b'\x0cCivil Procedure:\nPleading\nThe Plaintiff\'s Complaint\n\nHillel Y. Levin\n\nCALI eLangdell\xc2\xae Press 2011\n\n\x0cPreface\nThis chapter covers the Civil Procedure topic of Pleading: The Plaintiff\xe2\x80\x99s Complaint.\nThe chapter takes approximately four class periods to cover in detail. The student is\nexposed to cases, presented with questions that are designed to both guide class\ndiscussion and to help the student focus his reading of the materials, pleadings from\ncases, and the applicable Federal Rules of Civil Procedure.\n\n\x0cTable of Contents\n1. Preface ...................................................................... 3\n2. Rule 8. General Rules of Pleading......................... 5\n3. Rule 9. Pleading Special Matters............................ 6\n4. Conley v. Gibson..................................................... 6\n5. Swierkiewicz v. Sorema N.A. ................................. 9\n6. Rule 10. Form of Pleadings.................................. 15\n7. Bell Atlantic Corp. v. Twombly........................... 15\n8. Ashcroft v. Iqbal.................................................... 31\n9. Kregler v. City of New York ............................... 45\n10. Complaint 1............................................................ 56\n11. Complaint 2............................................................ 64\n\n4\n\n\x0cUnit 1\nGoals of the Section.\nBy the end of this section, you should: understand what a plaintiff must include in a\ncomplaint; understand how the relevant standards have changed over time; be able\nto articulate what interests are being balanced and vindicated by the Rules and the\njudicial opinions that interpret and apply them; be able to critique the doctrine; be\nable to apply the doctrine in run-of-the-mill cases as a lawyer would; have a better\nunderstanding of the job of the lawyer through your experience drafting and\nreviewing litigation documents.\nA court case begins with the plaintiff filing a complaint and serving the defendant.\nThe material in this section focuses on the law that governs the contents of the\nplaintiff\xe2\x80\x99s complaint. (For the rules concerning service, see Rule 4.) This has been\none of the most dynamic and controversial areas in all of civil procedure in recent\nyears. Rule 8(a) of the Federal Rules of Civil Procedure provides that a plaintiff\xe2\x80\x99s\ncomplaint must include the following:\n\nRule 8. General Rules of Pleading\n(a) Claims for Relief.\nA pleading that states a claim for relief must contain:\n(1) a short and plain statement of the grounds for the\ncourt\xe2\x80\x99s jurisdiction, unless the court already has\njurisdiction and the claim needs no new jurisdictional\nsupport;\n(2) a short and plain statement of the claim showing that\nthe pleader is entitled to relief; and\n(3) a demand for the relief sought, which may include\nrelief in the alternative or different types of relief.\n\n5\n\n\x0cHowever, Rule 9(b) provides that in some specific cases,\nthe plaintiff must also include additional information:\n\nRule 9. Pleading Special Matters\n(b) Fraud or Mistake; Condition of Mind.\nIn alleging fraud or mistake, a party must state with\nparticularity the circumstances constituting fraud or mistake.\nMalice, intent, knowledge, and other conditions of a person\'s\nmind may be alleged generally.\nIn the following case, the Supreme Court explained what\nRule 8(a)(2) requires of a plaintiff in the typical case. The\nstandard adopted by Conley is often referred to as the Notice\nPleading standard.\n\nConley v. Gibson\n355 U.S. 41 (1957)\nMR. JUSTICE BLACK delivered the opinion of the Court.\nOnce again, Negro employees are here under the Railway Labor Act asking\nthat their collective bargaining agent be compelled to represent them fairly.\nIn a series of cases this Court has emphatically and repeatedly ruled that an\nexclusive bargaining agent under the Railway Labor Act is obligated to\nrepresent all employees in the bargaining unit fairly and without\ndiscrimination because of race, and has held that the courts have power to\nprotect employees against such invidious discrimination.\nThis class suit was brought in a Federal District Court in Texas by certain\nNegro members of the Brotherhood of Railway and Steamship Clerks,\npetitioners here, on behalf of themselves and other Negro employees\nsimilarly situated against the Brotherhood, its Local Union No. 28 and\ncertain officers of both. In summary, the complaint made the following\nallegations relevant to our decision: Petitioners were employees of the Texas\n\n6\n\n\x0cand New Orleans Railroad at its Houston Freight House. Local 28 of the\nBrotherhood was the designated bargaining agents under the Railway Labor\nAct for the bargaining unit to which petitioners belonged. A contract existed\nbetween the Union and the Railroad which gave the employees in the\nbargaining unit certain protection from discharge and loss of seniority. In\nMay, 1954, the Railroad purported to abolish 45 jobs held by petitioners or\nother Negroes, all of whom were either discharged or demoted. In truth, the\n45 jobs were not abolished at all, but instead filled by whites as the Negroes\nwere ousted, except for a few instances where Negroes were rehired to fill\ntheir old jobs, but with loss of seniority. Despite repeated pleas by\npetitioners, the Union, acting according to plan, did nothing to protect them\nagainst these discriminatory discharges and refused to give them protection\ncomparable to that given white employees. The complaint then went on to\nallege that the Union had failed in general to represent Negro employees\nequally and in good faith. It charged that such discrimination constituted a\nviolation of petitioners\' right under the Railway Labor Act to fair\nrepresentation from their bargaining agent. And it concluded by asking for\nrelief in the nature of declaratory judgment, injunction and damages.\nThe respondents appeared and moved to dismiss the complaint on several\ngrounds[, including that] the complaint failed to state a claim upon which\nrelief could be given.\n[W]e hold that the complaint adequately set forth a claim upon which relief\ncould be granted. In appraising the sufficiency of the complaint, we follow,\nof course, the accepted rule that a complaint should not be dismissed for\nfailure to state a claim unless it appears beyond doubt that the plaintiff can\nprove no set of facts in support of his claim which would entitle him to\nrelief. Here, the complaint alleged, in part, that petitioners were discharged\nwrongfully by the Railroad and that the Union, acting according to plan,\nrefused to protect their jobs as it did those of white employees or to help\nthem with their grievances all because they were Negroes. If these allegations\nare proven, there has been a manifest breach of the Union\'s statutory duty to\n\n7\n\n\x0crepresent fairly and without hostile discrimination all of the employees in the\nbargaining unit. This Court squarely held [previously] that discrimination in\nrepresentation because of race is prohibited by the Railway Labor Act. The\nbargaining representative\'s duty not to draw "irrelevant and invidious"\ndistinctions among those it represents does not come to an abrupt end, as\nthe respondents seem to contend, with the making of an agreement between\nunion and employer. Collective bargaining is a continuing process. Among\nother things, it involves day-to-day adjustments in the contract and other\nworking rules, resolution of new problems not covered by existing\nagreements, and the protection of employee rights already secured by\ncontract. The bargaining representative can no more unfairly discriminate in\ncarrying out these functions than it can in negotiating a collective agreement.\nA contract may be fair and impartial on its face, yet administered in such a\nway, with the active or tacit consent of the union, as to be flagrantly\ndiscriminatory against some members of the bargaining unit.\nThe respondents also argue that the complaint failed to set forth specific\nfacts to support its general allegations of discrimination, and that its dismissal\nis therefore proper. The decisive answer to this is that the Federal Rules of\nCivil Procedure do not require a claimant to set out in detail the facts upon\nwhich he bases his claim. To the contrary, all the Rules require is "a short and\nplain statement of the claim" that will give the defendant fair notice of what\nthe plaintiff\'s claim is and the grounds upon which it rests. The illustrative\nforms appended to the Rules plainly demonstrate this. Such simplified\n"notice pleading" is made possible by the liberal opportunity for discovery\nand the other pretrial procedures established by the Rules to disclose more\nprecisely the basis of both claim and defense and to define more narrowly\nthe disputed facts and issues. Following the simple guide of Rule 8(f) that "all\npleadings shall be so construed as to do substantial justice," we have no\ndoubt that petitioners\' complaint adequately set forth a claim and gave the\nrespondents fair notice of its basis. The Federal Rules reject the approach\nthat pleading is a game of skill in which one misstep by counsel may be\n\n8\n\n\x0cdecisive to the outcome, and accept the principle that the purpose of\npleading is to facilitate a proper decision on the merits.\nThe judgment is reversed, and the cause is remanded to the District Court\nfor further proceedings not inconsistent with this opinion.\nIt is so ordered.\n\nQuestions\n1. What does the Conley case instruct as to the meaning of Rule(a)(2)? What\nfunction does the complaint serve in a lawsuit?\n2. According to Rule 8(a) and Conley, is it easy or difficult for a plaintiff to\nmeet the requirements of the Rule?\n3. Who benefits from this standard? Who bears the cost of it?\n4. According to Conley, how would courts get rid of cases where the plaintiff\nproduces no facts that support her claim?\n5. According to Conley, what is the relationship between pleading and\ndiscovery?\n6. What interests do you think are served by Rule 8(a)? What do you think the\npurpose of Rule 8(a) is?\nThe Court has periodically reaffirmed its core holding in Conley, as in the following\ncase.\n\nSwierkiewicz v. Sorema N.A.\n534 U.S. 506 (2002)\nJUSTICE THOMAS delivered the opinion of the Court.\nThis case presents the question whether a complaint in an employment\ndiscrimination lawsuit must contain specific facts establishing a prima facie\ncase of discrimination under the framework set forth by this Court in\n\n9\n\n\x0cMcDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). We hold that an\nemployment discrimination complaint need not include such facts and\ninstead must contain only \xe2\x80\x9ca short and plain statement of the claim showing\nthat the pleader is entitled to relief.\xe2\x80\x9d Fed. Rule Civ. Proc. 8(a)(2).\nI\nPetitioner Akos Swierkiewicz is a native of Hungary, who at the time of his\ncomplaint was 53 years old. In April 1989, petitioner began working for\nrespondent Sorema N. A., a reinsurance company headquartered in New\nYork and principally owned and controlled by a French parent corporation.\nPetitioner was initially employed in the position of senior vice president and\nchief underwriting officer (CUO). Nearly six years later, Fran\xc3\xa7ois M. Chavel,\nrespondent\xe2\x80\x99s Chief Executive Officer, demoted petitioner to a marketing and\nservices position and transferred the bulk of his underwriting responsibilities\nto Nicholas Papadopoulo, a 32-year-old who, like Mr. Chavel, is a French\nnational. About a year later, Mr. Chavel stated that he wanted to \xe2\x80\x9cenergize\xe2\x80\x9d\nthe underwriting department and appointed Mr. Papadopoulo as CUO.\nPetitioner claims that Mr. Papadopoulo had only one year of underwriting\nexperience at the time he was promoted, and therefore was less experienced\nand less qualified to be CUO than he, since at that point he had 26 years of\nexperience in the insurance industry.\nFollowing his demotion, petitioner contends that he \xe2\x80\x9cwas isolated by Mr.\nChavel . . . excluded from business decisions and meetings and denied the\nopportunity to reach his true potential at SOREMA.\xe2\x80\x9d Petitioner\nunsuccessfully attempted to meet with Mr. Chavel to discuss his discontent.\nFinally, in April 1997, petitioner sent a memo to Mr. Chavel outlining his\ngrievances and requesting a severance package. Two weeks later,\nrespondent\xe2\x80\x99s general counsel presented petitioner with two options: He\ncould either resign without a severance package or be dismissed. Mr. Chavel\nfired petitioner after he refused to resign.\nPetitioner filed a lawsuit alleging that he had been terminated on account of\nhis national origin in violation of Title VII of the Civil Rights Act of 1964,\n\n10\n\n\x0cand on account of his age in violation of the Age Discrimination in\nEmployment Act of 1967 (ADEA). The United States District Court for the\nSouthern District of New York dismissed petitioner\xe2\x80\x99s complaint because it\nfound that he \xe2\x80\x9cha[d] not adequately alleged a prima facie case, in that he\nha[d] not adequately alleged circumstances that support an inference of\ndiscrimination.\xe2\x80\x9d The United States Court of Appeals for the Second Circuit\naffirmed the dismissal, relying on its settled precedent, which requires a\nplaintiff in an employment discrimination complaint to allege facts\nconstituting a prima facie case of discrimination under the framework set\nforth by this Court in McDonnell Douglas. The Court of Appeals held that\npetitioner had failed to meet his burden because his allegations were\n\xe2\x80\x9cinsufficient as a matter of law to raise an inference of discrimination.\xe2\x80\x9d We\ngranted certiorari to resolve a split among the Courts of Appeals concerning\nthe proper pleading standard for employment discrimination cases, and now\nreverse.\nII\nApplying Circuit precedent, the Court of Appeals required petitioner to plead\na prima facie case of discrimination in order to survive respondent\xe2\x80\x99s motion\nto dismiss. In the Court of Appeals\xe2\x80\x99 view, petitioner was thus required to\nallege in his complaint: (1) membership in a protected group; (2) qualification\nfor the job in question; (3) an adverse employment action; and (4)\ncircumstances that support an inference of discrimination.\nThe prima facie case under McDonnell Douglas, however, is an evidentiary\nstandard, not a pleading requirement.\nThis Court has never indicated that the requirements for establishing a prima\nfacie case under McDonnell Douglas also apply to the pleading standard that\nplaintiffs must satisfy in order to survive a motion to dismiss. For instance,\nwe have rejected the argument that a Title VII complaint requires greater\n\xe2\x80\x9cparticularity,\xe2\x80\x9d because this would \xe2\x80\x9ctoo narrowly constric[t] the role of the\npleadings.\xe2\x80\x9d Consequently, the ordinary rules for assessing the sufficiency of a\ncomplaint apply. See, e.g., Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)\n\n11\n\n\x0c(\xe2\x80\x9cWhen a federal court reviews the sufficiency of a complaint, before the\nreception of any evidence either by affidavit or admissions, its task is\nnecessarily a limited one. The issue is not whether a plaintiff will ultimately\nprevail but whether the claimant is entitled to offer evidence to support the\nclaims\xe2\x80\x9d).\nFurthermore, imposing the Court of Appeals\xe2\x80\x99 heightened pleading standard\nin employment discrimination cases conflicts with Federal Rule of Civil\nProcedure 8(a)(2), which provides that a complaint must include only \xe2\x80\x9ca\nshort and plain statement of the claim showing that the pleader is entitled to\nrelief.\xe2\x80\x9d Such a statement must simply \xe2\x80\x9cgive the defendant fair notice of what\nthe plaintiff\xe2\x80\x99s claim is and the grounds upon which it rests.\xe2\x80\x9d Conley v.\nGibson, 355 U.S. 41, 47 (1957). This simplified notice pleading standard\nrelies on liberal discovery rules and summary judgment motions to define\ndisputed facts and issues and to dispose of unmeritorious claims. \xe2\x80\x9cThe\nprovisions for discovery are so flexible and the provisions for pretrial\nprocedure and summary judgment so effective, that attempted surprise in\nfederal practice is aborted very easily, synthetic issues detected, and the\ngravamen of the dispute brought frankly into the open for the inspection of\nthe court.\xe2\x80\x9d 5 C. Wright & A. Miller, Federal Practice and Procedure \xc2\xa71202, p.\n76 (2d ed. 1990).\nRule 8(a)\xe2\x80\x99s simplified pleading standard applies to all civil actions, with\nlimited exceptions. Rule 9(b), for example, provides for greater particularity\nin all averments of fraud or mistake. This Court, however, has declined to\nextend such exceptions to other contexts. Thus, complaints in these cases, as\nin most others, must satisfy only the simple requirements of Rule 8(a).