Note: Between the Possible and the Probable: Defining the Plausibility Standard After Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal

By Nicholas Tymoczko. Full text here.

After fifty years of clarity and continuity, pleading standards are now the subject of confusion and debate. In 2007, the Supreme Court, in Bell Atlantic Corp. v. Twombly, replaced Conley v. Gibson’s “no set of facts” standard with the plausibility standard, under which a complaint must contain enough factual allegations to state a claim that is plausible on its face. Two years later, Ashcroft v. Iqbal confirmed that the plausibility standard is a trans-substantive pleading standard applicable to all claims brought in federal court, but did little to clarify the meaning of “plausibility.” As a result, plaintiffs must meet and courts must apply a vague and indeterminate standard that has generated a variety of conflicting interpretations. Moreover, because both Iqbal and Twombly have language suggesting that the plausibility standard significantly raised the pleading bar, there is a risk that courts will read the opinions as imposing a stringent merits determination at the pleading stage, thereby unsettling years of pleading jurisprudence that has not been repudiated. Rather than embrace the most extreme aspects and language of these opinions, this Note seeks to develop a definition of “plausibility” that explains the results of Iqbal and Twombly, preserves the basic tenets of simplified pleading, and brings clarity to the keystone of the federal procedural system. It first undertakes a comprehensive survey of the post-Twombly definitions of “plausibility.” Although these definitions provide useful guidance in defining “plausibility,” standing alone they are incomplete. It then argues that plausibility is best understood as a minimal standard independent of notice and requiring only that a complaint support the reasonable inference that the plaintiff has a viable claim.