6 6

Banks and Banking 2 9 11

Interstate Commerce 2 1 3

Other Immigration Action 0 1 1

Civil (RICO) 15 25 40

Cable and Satellite TV 1 4 5

Other Forfeiture and Penalty Suits 0 1 1

Fair Labor Standards Act 4 15 19

Labor/Management Relations Act 4 7 11

Railway Labor Act 2 0 2

Other Labor Litigation 7 13 20

Employee Retirement Income Security Act 28 42 70

Copyright 11 11 22

Patent 7 19 26

Trademark 8 16 24

Social Security Disability Claim 0 1 1

Tax Suits 2 2 4

Other Statutory Actions 49 79 128

Agricultural Acts 1 0 1

Environmental Matters 6 13 19

Freedom of Information Act of 1974 1 1 2

Constitutionality of State Statutes 0 4 4

Total 161 284 445

Grand Total 700 1,222 1,922
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 41

Appendix C: Coding and Analysis of Motions and Orders

We loaded relevant orders resolving Rule 12(b)(6) motions to dismiss for failure 

to state a claim into a FileMaker Pro database, along with identifying information 

and Administrative Office data related to the case. We assigned the cases random 

numbers, then sorted the cases by those numbers to ensure that coding assignments would be randomly assigned to coders across groups and districts. On two 

occasions we added additional cases to the database following the same randomization procedure.

A team of 10 recent law school graduates reviewed the judicial orders. Relying on remote access to the FileMaker Pro database, they coded information contained in the order indicating the nature and resolution of the motion.50

The coding instructions resolved a number of difficult questions. We excluded 

a number of cases in which Rule 12(b)(6) motions were granted for reasons other 

than a failure to state a claim. For example, we excluded cases in which motions 

were granted on the basis of sovereign or qualified immunity, which we regarded 

as a jurisdictional issue and which was usually raised as an affirmative defense.

When a respondent failed to file a timely response and the court granted the Rule 

12(b)(6) motion, thereby dismissing the claim, we coded the order as resolving 

the merits of the Rule 12(b)(6) motion, since we regarded the failure to respond in 

a timely manner as an admission that the respondent was unable to state a claim.

The FileMaker Pro database allowed the coder to link to the relevant document and 

directly enter codes into the database. In reviewing the motions, the coders first 

confirmed that the order resolved the merits of at least one motion to dismiss for 

failure to state a claim under Federal Rule of Civil Procedure 12(b)(6), noted characteristics of the movant and respondent, and indicated judicial action taken in 

response to the motion. If the order granted all or some of the relief requested by 

the motion, the coder indicated whether the order appeared to exclude all claims 

by one or more plaintiffs, and whether the order indicated that the respondent 

would have an opportunity to amend the complaint. Intercoder reliability checks 

for 25 orders revealed that the coders agreed on 89% to 97% of the coding choices, depending on the nature of the specific question. A copy of the code sheet appears as Figure C-1.

Coders often encountered circumstances in which a single order resolved 

more than one motion, or a single motion was directed at multiple claims. We also 

found multiple motions by multiple defendants directed at a single claim. For our 

purposes, we counted all Rule 12(b)(6) motions resolved by a single order as resolving a single 12(b)(6) motion addressing multiple claims.

 

50. The coders were former law review students who had recently graduated from the University of Oklahoma School of Law. The coders underwent a three-hour training program, and used a 

12-page coding manual to aid in the process. E-mail exchanges, with copies to all members of the 

group, allowed coders to raise questions and seek clarification throughout the process. Steven 

Gensler, a professor of the University of Oklahoma School of Law and a member of the Judicial 

Conference Advisory Committee on Civil Rules, participated in the orientation program and supervised the coding process on-site.
42 Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center

Figure C-1: Code Sheet for Recording Action on Rule 12(b)(6) Motion
Motions to Dismiss for Failure to State a Claim After Iqbal • Federal Judicial Center 43

Rule 12(b)(6) motions directed toward multiple claims often were granted as 

to some claims and denied as to others. If an order granted any relief requested by 

the motion, we coded the motion as being granted as to some claims and then determined whether the order indicated an opportunity to amend the complaint with 

regard to the dismissed claims. Similarly, if the order resolved multiple Rule 

12(b)(6) motions by granting some motions and denying others, the multiple motions were regarded as a single Rule 12(b)(6) motion for our purposes and coded 

as granting some of the relief requested. If an order granting any relief requested 

by a motion allowed an opportunity to amend the complaint, we coded the order 

as allowing an opportunity to amend.

If the order granted any relief sought by the Rule 12(b)(6) motion, the coder 

indicated whether the grant appeared to eliminate all claims by one or more plaintiffs, thereby excluding those plaintiffs from the litigation. If an order dismissed 

some but not all claims by a plaintiff, then the coder indicated that no plaintiff 

was eliminated by way of the ruling. This coding was somewhat imprecise, since 

the breadth of the litigation was sometimes difficult to interpret in the context of 

the order alone. The categories listed as responses in Question 9 on the code sheet 

were developed after pilot work revealed inconsistencies in our attempt to code 

for the effect of the motion on defendants. Unfortunately, after we changed the 

response categories, the language of the question no longer fit the revised categories. This fact was called to the attention of the coders, and we agreed that the 

question would be interpreted as asking how an order that granted at least some of 

the relief requested would affect the role of one or more plaintiffs.

Coding was reviewed by Center staff for completeness and consistency on an 

ongoing basis. Responses designated as “unclear,” “uncertain,” and “other” were 

reviewed and resolved in discussion with the coder. Data were then loaded into 

the SPSS (version 17) statistical analysis program. Multivariate statistical models 

were analyzed using STATA 11 SE. CLARIFY was used to estimate the predicted probabilities for the logit models.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Susan H. Black, U.S. Court of Appeals for the Eleventh Circuit

Magistrate Judge John M. Facciola, U.S. District Court for the District of Columbia

Judge James B. Haines, Jr., U.S. Bankruptcy Court for the District of Maine

Judge James F. Holderman, Jr., U.S. District Court for the Northern District of Illinois

Judge Edward C. Prado, U.S. Court of Appeals for the Fifth Circuit

Chief Judge Loretta A. Preska, U.S. District Court for the Southern District of New York

Judge Kathryn H. Vratil, U.S. District Court for the District of Kansas

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It 

was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, which also includes 

the director of the Administrative Office of the U.S. Courts and seven judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The Education Division 

plans and produces education and training programs for judges and court staff, including satellite 

broadcasts, video programs, publications, curriculum packages for in-court training, and Webbased programs and resources. The Research Division examines and evaluates current and alternative federal court practices and policies. This research assists Judicial Conference committees, 

who request most Center research, in developing policy recommendations. The Center’s research 

also contributes substantially to its educational programs. The two divisions work closely with two 

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