\nOther provisions of the Federal Rules of Civil Procedure are inextricably\nlinked to Rule 8(a)\xe2\x80\x99s simplified notice pleading standard. Rule 8(e)(1) states\nthat \xe2\x80\x9c[n]o technical forms of pleading or motions are required,\xe2\x80\x9d and Rule 8(f)\nprovides that \xe2\x80\x9c[a]ll pleadings shall be so construed as to do substantial\njustice.\xe2\x80\x9d Given the Federal Rules\xe2\x80\x99 simplified standard for pleading, \xe2\x80\x9c[a] court\nmay dismiss a complaint only if it is clear that no relief could be granted\n\n12\n\n\x0cunder any set of facts that could be proved consistent with the allegations.\xe2\x80\x9d\nHishon v. King & Spalding, 467 U.S. 69, 73 (1984). If a pleading fails to\nspecify the allegations in a manner that provides sufficient notice, a\ndefendant can move for a more definite statement under Rule 12(e) before\nresponding. Moreover, claims lacking merit may be dealt with through\nsummary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is\nthe starting point of a simplified pleading system, which was adopted to\nfocus litigation on the merits of a claim.\nApplying the relevant standard, petitioner\xe2\x80\x99s complaint easily satisfies the\nrequirements of Rule 8(a) because it gives respondent fair notice of the basis\nfor petitioner\xe2\x80\x99s claims. Petitioner alleged that he had been terminated on\naccount of his national origin in violation of Title VII and on account of his\nage in violation of the ADEA. His complaint detailed the events leading to\nhis termination, provided relevant dates, and included the ages and\nnationalities of at least some of the relevant persons involved with his\ntermination. These allegations give respondent fair notice of what petitioner\xe2\x80\x99s\nclaims are and the grounds upon which they rest. In addition, they state\nclaims upon which relief could be granted under Title VII and the ADEA.\nRespondent argues that allowing lawsuits based on conclusory allegations of\ndiscrimination to go forward will burden the courts and encourage\ndisgruntled employees to bring unsubstantiated suits. Whatever the practical\nmerits of this argument, the Federal Rules do not contain a heightened\npleading standard for employment discrimination suits. A requirement of\ngreater specificity for particular claims is a result that \xe2\x80\x9cmust be obtained by\nthe process of amending the Federal Rules, and not by judicial\ninterpretation.\xe2\x80\x9d Furthermore, Rule 8(a) establishes a pleading standard\nwithout regard to whether a claim will succeed on the merits. \xe2\x80\x9cIndeed it may\nappear on the face of the pleadings that a recovery is very remote and\nunlikely but that is not the test.\xe2\x80\x9d\nFor the foregoing reasons, we hold that an employment discrimination\nplaintiff need not plead a prima facie case of discrimination and that\n\n13\n\n\x0cpetitioner\xe2\x80\x99s complaint is sufficient to survive respondent\xe2\x80\x99s motion to dismiss.\nAccordingly, the judgment of the Court of Appeals is reversed, and the case\nis remanded for further proceedings consistent with this opinion.\nIt is so ordered.\n\nQuestions\n1. What had the lower court done that the Supreme Court rejected?\n2. Did the Supreme Court indicate one way or another way whether Conley\xe2\x80\x99s\nNotice Pleading standard was a good rule or a bad rule, as a policy matter?\nWhat reasons did the Supreme Court offer for adhering to the Notice\nPleading standard?\n3. After Swierkiewicz, what must a plaintiff in a discrimination case state in her\ncomplaint in order to meet the Rule 8(a)(2) standard?\n4. In the decades after Conley, many lower courts imposed heightened pleading\nstandards in a wide range of cases (with the Second Circuit\xe2\x80\x99s heightened\nstandard in Swierkiewicz being one such example). The Supreme Court\nrepeatedly reversed such cases and reaffirmed Conley. What do you think\ndrove lower courts to do so despite consistent reversals from the Supreme\nCourt?\n\nIn-class exercise\nBased on your readings thus far, work with a partner sitting next to you to draft a\ncomplaint that meets the requirements of Rule 8(a) for the following fact pattern.\nYour client is Ms. Holly Branham. Ms. Branham shopped in a Dollar General store\nin Amherst County, Virginia on June 8, 2009. While shopping, she stepped on liquid\nthat was on the floor and fell. She tells you that there were no signs posted around\nthe liquid. She says that she has suffered a severe and permanent injury totaling\n$100,000 in medical bills and lost wages. She wants to sue the Dollar General store\nfor negligence in the District Court for the Western District of Virginia. Dollar\n\n14\n\n\x0cGeneral is based in Virginia. The plaintiff lives in Georgia. (Assume that the\nrequirements for subject matter and personal jurisdiction are met by these facts.)\nBe sure that your complaint complies with Rule 10(a) and (b):\n\nRule 10. Form of Pleadings\n(a) Caption; Names of Parties.\nEvery pleading must have a caption with the court\'s name, a\ntitle, a file number, and a Rule 7(a) designation. The title of\nthe complaint must name all the parties; the title of other\npleadings, after naming the first party on each side, may refer\ngenerally to other parties.\n(b) Paragraphs; Separate Statements.\nA party must state its claims or defenses in numbered\nparagraphs, each limited as far as practicable to a single set of\ncircumstances. A later pleading may refer by number to a\nparagraph in an earlier pleading. If doing so would promote\nclarity, each claim founded on a separate transaction or\noccurrence \xe2\x80\x94 and each defense other than a denial \xe2\x80\x94 must\nbe stated in a separate count or defense.\nRecently, the Supreme Court has issued two very important\nand controversial decisions concerning Rule 8(a)(2). These\ncases may have changed the standards substantially. The first\nof these cases was Bell Atlantic Corp. v. Twombly.\n\nBell Atlantic Corp. v. Twombly\n550 U.S. 544 (2007)\nJUSTICE SOUTER delivered the opinion of the Court.\nLiability under \xc2\xa71 of the Sherman Act, requires a contract, combination, or\nconspiracy, in restraint of trade or commerce. The question in this putative\n\n15\n\n\x0cclass action is whether a \xc2\xa71 complaint can survive a motion to dismiss when\nit alleges that major telecommunications providers engaged in certain parallel\nconduct unfavorable to competition, absent some factual context suggesting\nagreement, as distinct from identical, independent action. We hold that such\na complaint should be dismissed.\nI\nThe upshot of the 1984 divestiture of the American Telephone & Telegraph\nCompany\xe2\x80\x99s (AT&T) local telephone business was a system of regional service\nmonopolies (variously called \xe2\x80\x9cRegional Bell Operating Companies,\xe2\x80\x9d \xe2\x80\x9cBaby\nBells,\xe2\x80\x9d or \xe2\x80\x9cIncumbent Local Exchange Carriers\xe2\x80\x9d (ILECs)), and a separate,\ncompetitive market for long-distance service from which the ILECs were\nexcluded. More than a decade later, Congress withdrew approval of the\nILECs\xe2\x80\x99 monopolies by enacting the Telecommunications Act of 1996, which\nfundamentally restructured local telephone markets and subjected ILECs to a\nhost of duties intended to facilitate market entry. In recompense, the 1996\nAct set conditions for authorizing ILECs to enter the long-distance market.\nCentral to the new scheme was each ILEC\xe2\x80\x99s obligation to share its network\nwith competitors, which came to be known as \xe2\x80\x9ccompetitive local exchange\ncarriers\xe2\x80\x9d (CLECs). A CLEC could make use of an ILEC\xe2\x80\x99s network in any of\nthree ways: by (1) purchasing local telephone services at wholesale rates for\nresale to end users, (2) leasing elements of the ILEC\xe2\x80\x99s network on an\nunbundled basis, or (3) interconnecting its own facilities with the ILEC\xe2\x80\x99s\nnetwork. Owing to the considerable expense and effort required to make\nunbundled network elements available to rivals at wholesale prices, the\nILECs vigorously litigated the scope of the sharing obligation imposed by the\n1996 Act, with the result that the Federal Communications Commission\n(FCC) three times revised its regulations to narrow the range of network\nelements to be shared with the CLECs.\nRespondents William Twombly and Lawrence Marcus (hereinafter plaintiffs)\nrepresent a putative class consisting of all subscribers of local telephone\nand/or high speed internet services from February 8, 1996 to present. In this\n\n16\n\n\x0caction against petitioners, a group of ILECs, plaintiffs seek treble damages\nand declaratory and injunctive relief for claimed violations of \xc2\xa71 of the\nSherman Act, which prohibits \xe2\x80\x9c[e]very contract, combination in the form of\ntrust or otherwise, or conspiracy, in restraint of trade or commerce among\nthe several States, or with foreign nations.\xe2\x80\x9d\nThe complaint alleges that the ILECs conspired to restrain trade in two ways,\neach supposedly inflating charges for local telephone and high-speed Internet\nservices. Plaintiffs say, first, that the ILECs \xe2\x80\x9cengaged in parallel conduct\xe2\x80\x9d in\ntheir respective service areas to inhibit the growth of upstart CLECs. Their\nactions allegedly included making unfair agreements with the CLECs for\naccess to ILEC networks, providing inferior connections to the networks,\novercharging, and billing in ways designed to sabotage the CLECs\xe2\x80\x99 relations\nwith their own customers. According to the complaint, the ILECs\xe2\x80\x99\n\xe2\x80\x9ccompelling common motivation\xe2\x80\x9d to thwart the CLECs\xe2\x80\x99 competitive efforts\nnaturally led them to form a conspiracy; \xe2\x80\x9chad any one ILEC not sought to\nprevent CLECs from competing effectively, the resulting greater competitive\ninroads into that ILEC\xe2\x80\x99s territory would have revealed the degree to which\ncompetitive entry by CLECs would have been successful in the other\nterritories in the absence of such conduct.\xe2\x80\x9d\nSecond, the complaint charges agreements by the ILECs to refrain from\ncompeting against one another. These are to be inferred from the ILECs\xe2\x80\x99\ncommon failure \xe2\x80\x9cmeaningfully to pursue attractive business opportunities\xe2\x80\x9d in\ncontiguous markets where they possessed \xe2\x80\x9csubstantial competitive\nadvantages,\xe2\x80\x9d and from a statement of Richard Notebaert, chief executive\nofficer (CEO) of the ILEC Qwest, that competing in the territory of another\nILEC \xe2\x80\x9c\xe2\x80\x98might be a good way to turn a quick dollar but that doesn\xe2\x80\x99t make it\nright.\xe2\x80\x99\xe2\x80\x9d\nThe complaint couches its ultimate allegations this way:\n\xe2\x80\x9cIn the absence of any meaningful competition between the ILECs in one\nanother\xe2\x80\x99s markets, and in light of the parallel course of conduct that each\nengaged in to prevent competition from CLECs within their respective local\n\n17\n\n\x0ctelephone and/or high speed internet services markets and the other facts\nand market circumstances alleged above, Plaintiffs allege upon information\nand belief that the ILECs have entered into a contract, combination or\nconspiracy to prevent competitive entry in their respective local telephone\nand/or high speed internet services markets and have agreed not to compete\nwith one another and otherwise allocated customers and markets to one\nanother.\xe2\x80\x9d\nThe United States District Court for the Southern District of New York\ndismissed the complaint for failure to state a claim upon which relief can be\ngranted. The District Court acknowledged that \xe2\x80\x9cplaintiffs may allege a\nconspiracy by citing instances of parallel business behavior that suggest an\nagreement,\xe2\x80\x9d but emphasized that \xe2\x80\x9cwhile circumstantial evidence of\nconsciously parallel behavior may have made heavy inroads into the\ntraditional judicial attitude toward conspiracy, \xe2\x80\x98conscious parallelism\xe2\x80\x99 has not\nyet read conspiracy out of the Sherman Act entirely.\xe2\x80\x9d Thus, the District\nCourt understood that allegations of parallel business conduct, taken alone,\ndo not state a claim under \xc2\xa71; plaintiffs must allege additional facts that tend\nto exclude independent self-interested conduct as an explanation for\ndefendants\xe2\x80\x99 parallel behavior.\nThe Court of Appeals for the Second Circuit reversed, holding that the\nDistrict Court tested the complaint by the wrong standard. It held that \xe2\x80\x9cplus\nfactors are not required to be pleaded to permit an antitrust claim based on\nparallel conduct to survive dismissal.\xe2\x80\x9d Although the Court of Appeals took\nthe view that plaintiffs must plead facts that \xe2\x80\x9cinclude conspiracy among the\nrealm of plausible possibilities in order to survive a motion to dismiss,\xe2\x80\x9d it\nthen said that \xe2\x80\x9cto rule that allegations of parallel anticompetitive conduct fail\nto support a plausible conspiracy claim, a court would have to conclude that\nthere is no set of facts that would permit a plaintiff to demonstrate that the\nparticular parallelism asserted was the product of collusion rather than\ncoincidence.\xe2\x80\x9d\n\n18\n\n\x0cWe granted certiorari to address the proper standard for pleading an antitrust\nconspiracy through allegations of parallel conduct, and now reverse.\nII\nA\nBecause \xc2\xa71 of the Sherman Act does not prohibit all unreasonable restraints\nof trade but only restraints effected by a contract, combination, or\nconspiracy, the crucial question is whether the challenged anticompetitive\nconduct stems from independent decision or from an agreement, tacit or\nexpress. While a showing of parallel business behavior is admissible\ncircumstantial evidence from which the fact finder may infer agreement, it\nfalls short of conclusively establishing agreement or itself constituting a\nSherman Act offense. Even conscious parallelism, a common reaction of\nfirms in a concentrated market that recognize their shared economic interests\nand their interdependence with respect to price and output decisions is not in\nitself unlawful.\nB\nThis case presents the question of what a plaintiff must plead in order to\nstate a claim under \xc2\xa71 of the Sherman Act. Federal Rule of Civil Procedure\n8(a)(2) requires only \xe2\x80\x9ca short and plain statement of the claim showing that\nthe pleader is entitled to relief,\xe2\x80\x9d in order to \xe2\x80\x9cgive the defendant fair notice of\nwhat the \xe2\x80\xa6 claim is and the grounds upon which it rests,\xe2\x80\x9d Conley v. Gibson,\n355 U. S. 41, 47 (1957). [But a] plaintiff\xe2\x80\x99s obligation to provide the grounds\nof his entitlement to relief requires more than labels and conclusions, and a\nformulaic recitation of the elements of a cause of action will not do. Factual\nallegations must be enough to raise a right to relief above the speculative\nlevel.\nIn applying these general standards to a \xc2\xa71 claim, we hold that stating such a\nclaim requires a complaint with enough factual matter (taken as true) to\nsuggest that an agreement was made. Asking for plausible grounds to infer an\nagreement does not impose a probability requirement at the pleading stage; it\n\n19\n\n\x0csimply calls for enough fact to raise a reasonable expectation that discovery\nwill reveal evidence of illegal agreement. And, of course, a well-pleaded\ncomplaint may proceed even if it strikes a savvy judge that actual proof of\nthose facts is improbable, and \xe2\x80\x9cthat a recovery is very remote and unlikely.\xe2\x80\x9d\nIn identifying facts that are suggestive enough to render a \xc2\xa71 conspiracy\nplausible, we have the benefit of the prior rulings and considered views of\nleading commentators that lawful parallel conduct fails to bespeak unlawful\nagreement. It makes sense to say, therefore, that an allegation of parallel\nconduct and a bare assertion of conspiracy will not suffice. Without more,\nparallel conduct does not suggest conspiracy, and a conclusory allegation of\nagreement at some unidentified point does not supply facts adequate to show\nillegality. Hence, when allegations of parallel conduct are set out in order to\nmake a \xc2\xa71 claim, they must be placed in a context that raises a suggestion of a\npreceding agreement, not merely parallel conduct that could just as well be\nindependent action.