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« Sprint/United Management Co. V. Mendelsohn: The Supreme Court Appears to Have Punted on the Admissibility of “Me Too” Evidence of Discrimination. But Did It? | Main | Administrative Note: Finals »

April 21, 2008


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I take issue with the statement that: "This makes sense because it has long been understood that Rule 8 requires pleadings to contain allegations in support of each material element of a claim."

Pleading all elements of a claim was not the law before Twombly, and is not the law even after Twombly, which required something short of that standard.

Indeed, the fact that one need not plead all elements was emphatically reiterated in the 7th Circuit just before Twombly was announced by Judge Easterbrook in Vincent v. City Colls. of Chicago, 485 F.3d 919, 923 (7th Cir. 2007) ("Any decision declaring ‘this complaint is deficient because it does not allege X’ is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b).")

Similarly, as the Twombly court notes at slip op 23: "Swierkiewicz v. Sorema N. A., 534 U. S. 506, 508 (2002) . . . held that "a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973)." And, the Twombly court makes clear that is is not reversing that holding.

The distinction Twombly seems to make is not over how many facts must be provided, but their quality.

Twombly at slip op. 8 gets to the heart of the matter in "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations . . . a plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do, see Papasan v. Allain, 478 U. S. 265, 286 (1986) (on a motion to dismiss, courts "are not bound to accept as true a legal conclusion couched as a factual allegation").

The allegations in the anti-trust case fail not because elements are omitted but because the phrases offered aren't factual enough to constitute facts.

As the Twombly court explains at slip op. 24: ""we do not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face."

Erickson v. Pardus underlined the notion that as long as on is speaking the language of facts and not mere conclusions of law disguised as facts, that one need not be too specific and detailed to state a claim that withstands Rule 12.

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