\nThe need at the pleading stage for allegations plausibly suggesting (not\nmerely consistent with) agreement reflects the threshold requirement of Rule\n8(a)(2) that the \xe2\x80\x9cplain statement\xe2\x80\x9d possess enough heft to show that the\npleader is entitled to relief. A statement of parallel conduct, even conduct\nconsciously undertaken, needs some setting suggesting the agreement\nnecessary to make out a \xc2\xa71 claim; without that further circumstance pointing\ntoward a meeting of the minds, an account of a defendant\xe2\x80\x99s commercial\nefforts stays in neutral territory. An allegation of parallel conduct is thus\nmuch like a naked assertion of conspiracy in a \xc2\xa71 complaint: it gets the\ncomplaint close to stating a claim, but without some further factual\nenhancement it stops short of the line between possibility and plausibility of\nentitlement to relief.\n[I]t is one thing to be cautious before dismissing an antitrust complaint in\nadvance of discovery, but quite another to forget that proceeding to antitrust\ndiscovery can be expensive. A district court must retain the power to insist\nupon some specificity in pleading before allowing a potentially massive\n\n20\n\n\x0cfactual controversy to proceed.\xe2\x80\x9d See also Car Carriers, Inc. v. Ford Motor\nCo., 745 F. 2d 1101, 1106 (CA7 1984) (\xe2\x80\x9c[T]he costs of modern federal\nantitrust litigation and the increasing caseload of the federal courts counsel\nagainst sending the parties into discovery when there is no reasonable\nlikelihood that the plaintiffs can construct a claim from the events related in\nthe complaint\xe2\x80\x9d); Note, Modeling the Effect of One-Way Fee Shifting on\nDiscovery Abuse in Private Antitrust Litigation, 78 N. Y. U. L. Rev. 1887,\n1898\xe2\x80\x931899 (2003) (discussing the unusually high cost of discovery in antitrust\ncases); Manual for Complex Litigation, Fourth, \xc2\xa730, p. 519 (2004)\n(describing extensive scope of discovery in antitrust cases); Memorandum\nfrom Paul V. Niemeyer, Chair, Advisory Committee on Civil Rules, to Hon.\nAnthony J. Scirica, Chair, Committee on Rules of Practice and Procedure\n(May 11, 1999), 192 F. R. D. 354, 357 (2000) (reporting that discovery\naccounts for as much as 90 percent of litigation costs when discovery is\nactively employed). That potential expense is obvious enough in the present\ncase: plaintiffs represent a putative class of at least 90 percent of all\nsubscribers to local telephone or high-speed Internet service in the\ncontinental United States, in an action against America\xe2\x80\x99s largest\ntelecommunications firms (with many thousands of employees generating\nreams and gigabytes of business records) for unspecified (if any) instances of\nantitrust violations that allegedly occurred over a period of seven years.\nIt is no answer to say that a claim just shy of a plausible entitlement to relief\ncan, if groundless, be weeded out early in the discovery process through\ncareful case management, given the common lament that the success of\njudicial supervision in checking discovery abuse has been on the modest side.\nAnd it is self-evident that the problem of discovery abuse cannot be solved\nby careful scrutiny of evidence at the summary judgment stage, much less\nlucid instructions to juries; the threat of discovery expense will push costconscious defendants to settle even anemic cases before reaching those\nproceedings. Probably, then, it is only by taking care to require allegations\nthat reach the level suggesting conspiracy that we can hope to avoid the\npotentially enormous expense of discovery in cases with no reasonably\n\n21\n\n\x0cfounded hope that the discovery process will reveal relevant evidence to\nsupport a \xc2\xa71 claim.\nPlaintiffs\xe2\x80\x99 main argument against the plausibility standard at the pleading\nstage is its ostensible conflict with an early statement of ours construing Rule\n8. Justice Black\xe2\x80\x99s opinion for the Court in Conley v. Gibson spoke not only\nof the need for fair notice of the grounds for entitlement to relief but of the\naccepted rule that a complaint should not be dismissed for failure to state a\nclaim unless it appears beyond doubt that the plaintiff can prove no set of\nfacts in support of his claim which would entitle him to relief. This \xe2\x80\x9cno set of\nfacts\xe2\x80\x9d language can be read in isolation as saying that any statement revealing\nthe theory of the claim will suffice unless its factual impossibility may be\nshown from the face of the pleadings; and the Court of Appeals appears to\nhave read Conley in some such way when formulating its understanding of\nthe proper pleading standard.\nOn such a focused and literal reading of Conley\xe2\x80\x99s \xe2\x80\x9cno set of facts,\xe2\x80\x9d a wholly\nconclusory statement of claim would survive a motion to dismiss whenever\nthe pleadings left open the possibility that a plaintiff might later establish\nsome set of undisclosed facts to support recovery. So here, the Court of\nAppeals specifically found the prospect of unearthing direct evidence of\nconspiracy sufficient to preclude dismissal, even though the complaint does\nnot set forth a single fact in a context that suggests an agreement. It seems\nfair to say that this approach to pleading would dispense with any showing of\na reasonably founded hope that a plaintiff would be able to make a case.\nSeeing this, a good many judges and commentators have balked at taking the\nliteral terms of the Conley passage as a pleading standard. See, e.g., Car\nCarriers, 745 F. 2d, at 1106 (\xe2\x80\x9cConley has never been interpreted literally\xe2\x80\x9d\nand, \xe2\x80\x9c[i]n practice, a complaint \xe2\x80\xa6 must contain either direct or inferential\nallegations respecting all the material elements necessary to sustain recovery\nunder some viable legal theory\xe2\x80\x9d (internal quotation marks omitted; emphasis\nand omission in original); Ascon Properties, Inc. v. Mobil Oil Co., 866 F. 2d\n1149, 1155 (CA9 1989) (tension between Conley\xe2\x80\x99s \xe2\x80\x9cno set of facts\xe2\x80\x9d language\n\n22\n\n\x0cand its acknowledgment that a plaintiff must provide the \xe2\x80\x9cgrounds\xe2\x80\x9d on\nwhich his claim rests); O\xe2\x80\x99Brien v. DiGrazia, 544 F. 2d 543, 546, n. 3 (CA1\n1976) (\xe2\x80\x9c[W]hen a plaintiff \xe2\x80\xa6 supplies facts to support his claim, we do not\nthink that Conley imposes a duty on the courts to conjure up unpleaded facts\nthat might turn a frivolous claim of unconstitutional \xe2\x80\xa6 action into a\nsubstantial one\xe2\x80\x9d); McGregor v. Industrial Excess Landfill, Inc., 856 F. 2d 39,\n42\xe2\x80\x9343 (CA6 1988) (quoting O\xe2\x80\x99Brien\xe2\x80\x99s analysis); Hazard, From Whom No\nSecrets Are Hid, 76 Tex. L. Rev. 1665, 1685 (1998) (describing Conley as\nhaving \xe2\x80\x9cturned Rule 8 on its head\xe2\x80\x9d); Marcus, The Revival of Fact Pleading\nUnder the Federal Rules of Civil Procedure, 86 Colum. L. Rev. 433, 463\xe2\x80\x93465\n(1986) (noting tension between Conley and subsequent understandings of\nRule 8).\nWe could go on, but there is no need to pile up further citations to show that\nConley\xe2\x80\x99s \xe2\x80\x9cno set of facts\xe2\x80\x9d language has been questioned, criticized, and\nexplained away long enough. To be fair to the Conley Court, the passage\nshould be understood in light of the opinion\xe2\x80\x99s preceding summary of the\ncomplaint\xe2\x80\x99s concrete allegations, which the Court quite reasonably\nunderstood as amply stating a claim for relief. But the passage so often\nquoted fails to mention this understanding on the part of the Court, and after\npuzzling the profession for 50 years, this famous observation has earned its\nretirement. The phrase is best forgotten as an incomplete, negative gloss on\nan accepted pleading standard: once a claim has been stated adequately, it\nmay be supported by showing any set of facts consistent with the allegations\nin the complaint. Conley, then, described the breadth of opportunity to\nprove what an adequate complaint claims, not the minimum standard of\nadequate pleading to govern a complaint\xe2\x80\x99s survival.\nIII\nWhen we look for plausibility in this complaint, we agree with the District\nCourt that plaintiffs\xe2\x80\x99 claim of conspiracy in restraint of trade comes up short.\nTo begin with, the complaint leaves no doubt that plaintiffs rest their \xc2\xa71\n\n23\n\n\x0cclaim on descriptions of parallel conduct and not on any independent\nallegation of actual agreement among the ILECs.\nWe think that nothing contained in the complaint invests either the action or\ninaction alleged with a plausible suggestion of conspiracy. As to the ILECs\xe2\x80\x99\nsupposed agreement to disobey the 1996 Act and thwart the CLECs\xe2\x80\x99\nattempts to compete, we agree with the District Court that nothing in the\ncomplaint intimates that the resistance to the upstarts was anything more\nthan the natural, unilateral reaction of each ILEC intent on keeping its\nregional dominance. The 1996 Act did more than just subject the ILECs to\ncompetition; it obliged them to subsidize their competitors with their own\nequipment at wholesale rates. The economic incentive to resist was powerful,\nbut resisting competition is routine market conduct, and even if the ILECs\nflouted the 1996 Act in all the ways the plaintiffs allege, there is no reason to\ninfer that the companies had agreed among themselves to do what was only\nnatural anyway; so natural, in fact, that if alleging parallel decisions to resist\ncompetition were enough to imply an antitrust conspiracy, pleading a \xc2\xa71\nviolation against almost any group of competing businesses would be a sure\nthing.\nPlaintiffs say that our analysis runs counter to Swierkiewicz v. Sorema N. A.,\nwhich held that a complaint in an employment discrimination lawsuit need\nnot contain specific facts establishing a prima facie case of discrimination\nunder the framework set forth in McDonnell Douglas Corp. v. Green. As the\nDistrict Court correctly understood, however, Swierkiewicz did not change\nthe law of pleading, but simply re-emphasized that the Second Circuit\xe2\x80\x99s use\nof a heightened pleading standard for Title VII cases was contrary to the\nFederal Rules\xe2\x80\x99 structure of liberal pleading requirements. Even though\nSwierkiewicz\xe2\x80\x99s pleadings detailed the events leading to his termination,\nprovided relevant dates, and included the ages and nationalities of at least\nsome of the relevant persons involved with his termination, the Court of\nAppeals dismissed his complaint for failing to allege certain additional facts\nthat Swierkiewicz would need at the trial stage to support his claim in the\n\n24\n\n\x0cabsence of direct evidence of discrimination. We reversed on the ground that\nthe Court of Appeals had impermissibly applied what amounted to a\nheightened pleading requirement by insisting that Swierkiewicz allege specific\nfacts beyond those necessary to state his claim and the grounds showing\nentitlement to relief.\nHere, in contrast, we do not require heightened fact pleading of specifics, but\nonly enough facts to state a claim to relief that is plausible on its face.\nBecause the plaintiffs here have not nudged their claims across the line from\nconceivable to plausible, their complaint must be dismissed.\nThe judgment of the Court of Appeals for the Second Circuit is reversed,\nand the cause is remanded for further proceedings consistent with this\nopinion.\nIt is so ordered.\nJUSTICE STEVENS, with whom JUSTICE GINSBURG joins except as to Part IV,\ndissenting.\nIn the first paragraph of its 24-page opinion the Court states that the\nquestion to be decided is whether allegations that \xe2\x80\x9cmajor\ntelecommunications providers engaged in certain parallel conduct\nunfavorable to competition\xe2\x80\x9d suffice to state a violation of \xc2\xa71 of the Sherman\nAct. The answer to that question has been settled for more than 50 years. If\nthat were indeed the issue, a summary reversal would adequately resolve this\ncase. As [we have previously] held, parallel conduct is circumstantial evidence\nadmissible on the issue of conspiracy, but it is not itself illegal.\nThus, this is a case in which there is no dispute about the substantive law. If\nthe defendants acted independently, their conduct was perfectly lawful. If,\nhowever, that conduct is the product of a horizontal agreement among\npotential competitors, it was unlawful. Plaintiffs have alleged such an\nagreement and, because the complaint was dismissed in advance of answer,\nthe allegation has not even been denied. Why, then, does the case not\n\n25\n\n\x0cproceed? Does a judicial opinion that the charge is not \xe2\x80\x9cplausible\xe2\x80\x9d provide a\nlegally acceptable reason for dismissing the complaint? I think not.\nRespondents\xe2\x80\x99 amended complaint describes a variety of circumstantial\nevidence and makes the straightforward allegation that petitioners \xe2\x80\x9centered\ninto a contract, combination or conspiracy to prevent competitive entry in\ntheir respective local telephone and/or high speed internet services markets\nand have agreed not to compete with one another and otherwise allocated\ncustomers and markets to one another.\xe2\x80\x9d\nThe complaint explains that, contrary to Congress\xe2\x80\x99 expectation when it\nenacted the 1996 Telecommunications Act, and consistent with their own\neconomic self-interests, petitioner Incumbent Local Exchange Carriers\n(ILECs) have assiduously avoided infringing upon each other\xe2\x80\x99s markets and\nhave refused to permit nonincumbent competitors to access their networks.\nThe complaint quotes Richard Notebaert, the former CEO of one such\nILEC, as saying that competing in a neighboring ILEC\xe2\x80\x99s territory \xe2\x80\x9cmight be a\ngood way to turn a quick dollar but that doesn\xe2\x80\x99t make it right.\xe2\x80\x9d Moreover,\nrespondents allege that petitioners \xe2\x80\x9ccommunicate amongst themselves\xe2\x80\x9d\nthrough numerous industry associations. In sum, respondents allege that\npetitioners entered into an agreement that has long been recognized as a\nclassic per se violation of the Sherman Act.\nUnder rules of procedure that have been well settled, a judge ruling on a\ndefendant\xe2\x80\x99s motion to dismiss a complaint, must accept as true all of the\nfactual allegations contained in the complaint. But instead of requiring\nknowledgeable executives such as Notebaert to respond to these allegations\nby way of sworn depositions or other limited discovery\xe2\x80\x94and indeed without\nso much as requiring petitioners to file an answer denying that they entered\ninto any agreement\xe2\x80\x94the majority permits immediate dismissal based on the\nassurances of company lawyers that nothing untoward was afoot. The Court\nembraces the argument of those lawyers that there is no reason to infer that\nthe companies had agreed among themselves to do what was only natural\nanyway; that there was just no need for joint encouragement to resist the\n\n26\n\n\x0c1996 Act; and that the natural explanation for the noncompetition alleged is\nthat the former Government-sanctioned monopolists were sitting tight,\nexpecting their neighbors to do the same thing.\nThe Court and petitioners\xe2\x80\x99 legal team are no doubt correct that the parallel\nconduct alleged is consistent with the absence of any contract, combination,\nor conspiracy. But that conduct is also entirely consistent with the presence\nof the illegal agreement alleged in the complaint. And the charge that\npetitioners \xe2\x80\x9cagreed not to compete with one another\xe2\x80\x9d is an allegation\ndescribing unlawful conduct. As such, the Federal Rules of Civil Procedure,\nour longstanding precedent, and sound practice mandate that the District\nCourt at least require some sort of response from petitioners before\ndismissing the case.\nTwo practical concerns presumably explain the Court\xe2\x80\x99s dramatic departure\nfrom settled procedural law. Private antitrust litigation can be enormously\nexpensive, and there is a risk that jurors may mistakenly conclude that\nevidence of parallel conduct has proved that the parties acted pursuant to an\nagreement when they in fact merely made similar independent decisions.\nThose concerns merit careful case management, including strict control of\ndiscovery, careful scrutiny of evidence at the summary judgment stage, and\nlucid instructions to juries; they do not, however, justify the dismissal of an\nadequately pleaded complaint without even requiring the defendants to file\nanswers denying a charge that they in fact engaged in collective\ndecisionmaking. More importantly, they do not justify an interpretation of\nFederal Rule of Civil Procedure 12(b)(6) that seems to be driven by the\nmajority\xe2\x80\x99s appraisal of the plausibility of the ultimate factual allegation rather\nthan its legal sufficiency.\nI\nRule 8(a)(2) of the Federal Rules requires that a complaint contain \xe2\x80\x9ca short\nand plain statement of the claim showing that the pleader is entitled to\nrelief.\xe2\x80\x9d The rule did not come about by happenstance and its language is not\ninadvertent. The English experience with Byzantine special pleading rules\xe2\x80\x94\n\n27\n\n\x0cillustrated by the hypertechnical Hilary rules of 18341\xe2\x80\x94made obvious the\nappeal of a pleading standard that was easy for the common litigant to\nunderstand and sufficed to put the defendant on notice as to the nature of\nthe claim against him and the relief sought. Stateside, David Dudley Field\ndeveloped the highly influential New York Code of 1848, which required \xe2\x80\x9c[a]\nstatement of the facts constituting the cause of action, in ordinary and\nconcise language, without repetition, and in such a manner as to enable a\nperson of common understanding to know what is intended.\xe2\x80\x9d Substantially\nsimilar language appeared in the Federal Equity Rules adopted in 1912.\nA difficulty arose, however, in that the Field Code and its progeny required a\nplaintiff to plead \xe2\x80\x9cfacts\xe2\x80\x9d rather than \xe2\x80\x9cconclusions,\xe2\x80\x9d a distinction that proved\nfar easier to say than to apply. As commentators have noted, it is virtually\nimpossible logically to distinguish among ultimate facts, evidence,\xe2\x80\x99 and\nconclusions. Essentially any allegation in a pleading must be an assertion that\ncertain occurrences took place. The pleading spectrum, passing from\nevidence through ultimate facts to conclusions, is largely a continuum varying\nonly in the degree of particularity with which the occurrences are described.\nUnder the relaxed pleading standards of the Federal Rules, the idea was not\nto keep litigants out of court but rather to keep them in. The merits of a\nclaim would be sorted out during a flexible pretrial process and, as\nappropriate, through the crucible of trial.\nII\nIt is in the context of this history that Conley v. Gibson must be understood.\nThe Conley plaintiffs were black railroad workers who alleged that their\nunion local had refused to protect them against discriminatory discharges, in\nviolation of the National Railway Labor Act. The union sought to dismiss the\ncomplaint on the ground that its general allegations of discriminatory\ntreatment by the defendants lacked sufficient specificity. Writing for a\nunanimous Court, Justice Black rejected the union\xe2\x80\x99s claim as foreclosed by\nthe language of Rule 8. In the course of doing so, he articulated the\nformulation the Court rejects today: \xe2\x80\x9cIn appraising the sufficiency of the\n\n28\n\n\x0ccomplaint we follow, of course, the accepted rule that a complaint should not\nbe dismissed for failure to state a claim unless it appears beyond doubt that\nthe plaintiff can prove no set of facts in support of his claim which would\nentitle him to relief.\xe2\x80\x9d\nConsistent with the design of the Federal Rules, Conley\xe2\x80\x99s \xe2\x80\x9cno set of facts\xe2\x80\x9d\nformulation permits outright dismissal only when proceeding to discovery or\nbeyond would be futile. Once it is clear that a plaintiff has stated a claim that,\nif true, would entitle him to relief, matters of proof are appropriately\nrelegated to other stages of the trial process. Today, however, in its\nexplanation of a decision to dismiss a complaint that it regards as a fishing\nexpedition, the Court scraps Conley\xe2\x80\x99s \xe2\x80\x9cno set of facts \xe2\x80\x9d language. Concluding\nthat the phrase has been \xe2\x80\x9cquestioned, criticized, and explained away long\nenough,\xe2\x80\x9d the Court dismisses it as careless composition.\nIf Conley\xe2\x80\x99s \xe2\x80\x9cno set of facts\xe2\x80\x9d language is to be interred, let it not be without a\neulogy. That exact language, which the majority says has \xe2\x80\x9cpuzzl[ed] the\nprofession for 50 years,\xe2\x80\x9d has been cited as authority in a dozen opinions of\nthis Court and four separate writings. In not one of those 16 opinions was\nthe language \xe2\x80\x9cquestioned,\xe2\x80\x9d \xe2\x80\x9ccriticized,\xe2\x80\x9d or \xe2\x80\x9cexplained away.\xe2\x80\x9d Indeed, today\xe2\x80\x99s\nopinion is the first by any Member of this Court to express any doubt as to\nthe adequacy of the Conley formulation. Taking their cues from the federal\ncourts, 26 States and the District of Columbia utilize as their standard for\ndismissal of a complaint the very language the majority repudiates: whether it\nappears \xe2\x80\x9cbeyond doubt\xe2\x80\x9d that \xe2\x80\x9cno set of facts\xe2\x80\x9d in support of the claim would\nentitle the plaintiff to relief.\nPetitioners have not requested that the Conley formulation be retired, nor\nhave any of the six amici who filed briefs in support of petitioners. I would\nnot rewrite the Nation\xe2\x80\x99s civil procedure textbooks and call into doubt the\npleading rules of most of its States without far more informed deliberation as\nto the costs of doing so. Congress has established a process\xe2\x80\x94a rulemaking\nprocess\xe2\x80\x94for revisions of that order.\n\n29\n\n\x0cMost recently, in Swierkiewicz, we were faced with a case more similar to the\npresent one than the majority will allow. In discrimination cases, our\nprecedents require a plaintiff at the summary judgment stage to produce\neither direct evidence of discrimination or, if the claim is based primarily on\ncircumstantial evidence, to meet the shifting evidentiary burdens imposed\nunder the framework articulated in McDonnell Douglas Corp. v. Green.\nSwierkiewicz alleged that he had been terminated on account of national\norigin in violation of Title VII of the Civil Rights Act of 1964. The Second\nCircuit dismissed the suit on the pleadings because he had not pleaded a\nprima facie case of discrimination under the McDonnell Douglas standard.\nWe reversed [unanimously], holding that \xe2\x80\x9cunder a notice pleading system, it\nis not appropriate to require a plaintiff to plead facts establishing a prima\nfacie case because the McDonnell Douglas framework does not apply in\nevery employment discrimination case.\xe2\x80\x9d We also observed that Rule 8(a)(2)\ndoes not contemplate a court\xe2\x80\x99s passing on the merits of a litigant\xe2\x80\x99s claim at\nthe pleading stage. Rather, the \xe2\x80\x9csimplified notice pleading standard\xe2\x80\x9d of the\nFederal Rules \xe2\x80\x9crelies on liberal discovery rules and summary judgment\nmotions to define disputed facts and issues and to dispose of unmeritorious\nclaims.\xe2\x80\x9d\nThe majority rejects the complaint in this case because\xe2\x80\x94in light of the fact\nthat the parallel conduct alleged is consistent with ordinary market\nbehavior\xe2\x80\x94the claimed conspiracy is \xe2\x80\x9cconceivable\xe2\x80\x9d but not \xe2\x80\x9cplausible.\xe2\x80\x9d I\nhave my doubts about the majority\xe2\x80\x99s assessment of the plausibility of this\nalleged conspiracy. But even if the majority\xe2\x80\x99s speculation is correct, its\n\xe2\x80\x9cplausibility\xe2\x80\x9d standard is irreconcilable with Rule 8 and with our governing\nprecedents. As we made clear in Swierkiewicz, fear of the burdens of\nlitigation does not justify factual conclusions supported only by lawyers\xe2\x80\x99\narguments rather than sworn denials or admissible evidence.\nIn this \xe2\x80\x9cBig Case,\xe2\x80\x9d the Court succumbs to the temptation that previous\nCourts have steadfastly resisted. While the majority assures us that it is not\n\n30\n\n\x0capplying any heightened pleading standard, I have a difficult time\nunderstanding its opinion any other way.\nAccordingly, I respectfully dissent.\n\nQuestions\n1. Who is correct, the majority or the dissent, on the question of whether the\nstandard announced in Twombly is consistent with Conley and other cases?\nConsider: if the Swierkiewicz case were decided today, post-Twombly, would\nit come out the same or differently? Why? Put otherwise, in the wake of\nTwombly, what would a plaintiff have to plead in a discrimination case in\norder to state a claim?\n2. What does \xe2\x80\x9cplausible\xe2\x80\x9d mean? How would a court determine whether a\ncomplaint is plausible?\n3. The majority opinion\xe2\x80\x99s discussion and rejection of the \xe2\x80\x9cno set of facts\xe2\x80\x9d\nlanguage from Conley cites almost exclusively to lower court opinions and\nthe analysis of commentators, rather than on other Supreme Court opinions.\nWhy might this be so?\n4. What does the majority identify as the dangers of allowing a case like\nTwombly to proceed in the district court? In his dissent, how does Justice\nStevens argue that such dangers should be addressed?\n5. What does Justice Stevens argue the purpose of Rule 8(a) is?\nAfter Twombly, there was a great deal of disagreement among commentators and\nlower courts as to its implications. The following case was the next opportunity for\nthe Supreme Court to address pleading and Rule 8(a)(2).\n\nAshcroft v. Iqbal\n556 U.S 662 (2009)\nJUSTICE KENNEDY delivered the opinion of the Court.\n\n31\n\n\x0cRespondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of\nthe September 11, 2001, terrorist attacks he was arrested in the United States\non criminal charges and detained by federal officials. Respondent claims he\nwas deprived of various constitutional protections while in federal custody.\nTo redress the alleged deprivations, respondent filed a complaint against\nnumerous federal officials, including John Ashcroft, the former Attorney\nGeneral of the United States, and Robert Mueller, the Director of the Federal\nBureau of Investigation (FBI). Ashcroft and Mueller are the [only] petitioners\nin the case now before us. As to these two petitioners, the complaint alleges\nthat they adopted an unconstitutional policy that subjected respondent to\nharsh conditions of confinement on account of his race, religion, or national\norigin.\nIn the District Court petitioners raised the defense of qualified immunity and\nmoved to dismiss the suit, contending the complaint was not sufficient to\nstate a claim against them. The District Court denied the motion to dismiss,\nconcluding the complaint was sufficient to state a claim despite petitioners\xe2\x80\x99\nofficial status at the times in question. Petitioners brought an interlocutory\nappeal in the Court of Appeals for the Second Circuit. The court affirmed\nthe District Court\xe2\x80\x99s decision.\nRespondent\xe2\x80\x99s account of his prison ordeal could, if proved, demonstrate\nunconstitutional misconduct by some governmental actors. But the\nallegations and pleadings with respect to these actors are not before us here.\nThis case instead turns on a narrower question: Did respondent, as the\nplaintiff in the District Court, plead factual matter that, if taken as true, states\na claim that petitioners deprived him of his clearly established constitutional\nrights. We hold respondent\xe2\x80\x99s pleadings are insufficient.\nI\nFollowing the 2001 attacks, the FBI and other entities within the Department\nof Justice began an investigation of vast reach to identify the assailants and\nprevent them from attacking anew.\n\n32\n\n\x0cIn the ensuing months the FBI questioned more than 1,000 people with\nsuspected links to the attacks in particular or to terrorism in general. Of\nthose individuals, some 762 were held on immigration charges; and a 184member subset of that group was deemed to be \xe2\x80\x9cof \xe2\x80\x98high interest\xe2\x80\x99\xe2\x80\x9d to the\ninvestigation. The high-interest detainees were held under restrictive\nconditions designed to prevent them from communicating with the general\nprison population or the outside world.\nRespondent was one of the [high interest] detainees. According to his\ncomplaint, in November 2001 agents of the FBI and Immigration and\nNaturalization Service arrested him on charges of fraud in relation to\nidentification documents and conspiracy to defraud the United States.\nPending trial for those crimes, respondent was housed at the Metropolitan\nDetention Center (MDC) in Brooklyn, New York. [He] was placed in a\nsection of the MDC known as the Administrative Maximum Special Housing\nUnit (ADMAX SHU [in 2002]]). As the facility\xe2\x80\x99s name indicates, the\nADMAX SHU incorporates the maximum security conditions allowable\nunder Federal Bureau of Prison regulations. ADMAX SHU detainees were\nkept in lockdown 23 hours a day, spending the remaining hour outside their\ncells in handcuffs and leg irons accompanied by a four-officer escort.\nRespondent pleaded guilty to the criminal charges, served a term of\nimprisonment, and was removed to his native Pakistan. He then filed a\n[claim] in the United States District Court for the Eastern District of New\nYork against 34 current and former federal officials and 19 \xe2\x80\x9cJohn Doe\xe2\x80\x9d\nfederal corrections officers. The defendants range from the correctional\nofficers who had day-to-day contact with respondent during the term of his\nconfinement, to the wardens of the MDC facility, all the way to petitioners\xe2\x80\x94\nofficials who were at the highest level of the federal law enforcement\nhierarchy.\nThe 21-cause-of-action complaint does not challenge respondent\xe2\x80\x99s arrest or\nhis confinement in the MDC\xe2\x80\x99s general prison population. Rather, it\nconcentrates on his treatment while confined to the ADMAX SHU. The\n\n33\n\n\x0ccomplaint sets forth various claims against defendants who are not before us.\nFor instance, the complaint alleges that respondent\'s jailors \xe2\x80\x9ckicked him in\nthe stomach, punched him in the face, and dragged him across\xe2\x80\x9d his cell\nwithout justification; subjected him to serial strip and body-cavity searches\nwhen he posed no safety risk to himself or others; and refused to let him and\nother Muslims pray because there would be \xe2\x80\x9c[n]o prayers for terrorists.\xe2\x80\x9d\nThe allegations against petitioners [Ashcraft and Mueller] are the only ones\nrelevant here. The complaint contends that petitioners designated respondent\na person of high interest on account of his race, religion, or national origin,\nin contravention of the First and Fifth Amendments to the Constitution. The\ncomplaint alleges that \xe2\x80\x9cthe [FBI], under the direction of Defendant Mueller,\narrested and detained thousands of Arab Muslim men ... as part of its\ninvestigation of the events of September 11.\xe2\x80\x9d It further alleges that \xe2\x80\x9c[t]he\npolicy of holding post-September-11th detainees in highly restrictive\nconditions of confinement until they were \xe2\x80\x98cleared\xe2\x80\x99 by the FBI was approved\nby Defendants Ashcroft and Mueller in discussions in the weeks after\nSeptember 11, 2001.\xe2\x80\x9d Lastly, the complaint posits that petitioners \xe2\x80\x9ceach\nknew of, condoned, and willfully and maliciously agreed to subject\xe2\x80\x9d\nrespondent to harsh conditions of confinement \xe2\x80\x9cas a matter of policy, solely\non account of [his] religion, race, and/or national origin and for no legitimate\npenological interest.\xe2\x80\x9d The pleading names Ashcroft as the \xe2\x80\x9cprincipal\narchitect\xe2\x80\x9d of the policy, and identifies Mueller as \xe2\x80\x9cinstrumental in [its]\nadoption, promulgation, and implementation.\xe2\x80\x9d\nPetitioners moved to dismiss the complaint for failure to state sufficient\nallegations to show their own involvement in clearly established\nunconstitutional conduct. The District Court denied their motion. Accepting\nall of the allegations in respondent\'s complaint as true, the court held that \xe2\x80\x9cit\ncannot be said that there [is] no set of facts on which [respondent] would be\nentitled to relief as against\xe2\x80\x9d petitioners[,] relying on Conley v. Gibson.\n[P]etitioners filed an interlocutory appeal in the United States Court of\nAppeals for the Second Circuit. While that appeal was pending, this Court\n\n34\n\n\x0cdecided Bell Atlantic Corp. v. Twombly, which discussed the standard for\nevaluating whether a complaint is sufficient to survive a motion to dismiss.\nThe Court of Appeals considered Twombly\xe2\x80\x99s applicability to this case.\nAcknowledging that Twombly retired the Conley no-set-of-facts test relied\nupon by the District Court, the Court of Appeals\xe2\x80\x99 opinion discussed at length\nhow to apply this Court\xe2\x80\x99s \xe2\x80\x9cstandard for assessing the adequacy of pleadings.\xe2\x80\x9d\nIt concluded that Twombly called for a \xe2\x80\x9cflexible \xe2\x80\x98plausibility standard,\xe2\x80\x99 which\nobliges a pleader to amplify a claim with some factual allegations in those\ncontexts where such amplification is needed to render the claim plausible.\xe2\x80\x9d\nThe court found that petitioners\xe2\x80\x99 appeal did not present one of \xe2\x80\x9cthose\ncontexts\xe2\x80\x9d requiring amplification. As a consequence, it held respondent\xe2\x80\x99s\npleading adequate to allege petitioners\xe2\x80\x99 personal involvement in\ndiscriminatory decisions which, if true, violated clearly established\nconstitutional law.\nWe granted certiorari, and now reverse.\nIV\nA\nWe turn to respondent\xe2\x80\x99s complaint. Under Federal Rule of Civil Procedure\n8(a)(2), a pleading must contain a \xe2\x80\x9cshort and plain statement of the claim\nshowing that the pleader is entitled to relief.\xe2\x80\x9d As the Court held in Twombly,\nthe pleading standard Rule 8 announces does not require \xe2\x80\x9cdetailed factual\nallegations,\xe2\x80\x9d but it demands more than an unadorned, the-defendantunlawfully-harmed-me accusation. A pleading that offers \xe2\x80\x9clabels and\nconclusions\xe2\x80\x9d or \xe2\x80\x9ca formulaic recitation of the elements of a cause of action\nwill not do.\xe2\x80\x9d Nor does a complaint suffice if it tenders \xe2\x80\x9cnaked assertion[s]\xe2\x80\x9d\ndevoid of \xe2\x80\x9cfurther factual enhancement.\xe2\x80\x9d\nTo survive a motion to dismiss, a complaint must contain sufficient factual\nmatter, accepted as true, to \xe2\x80\x9cstate a claim to relief that is plausible on its\nface.\xe2\x80\x9d A claim has facial plausibility when the plaintiff pleads factual content\nthat allows the court to draw the reasonable inference that the defendant is\n\n35\n\n\x0cliable for the misconduct alleged. The plausibility standard is not akin to a\n\xe2\x80\x9cprobability requirement,\xe2\x80\x9d but it asks for more than a sheer possibility that a\ndefendant has acted unlawfully. Where a complaint pleads facts that are\n\xe2\x80\x9cmerely consistent with\xe2\x80\x9d a defendant\'s liability, it \xe2\x80\x9cstops short of the line\nbetween possibility and plausibility of entitlement to relief.\xe2\x80\x9d\nTwo working principles underlie our decision in Twombly. First, the tenet\nthat a court must accept as true all of the allegations contained in a complaint\nis inapplicable to legal conclusions. Threadbare recitals of the elements of a\ncause of action, supported by mere conclusory statements, do not suffice.\nRule 8 marks a notable and generous departure from the hyper-technical,\ncode-pleading regime of a prior era, but it does not unlock the doors of\ndiscovery for a plaintiff armed with nothing more than conclusions. Second,\nonly a complaint that states a plausible claim for relief survives a motion to\ndismiss. Determining whether a complaint states a plausible claim for relief\nwill, as the Court of Appeals observed, be a context-specific task that\nrequires the reviewing court to draw on its judicial experience and common\nsense. But where the well-pleaded facts do not permit the court to infer more\nthan the mere possibility of misconduct, the complaint has alleged-but it has\nnot \xe2\x80\x9cshow[n]\xe2\x80\x9d\xe2\x80\x94\xe2\x80\x9cthat the pleader is entitled to relief.\xe2\x80\x9d\nIn keeping with these principles a court considering a motion to dismiss can\nchoose to begin by identifying pleadings that, because they are no more than\nconclusions, are not entitled to the assumption of truth. While legal\nconclusions can provide the framework of a complaint, they must be\nsupported by factual allegations. When there are well-pleaded factual\nallegations, a court should assume their veracity and then determine whether\nthey plausibly give rise to an entitlement to relief.\nOur decision in Twombly illustrates the [above] two-pronged approach.\nThere, we considered the sufficiency of a complaint alleging that incumbent\ntelecommunications providers had entered an agreement not to compete and\nto forestall competitive entry, in violation of the Sherman Act, 15 U.S.C. \xc2\xa7 1.\nRecognizing that \xc2\xa7 1 enjoins only anticompetitive conduct \xe2\x80\x9ceffected by a\n\n36\n\n\x0ccontract, combination, or conspiracy,\xe2\x80\x9d the plaintiffs in Twombly flatly\npleaded that the defendants \xe2\x80\x9cha[d] entered into a contract, combination or\nconspiracy to prevent competitive entry ... and ha[d] agreed not to compete\nwith one another.\xe2\x80\x9d The complaint also alleged that the defendants\xe2\x80\x99 \xe2\x80\x9cparallel\ncourse of conduct ... to prevent competition\xe2\x80\x9d and inflate prices was\nindicative of the unlawful agreement alleged.\nThe Court held the Twombly plaintiffs\xe2\x80\x99 complaint deficient under Rule 8. In\ndoing so it first noted that the plaintiffs\xe2\x80\x99 assertion of an unlawful agreement\nwas a \xe2\x80\x9c \xe2\x80\x98legal conclusion\xe2\x80\x99 \xe2\x80\x9d and, as such, was not entitled to the assumption\nof truth. Had the Court simply credited the allegation of a conspiracy, the\nplaintiffs would have stated a claim for relief and been entitled to proceed\nperforce. The Court next addressed the \xe2\x80\x9cnub\xe2\x80\x9d of the plaintiffs\xe2\x80\x99 complaint-the\nwell-pleaded, nonconclusory factual allegation of parallel behavior\xe2\x80\x94to\ndetermine whether it gave rise to a \xe2\x80\x9cplausible suggestion of conspiracy.\xe2\x80\x9d\nAcknowledging that parallel conduct was consistent with an unlawful\nagreement, the Court nevertheless concluded that it did not plausibly suggest\nan illicit accord because it was not only compatible with, but indeed was\nmore likely explained by, lawful, unchoreographed free-market behavior.\nBecause the well-pleaded fact of parallel conduct, accepted as true, did not\nplausibly suggest an unlawful agreement, the Court held the plaintiffs\xe2\x80\x99\ncomplaint must be dismissed.\nB\nUnder Twombly\xe2\x80\x99s construction of Rule 8, we conclude that respondent\n[Iqbal]\xe2\x80\x99s complaint has not \xe2\x80\x9cnudged [his] claims\xe2\x80\x9d of invidious discrimination\n\xe2\x80\x9cacross the line from conceivable to plausible.\xe2\x80\x9d\nWe begin our analysis by identifying the allegations in the complaint that are\nnot entitled to the assumption of truth. Respondent pleads that petitioners\n\xe2\x80\x9cknew of, condoned, and willfully and maliciously agreed to subject [him]\xe2\x80\x9d to\nharsh conditions of confinement \xe2\x80\x9cas a matter of policy, solely on account of\n[his] religion, race, and/or national origin and for no legitimate penological\ninterest.\xe2\x80\x9d The complaint alleges that Ashcroft was the \xe2\x80\x9cprincipal architect\xe2\x80\x9d of\n\n37\n\n\x0cthis invidious policy, and that Mueller was \xe2\x80\x9cinstrumental\xe2\x80\x9d in adopting and\nexecuting it. These bare assertions, much like the pleading of [an antitrust]\nconspiracy in Twombly, amount to nothing more than a \xe2\x80\x9cformulaic\nrecitation of the elements\xe2\x80\x9d of a constitutional discrimination claim, namely,\nthat petitioners adopted a policy [intentionally] \xe2\x80\x9c \xe2\x80\x98because of,\xe2\x80\x99 not merely \xe2\x80\x98in\nspite of,\xe2\x80\x99 its adverse effects upon an identifiable group.\xe2\x80\x9d As such, the\nallegations are conclusory and not entitled to be assumed true. To be clear,\nwe do not reject these bald allegations on the ground that they are unrealistic\nor nonsensical. It is the conclusory nature of respondent\xe2\x80\x99s allegations, rather\nthan their extravagantly fanciful nature, that disentitles them to the\npresumption of truth.\nWe next consider the factual allegations in respondent\xe2\x80\x99s complaint to\ndetermine if they plausibly suggest an entitlement to relief. The complaint\nalleges that \xe2\x80\x9cthe [FBI], under the direction of Defendant Mueller, arrested\nand detained thousands of Arab Muslim men ... as part of its investigation of\nthe events of September 11.\xe2\x80\x9d It further claims that \xe2\x80\x9c[t]he policy of holding\npost-September-11th detainees in highly restrictive conditions of\nconfinement until they were \xe2\x80\x98cleared\xe2\x80\x99 by the FBI was approved by\nDefendants Ashcroft and Mueller in discussions in the weeks after\nSeptember 11, 2001.\xe2\x80\x9d Taken as true, these allegations are consistent with\npetitioners\xe2\x80\x99 purposefully designating detainees \xe2\x80\x9cof high interest\xe2\x80\x9d because of\ntheir race, religion, or national origin. But given more likely explanations,\nthey do not plausibly establish this purpose.\nThe September 11 attacks were perpetrated by 19 Arab Muslim hijackers\nwho counted themselves members in good standing of al Qaeda, an Islamic\nfundamentalist group. Al Qaeda was headed by another Arab Muslim\xe2\x80\x94\nOsama bin Laden\xe2\x80\x94and composed in large part of his Arab Muslim disciples.\nIt should come as no surprise that a legitimate policy directing law\nenforcement to arrest and detain individuals because of their suspected link\nto the attacks would produce a disparate, incidental impact on Arab Muslims,\neven though the purpose of the policy was to target neither Arabs nor\n\n38\n\n\x0cMuslims. On the facts respondent alleges the arrests Mueller oversaw were\nlikely lawful and justified by his nondiscriminatory intent to detain aliens who\nwere illegally present in the United States and who had potential connections\nto those who committed terrorist acts. As between that \xe2\x80\x9cobvious alternative\nexplanation\xe2\x80\x9d for the arrests, and the purposeful, invidious discrimination\nrespondent asks us to infer, discrimination is not a plausible conclusion.\nBut even if the complaint\xe2\x80\x99s well-pleaded facts give rise to a plausible\ninference that respondent\xe2\x80\x99s arrest was the result of unconstitutional\ndiscrimination, that inference alone would not entitle respondent to relief. It\nis important to recall that respondent\'s complaint challenges neither the\nconstitutionality of his arrest nor his initial detention in the MDC.\nRespondent\xe2\x80\x99s constitutional claims against petitioners rest solely on their\nostensible \xe2\x80\x9cpolicy of holding post-September-11th detainees\xe2\x80\x9d in the\nADMAX SHU once they were categorized as \xe2\x80\x9cof high interest.\xe2\x80\x9d To prevail\non that theory, the complaint must contain facts plausibly showing that\npetitioners purposefully adopted a policy of classifying post-September-11\ndetainees as \xe2\x80\x9cof high interest\xe2\x80\x9d because of their race, religion, or national\norigin.\nThis the complaint fails to do. Though respondent alleges that various other\ndefendants, who are not before us, may have labeled him a person of \xe2\x80\x9cof\nhigh interest\xe2\x80\x9d for impermissible reasons, his only factual allegation against\npetitioners accuses them of adopting a policy approving \xe2\x80\x9crestrictive\nconditions of confinement\xe2\x80\x9d for post-September-11 detainees until they were\n\xe2\x80\x9c \xe2\x80\x98cleared\xe2\x80\x99 by the FBI.\xe2\x80\x9d Accepting the truth of that allegation, the complaint\ndoes not show, or even intimate, that petitioners purposefully housed\ndetainees in the ADMAX SHU due to their race, religion, or national origin.\nAll it plausibly suggests is that the Nation\xe2\x80\x99s top law enforcement officers, in\nthe aftermath of a devastating terrorist attack, sought to keep suspected\nterrorists in the most secure conditions available until the suspects could be\ncleared of terrorist activity. Respondent does not argue, nor can he, that such\na motive would violate petitioners\xe2\x80\x99 constitutional obligations. He would need\n\n39\n\n\x0cto allege more by way of factual content to \xe2\x80\x9cnudg[e]\xe2\x80\x9d his claim of purposeful\ndiscrimination \xe2\x80\x9cacross the line from conceivable to plausible.\xe2\x80\x9d\n[R]espondent\xe2\x80\x99s complaint does not contain any factual allegation sufficient to\nplausibly suggest petitioners\' discriminatory state of mind. His pleadings thus\ndo not meet the standard necessary to comply with Rule 8.\nIt is important to note, however, that we express no opinion concerning the\nsufficiency of respondent\xe2\x80\x99s complaint against the defendants who are not\nbefore us. Respondent\xe2\x80\x99s account of his prison ordeal alleges serious official\nmisconduct that we need not address here. Our decision is limited to the\ndetermination that respondent\xe2\x80\x99s complaint does not entitle him to relief from\npetitioners [Ashcroft and Mueller].\nC\nRespondent offers three arguments that bear on our disposition of his case,\nbut none is persuasive.\n1\nRespondent first says that our decision in Twombly should be limited to\npleadings made in the context of an antitrust dispute. This argument is not\nsupported by Twombly and is incompatible with the Federal Rules of Civil\nProcedure. Though Twombly determined the sufficiency of a complaint\nsounding in antitrust, the decision was based on our interpretation and\napplication of Rule 8. That Rule in turn governs the pleading standard \xe2\x80\x9cin all\ncivil actions and proceedings in the United States district courts.\xe2\x80\x9d Fed. Rule\nCiv. Proc. 1. Our decision in Twombly expounded the pleading standard for\n\xe2\x80\x9call civil actions,\xe2\x80\x9d and it applies to antitrust and discrimination suits alike.\n2\nRespondent next implies that our construction of Rule 8 should be tempered\nwhere, as here, the Court of Appeals has \xe2\x80\x9cinstructed the district court to\ncabin discovery in such a way as to preserve\xe2\x80\x9d petitioners\' defense of qualified\nimmunity \xe2\x80\x9cas much as possible in anticipation of a summary judgment\n\n40\n\n\x0cmotion.\xe2\x80\x9d We have held, however, that the question presented by a motion to\ndismiss a complaint for insufficient pleadings does not turn on the controls\nplaced upon the discovery process. \xe2\x80\x9cIt is no answer to say that a claim just\nshy of a plausible entitlement to relief can, if groundless, be weeded out early\nin the discovery process through careful case management given the\ncommon lament that the success of judicial supervision in checking discovery\nabuse has been on the modest side.\xe2\x80\x9d\nWe decline respondent\xe2\x80\x99s invitation to relax the pleading requirements on the\nground that the Court of Appeals promises petitioners minimally intrusive\ndiscovery. That promise provides especially cold comfort in this pleading\ncontext, where we are impelled to give real content to the concept of\nqualified immunity for high-level officials who must be neither deterred nor\ndetracted from the vigorous performance of their duties. Because\nrespondent\xe2\x80\x99s complaint is deficient under Rule 8, he is not entitled to\ndiscovery, cabined [confined] or otherwise.\n3\nRespondent finally maintains that the Federal Rules expressly allow him to\nallege petitioners\xe2\x80\x99 discriminatory intent \xe2\x80\x9cgenerally,\xe2\x80\x9d which he equates with a\nconclusory allegation (citing Fed. Rule Civ. Proc. 9 [\xe2\x80\x99s inapplicable\nheightened pleading requirement]). It follows, respondent says, that his\ncomplaint is sufficiently well pleaded because it claims that petitioners\ndiscriminated against him \xe2\x80\x9con account of [his] religion, race, and/or national\norigin and for no legitimate penological interest.\xe2\x80\x9d Were we required to accept\nthis allegation as true, respondent\xe2\x80\x99s complaint would survive petitioners\'\nmotion to dismiss. But the Federal Rules do not require courts to credit a\ncomplaint\xe2\x80\x99s conclusory statements without reference to its factual context.\nV\nWe hold that respondent\xe2\x80\x99s complaint fails to plead sufficient facts to state a\nclaim for purposeful and unlawful discrimination against petitioners. The\nCourt of Appeals should decide in the first instance whether to remand to\n\n41\n\n\x0cthe District Court so that respondent can seek leave to amend his deficient\ncomplaint.\nJUSTICE SOUTER, with whom JUSTICE STEVENS, JUSTICE GINSBURG,\nand JUSTICE BREYER join, dissenting.\nThe majority misapplies the pleading standard under Bell Atlantic Corp. v.\nTwombly, to conclude that the complaint fails to state a claim. I respectfully\ndissent from the holding that the complaint fails to satisfy Rule 8(a)(2) of the\nFederal Rules of Civil Procedure.\nI\nA\nThe District Court denied Ashcroft and Mueller\xe2\x80\x99s motion to dismiss Iqbal\xe2\x80\x99s\ndiscrimination claim, and the Court of Appeals affirmed. Ashcroft and\nMueller asked the Court to address whether Iqbal\xe2\x80\x99s allegations against them\n(which they call conclusory) were sufficient to satisfy Rule 8(a)(2) and in\nparticular whether the Court of Appeals misapplied our decision in Twombly\nconstruing that rule.\nII\n[T]he complaint satisfies Rule 8(a)(2). Ashcroft and Mueller admit they are\nliable for their subordinates\xe2\x80\x99 conduct if they \xe2\x80\x9chad actual knowledge of the\nassertedly discriminatory nature of the classification of suspects as being \xe2\x80\x98of\nhigh interest\xe2\x80\x99 and they were deliberately indifferent to that discrimination.\xe2\x80\x9d\nThe complaint thus alleges, at a bare minimum, that Ashcroft and Mueller\nknew of and condoned the discriminatory policy their subordinates carried\nout. Actually, the complaint goes further in alleging that Ashcroft and Muller\naffirmatively acted to create the discriminatory detention policy. If these\nfactual allegations are true, Ashcroft and Mueller were, at the very least,\naware of the discriminatory policy being implemented and deliberately\nindifferent to it.\n\n42\n\n\x0cAshcroft and Mueller argue that these allegations fail to satisfy the\n\xe2\x80\x9cplausibility standard\xe2\x80\x9d of Twombly. They contend that Iqbal\xe2\x80\x99s claims are\nimplausible because such high-ranking officials \xe2\x80\x9ctend not to be personally\ninvolved in the specific actions of lower-level officers down the bureaucratic\nchain of command.\xe2\x80\x9d But this response bespeaks a fundamental\nmisunderstanding of the enquiry that Twombly demands. Twombly does not\nrequire a court at the motion-to-dismiss stage to consider whether the factual\nallegations are probably true. We made it clear, on the contrary, that a court\nmust take the allegations as true, no matter how skeptical the court may be.\nThe sole exception to this rule lies with allegations that are sufficiently\nfantastic to defy reality as we know it: claims about little green men, or the\nplaintiff\xe2\x80\x99s recent trip to Pluto, or experiences in time travel. That is not what\nwe have here.\nThe complaint alleges that FBI officials discriminated against Iqbal solely on\naccount of his race, religion, and national origin, and it alleges the knowledge\nand deliberate indifference that, by Ashcroft and Mueller\xe2\x80\x99s own admission,\nare sufficient to make them liable for the illegal action. Iqbal\xe2\x80\x99s complaint\ntherefore contains \xe2\x80\x9cenough facts to state a claim to relief that is plausible on\nits face.\xe2\x80\x9d\nThe majority says that these are \xe2\x80\x9cbare assertions\xe2\x80\x9d that, \xe2\x80\x9cmuch like the\npleading of conspiracy in Twombly, amount to nothing more than a\n\xe2\x80\x98formulaic recitation of the elements\' of a constitutional discrimination\nclaim\xe2\x80\x9d and therefore are \xe2\x80\x9cnot entitled to be assumed true.\xe2\x80\x9d The fallacy of the\nmajority\xe2\x80\x99s position, however, lies in looking at the relevant assertions in\nisolation. The complaint contains specific allegations that, in the aftermath of\nthe September 11 attacks, the Chief of the FBI\xe2\x80\x99s International Terrorism\nOperations Section and the Assistant Special Agent in Charge for the FBI\xe2\x80\x99s\nNew York Field Office implemented a policy that discriminated against Arab\nMuslim men, including Iqbal, solely on account of their race, religion, or\nnational origin. Viewed in light of these subsidiary allegations, the allegations\nsingled out by the majority as \xe2\x80\x9cconclusory\xe2\x80\x9d are no such thing. Iqbal\xe2\x80\x99s claim is\n\n43\n\n\x0cnot that Ashcroft and Mueller \xe2\x80\x9cknew of, condoned, and willfully and\nmaliciously agreed to subject\xe2\x80\x9d him to a discriminatory practice that is left\nundefined; his allegation is that \xe2\x80\x9cthey knew of, condoned, and willfully and\nmaliciously agreed to subject\xe2\x80\x9d him to a particular, discrete, discriminatory\npolicy detailed in the complaint. Iqbal does not say merely that Ashcroft was\nthe architect of some amorphous discrimination, or that Mueller was\ninstrumental in an ill-defined constitutional violation; he alleges that they\nhelped to create the discriminatory policy he has described. Taking the\ncomplaint as a whole, it gives Ashcroft and Mueller fair notice of what the\nclaim is and the grounds upon which it rests.\nJUSTICE BREYER, dissenting.\nI agree with Justice Souter and join his dissent. I write separately to point out\nthat, like the Court, I believe it important to prevent unwarranted litigation\nfrom interfering with \xe2\x80\x9cthe proper execution of the work of the\nGovernment.\xe2\x80\x9d But I cannot find in that need adequate justification for the\nCourt\xe2\x80\x99s interpretation of Bell Atlantic Corp. v. Twombly, and Federal Rule of\nCivil Procedure 8. The law, after all, provides trial courts with other legal\nweapons designed to prevent unwarranted interference. As the Second\nCircuit explained, where a Government defendant asserts a qualified\nimmunity defense, a trial court, responsible for managing a case and \xe2\x80\x9cmindful\nof the need to vindicate the purpose of the qualified immunity defense,\xe2\x80\x9d can\nstructure discovery in ways that diminish the risk of imposing unwarranted\nburdens upon public officials.\n\nQuestions\n1. Does Iqbal clarify Twombly? If so, how? According to Iqbal, what is the test\nfor whether a complaint meets the Plausibility standard?\n2. In the battle between efficiency and open access/addressing the merits of the\ndispute, which side seems to be on top now? Do Twombly\xe2\x80\x99s and Iqbal\xe2\x80\x99s\n\n44\n\n\x0cfocus on \xe2\x80\x9cplausibility\xe2\x80\x9d represent a heightened pleading standard that is\ndifferent from the Notice Pleading standard articulated in Conley and\nreaffirmed in Swierkiewicz? If so, why do you think the Supreme Court\nswitched sides?\n3. In the wake of Iqbal, what would a plaintiff have to plead in a discrimination\ncase in order to state a claim?\n4. Justice Souter wrote Twombly but dissented in Iqbal. Why?\n5. In the wake of Twombly and Iqbal, is the complaint you drafted in the\nBranham class sufficient? What would you argue if you were the defendant?\nWhat follows is a district court opinion in which the judge struggles to apply\nTwombly and Iqbal. Note that this case was decided before the Supreme Court\ndecided Iqbal. However, the Supreme Court had already decided Twombly, and the\nSecond Circuit had already issued its opinion in Iqbal, interpreting and applying\nTwombly. Thus, the district court in this case is applying the Supreme Court\xe2\x80\x99s\nholding in Twombly and the Second Circuit\xe2\x80\x99s holding in Iqbal.\nPay careful attention to how the district court understands the Twombly and Iqbal\ncases, and what the court decides in order to balance the competing interests at\nstake.\n\nKregler v. City of New York\n608 F. Supp.2d 465 (S.D.N.Y. 2009)\nDecision and Order\nVICTOR MARRERO, District Judge.\nPlaintiff William Kregler (\xe2\x80\x9cKregler\xe2\x80\x9d) brought this action pursuant to 42\nU.S.C. \xc2\xa7 1983 (\xe2\x80\x9c\xc2\xa7 1983\xe2\x80\x9d) alleging that defendants violated his rights under\nthe First and Fourteenth Amendments of the United States Constitution.\nDefendants consist of the City of New York (the \xe2\x80\x9cCity\xe2\x80\x9d) and five individuals\nwho at all relevant times were employees of the City\'s Fire Department\n(\xe2\x80\x9cFDNY\xe2\x80\x9d) or Department of Investigation (\xe2\x80\x9cDOI\xe2\x80\x9d) (collectively with the\n\n45\n\n\x0cCity, \xe2\x80\x9cDefendants\xe2\x80\x9d). Defendants move pursuant to Federal Rule of Civil\nProcedure 12(b)(6) (\xe2\x80\x9cRule 12(b)(6)\xe2\x80\x9d) to dismiss the amended complaint for\nfailure to state a claim upon which relief can be granted. For the reasons\nstated below, the Court defers decision on the motion pending the outcome\nof a preliminary hearing it will con-duct pursuant to Federal Rule of Civil\nProcedure 12(i) (\xe2\x80\x9cRule 12(i)\xe2\x80\x9d).\nI. Introduction\nThis case raises a longstanding concern frequently noted by the Supreme\nCourt and the Second Circuit, as well as by federal courts across the country.\nNot uncommonly, on the basis of nothing more than the barest conclusory\nallegations, government officials are summoned to court to defend private\nlawsuits charging constitutional violations and other serious official\nmisconduct. In most cases the costs the parties incur in litigation such\nactions, measured by expenditures of time and public resources, disruption\nof government operations, and potential damage to professional and\npersonal reputations, are quite extensive. Frequent instances arise in which\nthe underlying issues raise matters involving the formulation of government\npolicy or, as in the case at hand, the appointment of public officers. These\ncircumstances may implicate inquiry into confidential communications,\nthough processes and internal documents containing sensitive matters the\npublic disclosure of which in itself could entail judicial proceedings. Equally\nsignificant are the attendant impacts of such lawsuits on the courts\' dockets\nand the administration of justice.\nMore fundamentally, the question regarding the personal and social costs\nassociated with litigating insubstantial lawsuits reduces to a far greater value:\nfairness. It is inequitable to subject a government official-or indeed any partyto the burdens of defending a claim challenged on legitimate grounds as\ninsubstantial or frivolous for any longer than the minimum time reasonably\nnecessary to ascertain whether sufficient basis exists to warrant allowing the\naction to proceed. For essentially the same social costs and fairness\n\n46\n\n\x0cconsiderations, our justice system prescribes speedy trial rules demanding the\nearliest feasible resolution of charges against defendants in criminal cases.\nThe consequences described above, however, are not always, and not\nnecessarily, of the complainant\'s making. Rather, to a large degree they reflect\nunintended side effects, byproducts of the lenient notice pleading standards\nembodied in Federal Rules of Civil Procedure 8(a) (\xe2\x80\x9cRule 8(a)\xe2\x80\x9d) and 12(b)(6)\nand related case law. These rules are designed to insure that litigants with\nmeritorious claims obtain adequate access to resolve their disputes in court.\nBut, in a judicial instance of the duality that generally pervades so much of\nlife, the same open door that welcomes the just cause also admits the\nnuisance suit; the flimsy or frivolous allegation is as free to enter the\ncourthouse as the valid claim. As the Supreme Court has recognized,\naccusations of unconstitutional conduct on the part of public officials are\neasy to level, but very difficult and costly to defend against.\nOver the course of many years courts concerned with the severe hardships\nthat insubstantial lawsuits place on litigants, on the justice system and on\nsociety as a whole have struggled with this dilemma, not only as it pertains to\ncomplaints lodged against government officials, but to litigation in general.\nTo address these issues, courts have devised several tests meant both to\ninstruct plaintiffs on drafting well-pleaded claims, and to guide the courts\'\nreview of the legal sufficiency of claims for relief. Among such judicial means\nemployed to part the wheat from the chaff are: imposing \xe2\x80\x9cheightened\xe2\x80\x9d\npleading standards, discounting conclusory allegations, rejecting recitations of\nlaw and factually unsupported incantations of the statutory or common law\nelements of a cause of action. Yet, as the case at hand illustrates and the law\nreports amply record, the problem persists, a sign of an intrinsic tension built\ninto the federal rules. The Supreme Court has repeatedly rejected the notion\nthat the Federal Rules of Civil Procedure countenance any universal\nheightened pleading standard, and has consistently reaffirmed that Rule 8(a)\ncalls for nothing more than what its clear text prescribes: \xe2\x80\x9ca short and plain\nstatement of the claim showing that the pleader is entitled to relief.\xe2\x80\x9d\n\n47\n\n\x0cMoreover, whether in their factual allegations as originally crafted, or upon\nbeing granted leave to replead deficient claims, seasoned plaintiffs\' counsel\nknow to charge the pleadings with enough adjectives that reverberate of\nextreme malice, improper motives, and bad faith to raise factual issues\nsufficient to survive a dispositive motion, thus securing a hold on the\ndefendant strong enough for the duration, however long and costly the\nultimate resolution of the claim may be.\nIn practical terms, the philosophy of pleading that these rules embodies, a\none-rule-fits-all principle, defines the scope of the problem engendered by its\nunintended outcomes. For instance, in theory the same generalized minimal\nRule 8(a) standards that govern the plaintiff\'s drafting, as well as the court\'s\nreview, of a complaint alleging common law negligence stemming from a slip\nand fall, or a breach of a simple contract for failure to pay a debt, apply to\nwriting and evaluating a complaint charging civil violations of intricate\nfederal antitrust, intellectual property, or racketeering statutes.\nTo be sure, the federal rules include provisions designed to ensure that\nfactual allegations in pleadings have some evidentiary and legal support and\nare made in good faith, as well as sanctions to deter abusive practices.\nSpecifically, Federal Rule of Civil Procedure 11 (\xe2\x80\x9cRule 11\xe2\x80\x9d) deems any\nlitigation papers submitted to the court as embodying a certification that, to\nthe person\'s knowledge, information and belief, \xe2\x80\x9cformed after an inquiry\nreasonable under the circumstances,\xe2\x80\x9d the filing is not presented for an\nimproper purpose, the claims are warranted by law, and the factual\nallegations have or will likely have evidentiary support. Fed. R. Civ. P.\n11(b)(1)-(3). But these rules are difficult to police effectively, and, under the\nrigorous bar that governs imposition of Rule 11 sanctions, they are\ninfrequently invoked and only rarely enforced.\nThese considerations serve as a backdrop for the Court\'s review of\nDefendants\' motion to dismiss the complaint in this case. Below, the Court\noutlines a procedure it will employ to reach a resolution it deems appropriate\nto do substantial justice for the parties and to promote judicial economy as\n\n48\n\n\x0cexpeditiously as possible. The Court regards the means proposed, if\nsomewhat uncommon, nonetheless permissible under the federal rules and\napplicable case law.\nII. Facts\nUntil his retirement in March 2004, Kregler had been employed by the\nFDNY for 20 years. One month after retiring, Kregler filed a preliminary\napplication for appointment by the Mayor as a City Marshal, a process\ngoverned by Article 16 of the New York City Civil Court Act. Pursuant to \xc2\xa7\n1601 and the Mayor\'s Executive Order 44 (\xe2\x80\x9cExecutive Order 44\xe2\x80\x9d), the\nMayor\'s Committee on City Marshals (the \xe2\x80\x9cMayor\'s Committee\xe2\x80\x9d) is charged\nwith recruiting and recommending candidates for appointment as City\nMarshals. Candidates are subject to a DOI investigation of personal and\nfinancial background, and to a training program administered by DOI. In\nJanuary 2005 Kregler was interviewed by representatives of the Mayor\'s\nCommittee and was later notified by defendant Keith Schwam (\xe2\x80\x9cSchwam\xe2\x80\x9d),\nan Assistant Commissioner at DOI, that DOI would commence its personal\nand financial review of Kregler\'s background. As a follow-up, Kregler met in\nApril 2005 with defendant Darren Keenaghan (\xe2\x80\x9cKeenaghan\xe2\x80\x9d), a DOI\ninvestigator, to discuss Kregler\'s preliminary application. Kregler then made\nminor modifications, signed the revised application, and provided\nauthorizations for release of personal information.\nOn May 25, 2005 Kregler, in his capacity as President of the Fire Marshals\nBenevolent Association (\xe2\x80\x9cFMBA\xe2\x80\x9d), an organization of the FDNY Fire\nMarshals, publicly endorsed the candidacy of Robert Morgenthau\n(\xe2\x80\x9cMorgenthau\xe2\x80\x9d) for reelection as District Attorney for New York County.\nKregler asserts that at that time all other law enforcement associations,\nincluding the two other unions of firefighters, supported Morgenthau\'s\nopponent, Leslie Crocker Snyder (\xe2\x80\x9cSnyder\xe2\x80\x9d). An article that appeared in a\nJune 2005 edition of The Chief, a local newspaper, reported on the\nendorsement of Morgenthau by Kregler acting as president of the FMBA.\nAccording to Kregler, defendant Brian Grogan (\xe2\x80\x9cGrogan\xe2\x80\x9d), an FDNY\n\n49\n\n\x0cSupervising Fire Marshal, posted a copy of that article in a public area within\none of the FDNY offices. Kregler further alleges that Grogan \xe2\x80\x9cberated\xe2\x80\x9d him\nfor the endorsement, stating: \xe2\x80\x9cwho the f... do you think you are. Louie\n[Garcia] makes the endorsements.\xe2\x80\x9d Defendant Louis Garcia (\xe2\x80\x9cGarcia\xe2\x80\x9d) was\nChief Fire Marshal of the FDNY\'s Bureau of Fire Investigation. Kregler\nalleges that both Garcia and Kregler politically supported Snyder\'s campaign\nagainst Morgenthau, that Garcia was socially acquainted with defendant Rose\nGill Hearn (\xe2\x80\x9cHearn\xe2\x80\x9d), the DOI Commissioner, and that Hearn also\npolitically supported Snyder\'s candidacy.\nMorgenthau was reelected as District Attorney in November 2005. In March\n2006 Kregler was informed by letter from Schwam that he would not be\nappointed as a Fire Marshal. He filed this action in August 2008 alleging that\nGarcia and Hearn \xe2\x80\x9cagreed to cause Kregler\'s application for appointment as\na City Marshal to be rejected in retaliation for Kregler\'s support of\nMorgenthau.\xe2\x80\x9d He further asserts that Garcia and Grogan and other FDNY\nemployees requested Hearn, Schwam, Keenaghan, and other DOI employees\nto misuse their authority to cause the rejection of his application. Responding\nto the reason Defendants proffered for denying him an appointment-his\nfailure to disclose details of a command discipline he had received in 1999\nduring his employment by the FDNY-Kregler states that this explanation is\nmerely a pretext for Defendants\' unlawful retaliation.\nIII. Discussion\nDefendants argue that Kregler\'s complaint must be dismissed because his\npleadings fail to satisfy the elements of an action for First Amendment\nretaliation under \xc2\xa7 1983. To state a such claim, a plaintiff must demonstrate\nthat (1) he engaged in constitutionally protected speech, (2) suffered an\nadverse employment action, and (3) a causal connection exists between the\nspeech and the adverse employment action so that it can be said that the\nspeech was a motivating factor in the determination. Defendants contend\nthat Kregler has not stated factual allegations sufficient to support a\nreasonable finding of a causal connection between his endorsement of\n\n50\n\n\x0cMorgenthau\'s candidacy and Defendants\' decision not to offer Kregler a\nposition as City Marshal. Defendants also maintain that Kregler fails to assert\nretaliatory animus or personal involvement by Defendants in the decision not\nto appoint Kregler, and thus that he fails to satisfy the third element of a\nFirst Amendment retaliation claim.\nA more fundamental issue touching upon the sufficiency of Kregler\'s\nretaliation claim is that nothing in the record indicates that Grogan or Garcia\nmade the decision to deny Kregler a City Marshal appointment, or had any\ndirect personal involvement in the matter. Under \xc2\xa7 1601 the final\ndetermination not to offer Kregler a position was presumably made by the\nMayor\'s Committee upon the recommendation of DOI officials. A basic\npremise of Kregler\'s claim is therefore that, for retaliatory reasons arising\nfrom Kregler\'s endorsement of Morgenthau, Grogan and Garcia\ncommunicated and agreed with DOI employees to interfere with Kregler\'s\napplication, and that Hearn and other DOI officials then influenced\nrepresentatives of the Mayor\'s Committee and the Mayor\'s Office to prevent\nKregler\'s appointment. Kregler does not allege that Schwam, Keenaghan,\nHearn, or any other DOI officials had any direct knowledge of his\nendorsement of Morgenthau. He thus grounds his theory of retaliation on\nsuggestion supported by a chain of inferential links that would connect the\nalleged improper political motives of the FDNY officials he names with the\nactions of the officials at DOI.\nDefendants argue that, at its core, Kregler\'s action amounts to a claim of\nconspiracy to violate his constitutional rights. According to Defendants,\nKregler developed his alleged conspiracy theory to overcome the dilemma\nthat the FDNY officials he claims had political motives to oppose his City\nMarshal application were not the persons in DOI or the Mayor\'s Committee\nwho actually made the decision not to offer him an appointment. Faced with\nthis legal impediment, Kregler alleges that first Garcia and Grogan and then\nGarcia and Hearn \xe2\x80\x9cagreed to take steps to interfere with and prevent\nKregler\'s appointment,\xe2\x80\x9d and that Garcia and Hearn \xe2\x80\x9cagreed\xe2\x80\x9d to cause\n\n51\n\n\x0cKregler\'s application for appointment as a City Marshal to be rejected by\nDOI in retaliation for Kregler\'s support of Morgenthau. Reading Kregler\'s\npleadings as asserting a conspiracy claim, Defendants contend that under\nSecond Circuit law a heightened pleading standard governs such actions,\npursuant to which specific facts tending to demonstrate that a \xe2\x80\x9cmeeting of\nthe minds\xe2\x80\x9d occurred must be pleaded, rather than bare conclusory allegations\nthat an agreement was reached.\nIn response, Kregler points out that his complaint does not allege any\nconspiracy claim, and that in any event recent Supreme Court decisions have\nrejected the existence of any general heightened pleading standard. Instead,\nKregler asserts that the applicable test by which to assess the sufficiency of\nhis com-plaint is the short and plain statement of the claim called for under\nRule 8(a)(2), which requires that the pleadings need only give the defendant\n\xe2\x80\x9cfair notice of what the claim is and the grounds upon which it rests.\xe2\x80\x9d\nSwierkiewicz, 534 U.S. at 513, 122 S. Ct. 992. With regard to the standard\ngoverning review of Rule 12(b)(6) motions to dismiss, Kregler points to\nauthority declaring that a complaint should not be dismissed for failure to\nstate a claim \xe2\x80\x9cunless it appears beyond doubt that the plaintiff can prove no\nset of facts in support of his claim which would entitle him to relief.\xe2\x80\x9d Ricciuti\nv. NYC Transit Auth., 941 F.2d 119, 123 (2d Cir.1991) (quoting Conley v.\nGibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)).\nSurprisingly, in squaring off their conflicting stands on the proper standard\nof review, the parties use as foils the test of a \xe2\x80\x9cheightened pleading standard\xe2\x80\x9d\npointed against the language of \xe2\x80\x9cno set of facts.\xe2\x80\x9d But neither of them\nmentions either of two recent cases that essentially dispatched those phrases\nfrom our procedural law as general pleading guides: Twombly, now the most\nrelevant Supreme Court decision articulating the applicable test to evaluate\nRule 12(b)(6) motions to dismiss for failure to state a claim, and Iqbal, the\nSecond Circuit\'s reading and application of Twombly. In Twombly, an\nantitrust case, the Supreme Court, though reiterating the traditional liberal\ntests pertaining to pleading under Rule 8(a) and to reviewing motions to\n\n52\n\n\x0cdismiss under Rule 12(b)(6), nonetheless gave Conley\'s \xe2\x80\x9cno set of facts\xe2\x80\x9d\nformula a decent burial, and somewhat modified the traditional notice\npleadings standard. The Twombly Court then stated that to be sufficient\nunder Rule 8(a) and survive a Rule 12(b)(6) motion to dismiss, the factual\nallegations in a complaint must be \xe2\x80\x9cenough to raise a right to relief above the\nspeculative level,\xe2\x80\x9d and state a claim \xe2\x80\x9cplausible on its face.\xe2\x80\x9d\nExplaining Twombly in the context of a defense invoking qualified\nimmunity, the Second Circuit in Iqbal concluded that the Supreme Court had\nnot recognized a universal standard of heightened fact pleading, but instead\nrequired \xe2\x80\x9ca flexible \xe2\x80\x98plausibility standard,\xe2\x80\x99 which obliges a pleader to amplify\na claim with some factual allegations in those contexts where such\namplification is needed to render the claim plausible.\xe2\x80\x9d In applying the\nTwombly standard to the facts of the case before it, the Iqbal Court noted\nthat some of the plaintiff\'s claims were based on generalized allegations of\nsupervisory involvement rather than on facts supporting the claim. It\nconcluded that to survive a motion to dismiss under Twombly\'s plausibility\nstandard \xe2\x80\x9ca conclusionary allegation concerning some elements of a\nplaintiff\'s claims might need to be fleshed out.\xe2\x80\x9d\nRunning through Twombly and Iqbal is a common theme that has long\ntroubled the courts: the tension between, on the one hand, the lenient notice\npleading standards embodied in Rules 8(a) and 12(b)(6) to ensure that\nplaintiffs with meritorious claims have maximum access to the courts, and on\nthe other hand the imperative to \xe2\x80\x9cweed out\xe2\x80\x9d groundless actions early in the\nlitigation so as to minimize the expenditure of time and resources of the\nparties and the courts.\nThe instant litigation raises many of those issues and concerns. It entails\nserious charges of constitutional violations and abuse of power allegedly\ncommitted for political purposes by high officials of the City\'s FDNY and\nDOI, including the DOI Commissioner.\nThe Court finds that under Twombly\'s plausibility standard Kregler\'s\namended complaint remains at best borderline in stating a First Amendment\n\n53\n\n\x0cretaliation claim. To survive the new motion to dismiss the pleadings as\nmodified would require the Court to accept as true numerous conclusory\nallegations, to make substantial inferential leaps, and to resolve considerable\ndoubts in Kregler\'s favor.\nPerhaps not cognizant of the gloss Twombly added to the Rule 8(a) pleading\nstandard, Kregler simply points the Court to the traditional \xe2\x80\x9cno set of facts\xe2\x80\x9d\nstandard that governed review of motions to dismiss under Conley: that\nfactual allegations in the complaint are presumed to be true; that all\nreasonable inferences must be drawn and doubts resolved in the plaintiff\'s\nfavor; that these standards apply with particular strictness as regards\ncomplaints of civil rights violations; and that an inquiry as to the factual issue\nof causation addresses the quality of the evidence and is thus more\nappropriate on a motion for summary judgment rather than on the basis of\nthe pleadings. This argument overlooks that Twombly\'s intent, as read by the\nSecond Circuit, was \xe2\x80\x9cto make some alteration in the regime of pure notice\npleading that had prevailed in the federal courts ever since Conley v.\nGibson.\xe2\x80\x9d\nNonetheless, the Court is mindful of the traditional standards insofar as they\nsurvive Twombly, and also of other strictures that limit judicial authority to\ndismiss a complaint pursuant to Rule 12(b)(6).\nWeighing the considerations described above, and acknowledging that this\ncase presents a close call, to minimize additional motion practice at this stage\nand avert potentially unnecessary extensive discovery, the Court proposes\ntwo steps intended to achieve the \xe2\x80\x9camplication\xe2\x80\x9d of factual allegations by\nmeans of a fleshing out procedure such as that suggested in Iqbal. First, the\nCourt will exercise its discretion pursuant to Rule 12(i) to schedule a\npreliminary hearing at which the parties may present the testimony of live\nwitnesses and other evidence limited to Defendants\' objections to the\npleadings, specifically the threshold legal issues upon which, under the\nTwombly and Iqbal plausibility test, the sufficiency of Kregler\'s retaliation\nclaim is grounded. Second, the hearing would serve as an occasion for the\n\n54\n\n\x0cCourt to probe, in accordance with Rule 11(b), the extent to which some of\nKregler\'s conclusory allegations have factual support and were formed after\nan inquiry reasonable under the circumstances.\nRule 12(i) authorizes the Court to conduct a preliminary hearing to consider\nand decide before trial a motion raising any defense listed in Rule 12(b)(1)(7). As appropriate, the Court may use that procedure to determine\njurisdictional as well as other threshold issues. The Court may order such a\nhearing on motion or sua sponte. As regards matters involving factual issues\nthat bear on the subject of the hearing the Court may consider affidavits,\ndepositions or documents, or testimony presented orally.\nThe Court finds that employment of this procedure is particularly fitting to\nachieve early resolution of certain threshold issues in this case. The action\ninvolves serious accusations of violations of constitutional rights brought\nagainst public officials. The Supreme Court and the Second Circuit have\ninstructed district courts to exercise their broad discretion to guard public\nofficials from being subjected to unnecessary and burdensome discovery or\ntrial proceedings.\nAdmittedly, the approach the Court proposes here entails passage through\nrelatively unchartered ground. Difficulties are bound to arise along the way.\nAt this point some of the bumps and detours are entirely unknown, while\nothers, though likely in the repertory of anticipated legal argument, do not\nappear insurmountable. But such challenges go with the territory in any form\nof exploration for new paths and different ways of doing things.\nIV. Order\nFor the reasons stated above, it is hereby ordered that the parties are directed\nto appear at a conference with the Court on March 27, 2009 at 2:00 p.m. to\nreview preparation for a preliminary hearing pursuant to Federal Rule of Civil\nProcedure 12(i) concerning the matters described in the preceding discussion.\n\n55\n\n\x0cQuestions\n1. Does the judge in this case see Twombly and Iqbal as having changed the\nlaw? If so, how?\n2. What does the judge identify as the positives and negatives of having\nrestrictive pleading rules, as opposed to permissive ones?\n3. How does the judge propose to balance the interests at stake? Do you think\nthis is a good idea?\n4. What do you think will happen at the Rule 12(i) hearing?\nWhen you graduate from law school and pass the bar, you will be a lawyer. In\npreparing for your career as a lawyer, it will be helpful if you have been introduced to\nactual litigation documents from real cases. Peruse the following two complaints and\nconsider the following questions:\n1. What is the crux of each lawsuit? Make sure you understand what the basic\nfacts and legal theories are.\n2. Notice how the complaints comply with Rule 10(a) and (b).\n3. Why are these complaints so long and detailed? Don\xe2\x80\x99t they more than satisfy\nboth Notice Pleading and Plausibility Pleading standards? Having read Rule\n8(a) and the cases, are you surprised by the length and detail of these\ncomplaints?\n4. Would you draft the complaints differently?\n\nComplaint 1\n\n56\n\n\x0cUNITED STATES DISTRICT COURT FOR THE\nMIDDLE DISTRICT OF FLORIDA\nBRANDON CORDERO,\n\n)\n)\n\nPlaintiff,\n\n)\n)\n\nCase No.\n6:08-CV-2118-22 KRS\n\nvs.\n)\n)\nCITY OF KISSIMMEE\n\n)\n)\n\nDefendant,\n\n)\n\n_________________________________________________\nCOMPLAINT AND DEMAND FOR JURY TRIAL\nPlaintiff, Brandon Cordero, hereinafter (\xe2\x80\x9cCordero\xe2\x80\x9d) sues the Defendant, City\nof Kissimmee (\xe2\x80\x9cCity\xe2\x80\x9d), and alleges:\nJurisdiction and Venue\n1. This action arises under Title VII of the Civil Rights Act of 1964, as\namended, 42 U.S.C. \xc2\xa7 2000e, et. seq., the Civil Rights Act of 1991, 42 U.S.C.\n\xc2\xa71981a.\n\n57\n\n\x0c2. Jurisdiction is invoked pursuant to 42 U.S.C. \xc2\xa7 2000e-5(f), 28 U.S.C. \xc2\xa7\xc2\xa7\n1343(3) and 1343(4), and pursuant to 28 U.S.C. \xc2\xa7 1367.\n3. Costs and attorneys feed may be awarded pursuant to 42 U.S.C. \xc2\xa7 2000e-5(k)\n4. Venue properly lies in the Middle District of Florida pursuant to 28 U.S.C. \xc2\xa7\n1391(b), and 42 U.S.C \xc2\xa7 2000e-5(f)(3) because the unlawful employment\npractice was committed in this judicial district.\nConditions Precedent\n5. Plaintiff, Cordero, has fulfilled all conditions precedent to the institution of\nthis action under 42 U.S.C. \xc2\xa7 2000(e). A Notice of Right to Sue was issued\nby the U.S. Department of Justice on September 24, 2008, a true and correct\ncopy of which is attached as an Exhibit \xe2\x80\x9cA\xe2\x80\x9d.\nParties\n6. At all times material, Plaintiff, Cordero, was a citizen and resident of the\nUnited States, residing in Osceola County. He is Hispanic and bilingual\nspeaking English and Spanish. At all times material he was an employee of\nthe City of Kissimmee as a fitness coordinator. His natural origin is Puerto\nRican.\n7. At all times material, Defendant, City, was a municipal corporation pursuant\nto the Laws of The State located in Osceola County, Florida and authorized\nto conduct business in Florida.\n8. At all times material, Defendant, City, was an employer within the meaning\nof 42. U.S.C. \xc2\xa7 2000e, and was engaged in an industry affecting commerce,\nand upon information and belief, employed more than fifteen (15) employees\nfor each working day in each of twenty (20) or more calendar weeks in the\nthen current or preceding calendar year.\n\n58\n\n\x0cFacts\n9. Plaintiff is entitled to relief against the Defendant upon the following facts:\na. On October 18th, 2005 a staff meeting was held with the facility manager,\nGreg Smith. When evaluating a prospective employee he said: \xe2\x80\x9cWe don\xe2\x80\x99t\nhave need for bilingual help. We haven\xe2\x80\x99t needed it for 10 years and we don\xe2\x80\x99t\nneed it now. This is an \xe2\x80\x9cEnglish only\xe2\x80\x9d facility. English is the standard\nlanguage here. At no time should Spanish be spoken in the facility, amongst\nemployees or between employees and members. We don\xe2\x80\x99t want anyone to\nbe offended by people speaking Spanish around them.\xe2\x80\x9d The Plaintiff being\nHispanic responded by saying that he \xe2\x80\x9ccan\xe2\x80\x99t believe \xe2\x80\x9cEnglish only\xe2\x80\x9d policy is\na City Policy.\xe2\x80\x9d Greg Smith stated \xe2\x80\x9cWell I am the facility manager and that\xe2\x80\x99s\nthe policy I am enforcing.\xe2\x80\x9d\nb. On November 1st, 2005, at a staff meeting, Greg Smith wanted to revisit the\n\xe2\x80\x9cEnglish only\xe2\x80\x9d policy and stated that it had been decided that under no\ncircumstances is Spanish to be allowed during tours of the facility or in\ngeneral conversation between employees or with members. Greg Smith said\n\xe2\x80\x9cWe pay our employees in Dollars not pesos. I don\xe2\x80\x99t want to walk down the\nhallways and hear Spanish being spoken everywhere.\xe2\x80\x9d The Plaintiff\nresponded \xe2\x80\x9cI can\xe2\x80\x99t believe you would make a discriminatory statement like\nthat.\xe2\x80\x9d\nc. On November 2nd, 2005, Brandon called and reported to the City that the\n\xe2\x80\x9cEnglish only\xe2\x80\x9d policy was discriminatory towards Hispanics including\nhimself, in a grievance, to Personnel and was told that the information would\nbe passed on to the right person and he would be contacted.\nd. Shortly after reporting the discriminatory policy, Plaintiff realized that his\nquestioning the \xe2\x80\x9cEnglish only\xe2\x80\x9d policy was causing him problems in the\nworkplace. His performance began to be questioned. His e-mails were\n\n59\n\n\x0cignored, he was reprimanded, and he received false and derogatory\nperformance evaluations.\ne. Five weeks passed with no response to his complaint. On Dec 6th, 2005, he\ncontacted the assistant director and reported again the two instances where\nGreg Smith had made the comments on the \xe2\x80\x9cEnglish only\xe2\x80\x9d policy. Plaintiff\nwas then advised that he would be meeting with the Superintendent of\nRecreation. Time passed and the Plaintiff heard from no one.\nf. On Jan 13th, 2006, the Plaintiff contacted the EEOC and received an\nautomated response.\ng. On January 23rd, 2006, the Plaintiff submitted a grievance outlining the\nharassment he had been receiving since he reported and opposed the\n\xe2\x80\x9cEnglish only\xe2\x80\x9d policy.\nh. On Jan 25th, 2006, the Plaintiff was interviewed by the City Attorney and the\nDirector of Personnel. This interview was tape recorded and lasted for three\nhours.\nOn February 9th, 2006, the Plaintiff was interviewed again by the City\nAttorney for three hours. The points discussed the same harassment and\nretaliation issues that the Plaintiff had been complaining about since he\nquestioned and reported the \xe2\x80\x9cEnglish only\xe2\x80\x9d policy.\n\ni.\n\nj.\n\nOn April 11th, 2006, the Plaintiff was fired as a result of his opposing the\ndiscriminatory policy of \xe2\x80\x9cEnglish only\xe2\x80\x9d in the workplace.\n\nk. On May 7th, 2006, the Plaintiff filed a formal charge with EEOC.\nl.\n\nOn September 24th, 2007, the Plaintiff received a letter of Determination\nfrom The EEOC finding reasonable cause to believe that the City\n\n60\n\n\x0cdiscriminated against the Plaintiff in violation of Title VII (a copy is attached\nas Exhibit B.)\nm. On September 25th, 2008 the Plaintiff received a right to sue letter (a copy is\nattached as Exhibit A.)\nCount I\nViolation of Civil Rights Act of 1964\nRetaliation\nPlaintiff repeats and realleges paragraphs 1 through 9 as if stated herein in full.\n10. Plaintiff was terminated out of retaliation for opposing the discriminatory\nemployment practices and for participating in the investigation into his\ncomplaints of discrimination in violation of Title VII of the Civil Rights Act\nof 1964, as amended.\n11. As a direct and proximate result of the foregoing, Plaintiff has suffered, is\nnow suffering, and will continue to suffer, emotional pain and mental\nanguish. As a direct and proximate result of such actions, Plaintiff has been,\nis being, and will in the future be deprived of income in the form of wages\nand of prospective benefits due to the Plaintiff solely because of the\nDefendant\xe2\x80\x99s conduct.\n\nWHEREFORE, Plaintiff demands judgment for damages against Defendant,\nincluding but not limited to the following:\na. loss of past and future income;\nb. loss of fringe benefits;\n\n61\n\n\x0cc. a declaration that the acts and practices complained of herein are in violation\nof Title VII;\nd. enjoining and permanently restraining these violations of Title VII;\ne. directing Defendant to take such affirmative action as is necessary to ensure\nthat the effects of these unlawful employment practices are eliminated and\ndo not continue to affect Plaintiff\xe2\x80\x99s employment opportunities;\nf. reinstate Plaintiff to his position with Defendant, or reasonable front pay as\nalternative relief if an immediate promotion is not feasible until a position\nbecomes available;\ng. compensatory damages for past, present and future mental anguish, pain and\nsuffering, and humiliation caused by the intentional discrimination;\nh. awarding Plaintiff the costs of this action together with reasonable attorney\xe2\x80\x99s\nfees, as provided by \xc2\xa7 706(k) of Title VII, 42 U.S.C. \xc2\xa7 2000e-5(k);\ni.\n\ntrial by jury; and\n\nj.\n\nsuch other relief as the court deems proper.\nCount II\nViolation of the Civil Rights Act of 1964\nRace/National Origin Discrimination\n\nPlaintiff repeats and realleges paragraphs 1 through 9 as if states herein in full.\n12. Plaintiff was terminated because of his race, Hispanic, and/or because of his\nnational origin, Puerto Rican, in violation of Title VII of the Civil Rights Act\nof 1964, as amended.\n\n62\n\n\x0c13. As a direct and proximate result of the foregoing, Plaintiff has suffered, is\nnow suffering, and will continue to suffer, emotional pain and mental\nanguish. As a direct and proximate result of such actions, Plaintiff has been,\nis being, and will in the future be deprived of income in the form of wages\nand of prospective benefits due to the Plaintiff solely because of the\nDefendant\xe2\x80\x99s conduct.\nWHEREFORE, Plaintiff demands judgment for damages against Defendant,\nincluding but not limited to the following:\na. loss of past and future income;\nb. loss of fringe benefits;\nc. a declaration that the acts and practices complained of herein are in violation\nof Title VII;\nd. enjoining and permanently restraining these violations of Title VII;\ne. directing Defendant to take such affirmative action as is necessary to ensure\nthat the effects of these unlawful employment practices are eliminated and\ndo not continue to affect Plaintiff\xe2\x80\x99s employment opportunities;\nf. reinstate Plaintiff to his position with Defendant, or reasonable front pay as\nalternative relief if an immediate promotion is not feasible until a position\nbecomes available;\ng. compensatory damages for past, present and future mental anguish, pain and\nsuffering, and humiliation caused by the intentional discrimination;\nh. awarding Plaintiff the costs of this action together with reasonable attorney\xe2\x80\x99s\nfees, as provided by \xc2\xa7 706(k) of Title VII, 42 U.S.C. \xc2\xa7 2000e-5(k);\n\n63\n\n\x0ci.\n\ntrial by jury; and\nj.\n\nsuch other relief as the court deems proper.\n\nPermission to reprint this pleading is provided by Neil Chonin and David Chonin\nComplaint 2\nIN THE UNITED STATES DISTRICT COURT\nFOR THE NORTHERN DISTRICT OF GEORGIA\nNEWNAN DIVISION\n\nSUSAN PITTS,\n\n*\n*\n\nPlaintiff\n\n*\n*\n\nVS.\n\n*\n*\n\nROBERT G. HEMKER, and\n\n*\n\nCOMANCHE CONSTRUCTION,\n\n*\n\nINC. OF GEORGIA,\n\n*\n*\n\nDefendants\n\n*\n\n64\n\nCIVIL ACTION NUMBER:\n3 07-CV-093-JTC\n\n\x0cComplaint for Damages\nComes now Susan Pitts, as Plaintiff, who respectfully shows the Court and Jury as\nfollows:\nJurisdiction and Venue\n\n1.\n\nPlaintiff is resident of the State of Alabama.\n\n2. Defendant Robert G. Hemker [herein \xe2\x80\x9cDefendant Hemker\xe2\x80\x9d] is a resident of\n6320 Whirlaway Drive, Cumming, Forsyth County, Georgia.\n3. Comanche Construction, Inc. of Georgia [herein \xe2\x80\x9cDefendant Comanche\xe2\x80\x9d] is\na Georgia business corporation with its principal office at 1734 Sands Place,\nSE, Marietta, Georgia, and its registered agent for service at such address is\nLyle J. Austin.\n4. The jurisdiction of this court over the subject matter of this action is\npredicated upon 28 USC Section 1332. The amount in controversy exceeds\nSeventy Five Thousand [$75,000.00] Dollars, exclusive of interest and costs.\n5. This action arises from a vehicle collision which occurred in Troup County,\nGeorgia. Venue is based in The Newnan Division of The Northern District\nOf Georgia under 28 USC 1391(a)(2) because the events which gave rise to\nthis action occurred in Troup County, Georgia.\nGeneral Operative Facts\n6. On Wednesday, November 30, 2005, Plaintiff was injured when her vehicle\nwas struck from the rear by vehicles driven by Defendant Hemker and by\n\n65\n\n\x0cJacelyn Lachristian Reese as she drove her vehicle through a work site in\nInterstate Highway 85 in Troup County, Georgia. The construction at the\nwork site was being performed by Defendant Comanche.\nSpecific Operative Facts\n\n7. On the date of the collision, Defendant Comanche was engaged in hydro\nblasting the bridge deck below the top mat of steel and replacing it with new\nconcrete at the bridge on the Georgia-Alabama line on Interstate Highway 85\nin Troup County, Georgia under a contract with The Georgia Department of\nTransportation. [Project Number CSNHS-M002-00(782)01]\n8. At the immediate work site over the bridge, Defendant Comanche had\nerected barricades to limit travel to one lane as it passed the construction site.\n9. Defendant Comanche negligently and carelessly allowed excess water and\nother materials to accumulate and cover the one lane of travel allowed for\nvehicles approaching and passing through the construction site.\n10. As Plaintiff approached the work site in the one lane of travel, the vehicle in\nfront of her began to skid due to a large amount of water and other materials\nwhich Defendant Comanche had allowed to flow from the work site onto\nthe lane of travel. Plaintiff slowed her automobile but, as Plaintiff entered\nthe area of the lane of travel covered with water, Plaintiff\xe2\x80\x99s vehicle also began\nto skid, forcing Plaintiff to come to a stop to avoid sliding past the barricades\nand into the work site. At all times relevant to this action, Plaintiff was\ndriving at a reasonable and safe speed for the conditions and under the\ncircumstances then existing.\n\n66\n\n\x0c11. As Plaintiff brought her vehicle to a stop, her vehicle was struck in the rear\nby the Hemker and Reese vehicles as set forth in Paragraph 6 of this\nComplaint.\n12. As a result of the collisions, Plaintiff received both temporary and permanent\ninjuries to her neck, back, shoulders, and other parts of her body.\n\nSpecific Allegations of Negligence\n\nNegligence of Defendant Hemker\n13. Defendant Hemker was negligent in following Plaintiff\xe2\x80\x99s vehicle too closely\nin violation of Official Code of Georgia Annotated \xc2\xa7 40-6-49.\n14. Defendant Hemker was negligent in driving at a speed greater than was\nreasonable and prudent under the conditions and having regard for the actual\nand potential hazards then existing in violation of O.C.G.A. \xc2\xa7 40-6-180.\nNegligence of Defendant Comanche\n15. Defendant Comanche was negligent in closing lanes of traffic and limiting\ntraffic to one lane of travel during weekdays in violation of Section 150.11\n[Special Conditions] of its contract with the Georgia Department of\nTransportation. The contract provides that work at the site involved in this\ncomplaint was to be performed only between the hours of 9:00 p.m. on\nFriday through 5:00 a.m. on Monday. This collision happened on\nWednesday between the hours of twelve noon and one o\xe2\x80\x99clock p.m.\n\n67\n\n\x0c16. Defendant Comanche was negligent in allowing excess amounts of water\nand/or slick material to enter and coat the only lane open for travel and the\nlane required for travel by the Plaintiff.\n17. Defendant Comanche was negligent in failing to warn approaching traffic of\nthe special hazardous conditions existing in the one open lane adjacent to the\nwork site.\n18. Defendant Comanche was negligent in maintaining a 12 foot clearance on\ntravel instead of a 16 foot clearance as required by the contract.\n19. Defendant Comanche was negligent in using the wrong advance warning\nsigns for this work site. Defendant Comanche used Georgia Standard 9104\nfor lane closure as show on its plans TC-3, but Georgia Standard 9104 was\nneither appropriate for this work site nor approved for use by the contract\nwith the Georgia Department of Transportation.\n20. Defendant Comanche failed to have proper signage on the approaches to the\nwork site as required by the contract with the Georgia Department of\nTransportation.\nDamages\n21. As stated above, the Plaintiff sustained temporary and permanent injuries to\nher neck, back, shoulders, and other parts of her body as a result of the\ncollision. Plaintiff has required medical treatment, including surgery to her\nshoulder, and has incurred medical expenses in excess of $20,000.00.\n22. The Plaintiff will continue to incur medical bills in the future as a result of\nthe collision.\n\n68\n\n\x0c23. The Plaintiff has sustained a loss of her future capacity to labor and earn\nincome as an item of general damages due to the injuries she received in this\ncollision.\n24. The Plaintiff has lost income in the past and will lose income in the future as\na result of the injuries she received in the collision. At the time of the\ncollision, Plaintiff was employed as a police sergeant with the Emory\nUniversity Police Department in Atlanta, Georgia earning $22.09 per\nhour. Plaintiff has lost wages in excess of $75,000.00 since the date of the\ncollision and due to the injuries she received in the collision.\n25. Plaintiff seeks compensatory damages in the form of special and general\ndamages for the pain and suffering she has endured for the injuries described\nin the preceding paragraphs.\n26. All of the injuries and damages sustained by the Plaintiff were the direct and\nproximate result of the negligence of the Defendants,\nWHEREFORE, Plaintiff demands:\na. That summons issue requiring the Defendants to appear as provided by law\nand answer this complaint;\nb. That Plaintiff have and recover of each of the Defendants damages for all\nher injuries in such amount as the jury shall deem just and adequate to fully\ncompensate Plaintiff for all her injuries, past and future according to the\nproportionate fault as determined by the jury under O.C.G.A. \xc2\xa7 51-12-50;\nc. That Plaintiff have and recover of the Defendants special damages for her\nmedical expenses, past and future, as set forth in this complaint and as\nshown by the evidence;\n\n69\n\n\x0cd. That Plaintiff have and recover of the Defendants special damages for her\nlost wages as set forth in this complaint and as shown by the evidence;\ne. That Plaintiff have and recover of the Defendants general damages for her\nlost capacity to labor and earn income as set forth in this complaint;\nf. That Plaintiff have and recover of the Defendants general damages for pain\nand suffering, both past and future, for her temporary and permanent injuries\nreceived as a result of the negligence of the Defendants;\ng. That Plaintiff have trial by jury;\nh. That all costs be taxed against the Defendants; and\ni.\n\nThat Plaintiff have such other relief as the Court deems proper.\n\nPermission to reprint this pleading is provided by J. Anderson Harp\nAt the beginning of this section, you drafted a complaint in the Branham slip-and-fall\ncase. In all likelihood, the complaint you drafted was quite similar to the one actually\nfiled in the case, which you have seen by now.\nYou have now been given the motion to dismiss and the supporting memorandum\nof law filed by the defendant in the case. The motion argues that the plaintiff\xe2\x80\x99s\ncomplaint does not comply with Twombly and Iqbal.\n1. Read it and see whether you agree before reading the judge\xe2\x80\x99s ruling.\n2. If you represented the plaintiff, how would you respond?\n3. How should the judge rule?\n4. Also, take note of the form of the filings. This is what court documents\ntypically look like, and these kinds of documents are often drafted and filed\nby recent law school graduates.\n\n70\n\n\x0cNow read the opinion in the case.\n1. Do you agree with the judge\xe2\x80\x99s ruling?\n2. What additional facts would the plaintiff need to plead in order to pursue her\ncase?\n3. Is the plaintiff likely to be in possession of those facts? If not, how might she\ngo about getting them? Does the fact that she does not necessarily have\naccess to them make her case any less likely to be meritorious?\n4. What does this say about the Plausibility standard?\n\n71\n\n\x0c'