Iqbal Task Group Chart - PrawfsBlawg - [PDF Document] (2024)

Pretrial Practice & Discovery Committee of the ABA Litigation Section Iqbal Task Group Chart of Cases Case Name Citation Court Date Circuit Description of

Causes of Action Outcome Summary of Court’s Analysis Pro Se?

(Y/N) Particular Issues of Interest

Task Group Member

Tony Colida v. Nokia, Inc.

Case No. 2009-1326 (slip op.)

United States Court or Appeals for the Federal Circuit

October 6, 2009

Fed. Cir.

Patent Infringement – patents claim designs for

Affirmed district court’s order dismissing complaint and imposing permanent anti-filing injunction

Citing Iqbal for proposition that a complaint must have sufficient “facial plausibility” to permit the inference that the defendant is liable, court found that the plaintiff’s “infringement claims were facially implausible and provided the district court with no basis on which to reasonable infer that any ordinary observer would confuse the pleaded patented designs with the accused Nokia 661 phone.”

Y In a footnote, the court noted that plaintiff did not argue that his complaint was sufficient under Fed.R.Civ.P. 84 and Form 18, observing that while Form 18 is a sample pleading for patent infringement it “was last updated before the Supreme Court’s Iqbal decision.” This raises the question whether the form pleadings attached in the Appendix to the Civil Rules meet the standard articulated in Iqbal and Twombly and continue, as stated in Rule 84 to “suffice” under Rule 8(a) and 12(b)(6).

Mark Phillips

Ye v. Holder 644 F.Supp.2d 112

District Court, D.C.

8/13/09 D.C. Cir.

Assault & Battery Discrimination on the basis of race or national origin False arrest and false imprisonment Malicious prosecution IIED Trespass to chattels and conversion Defamation Civil Fraud Civil Conspiracy

As to all defendants, claims pursuant to 18 U.S.C. §§241, 242, 28 U.S.C. §1443, 42 U.S.C. §1982 dismissed with prejudice; claims pursuant to 42 U.S.C. §§1985, 1986 dismissed

Plaintiff (an attorney) represented a criminal defendant; at a status conference, Court considered questions of plaintiff’s current admission status, and instructed plaintiff to not address the Court. During a recess, plaintiff observed a defendant in criminal matter remove items from plaintiff’s bag. Plaintiff subsequently attempted to alert the Court, and was removed by Marshals. Plaintiff claimed Marshals beat, kicked and choked him, handcuffed and left him in a cell for over 2 hours. Plaintiff subsequently indicted for assaulting, resisting, or impeding US Marshals in performance of their duties.

Y Naked/indefinite assertions, conclusory allegations, pleading requirement to offer more than ‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action.’

Jessica Supernaw, Alston & Bird LLP

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Case Name Citation Court Date Circuit Description of Causes of Action

Outcome Summary of Court’s Analysis Pro Se? (Y/N)

Particular Issues of Interest

Task Group Member

Negligent Supervision 42 U.S.C. §§1981, 1982, 1983, 1985, 1986; 18 U.S.C. §§241, 242; 28 U.S.C. §1443

without prejudice; as to one defendant, all claims dismissed and motion to strike granted. Plaintiff’s motion for default, motion to strike denied; motion to amend granted.

Plaintiff brought this civil action, federal defendants moved to dismiss for improper service, and individual defendant (Amato) moved to dismiss for failure to state a claim. The District Court noted that it could choose to begin by identifying the allegations not entitled to the assumption of truth because they are nothing but conclusions, and the courts need not accept naked assertions devoid of further factual enhancement or legal conclusions in the form of factual allegations. The District Court dismissed all but one (which was unaddressed by Amato, and thus not dismissed) defamation claim, holding the statements were not defamatory. It continued, dismissing the civil conspiracy claims against all defendants under 42 U.S.C. §1985 as nothing but conclusory allegations, “amount[ing] to nothing more than a ‘formulaic recitation of the elements’” (citing Iqbal. The claims under 28 U.S.C. §1443, 18 U.S.C. §§241 and 242 were dismissed because they do not support a private cause of action. Claims under 42 U.S.C. §1982 were dismissed because no allegations in the complaint support such an allegation. The actions under 42 U.S.C. §1986 were dismissed because such claims require a valid claim under §1985, which was also dismissed. Remaining allegations against Amato were dismissed against Amato as they did not “plead [] factual content that allows the court to draw the reasonable inference that Amato is liable for the misconduct alleged.” (quoting Iqbal).

Tooley v. Napolitano

2009 WL 3818372

D.C. Cir. Nov. 17, 2009

D.C. Cir.

Infringement of Fourth Amendment

All claims dismissed with

In 2002 the Plaintiff, while speaking to a customer service representative for

Y Dismissal based on “patent insubstantiality”; extension

Michael Oliverio, Paul

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Case Name Citation Court Date Circuit Description of Causes of Action

Outcome Summary of Court’s Analysis Pro Se? (Y/N)

Particular Issues of Interest

Task Group Member

Rights and Constitutional Right-To-Privacy; Violation of First Amendment Rights due to retaliation claim; declaratory judgment sought pursuant to rejection of plaintiff’s FOIA requests.

prejudice. Southwest Airlines, complained about the airline’s failure to screen 100% of all baggage that was loaded into planes. When asked why he felt such steps were necessary, he replied that it made the airlines less safe because of the potential that someone could “put a bomb on a plane.” According to plaintiff the Southwest representative became extremely alarmed and repeatedly said “you said the ‘b’ word, you said the ‘b’ word” before placing him on hold indefinitely, after which he eventually hung up. Plaintiff alleged that thereafter that he began experiencing problematic connections with his home phones, including tell-tale clicking noises which he believes indicated his phones had been tapped. He also alleged that the government used Radio Frequency Identification Tags (RFIT’s) to monitor his vehicle movements and subjected he and his wife to “round-the-clock surveillance.” The Plaintiff submitted several requests under FOIA regarding these alleged monitoring activities, all of which were rejected. The D.C. Circuit upheld the dismissal of all the plaintiff’s claims on grounds “distinct from but not inconsistent with the holding in Iqbal.” The Court ruled that the plaintiff’s claims were so fantastical as to be “essentially fictitious” and “patently insubstantial.”

of argument made by Justice Souter in dissent in Iqbal that “the sole exception to th[e] rule [that allegations must be credited at the pleading state applies to] allegations that are sufficiently fantastic to defy reality as we know it: claims about little green men, or the plaintiff’s recent trip to Pluto, or experiences in time travel.” as basis for dismissal. Dismissal appropriate on alternative jurisdictional grounds, without need for a standings analysis, when it is “‘patently insubstantial’ presenting no federal question suitable for decision.”

Hastings Janofsky & Walker LLP

Mitchell v. Federal Bureau of Prisons

2009 WL 3878148

D.C. Cir. Nov. 20, 2009

D.C. Cir.

Claim challenging condition of incarceration under 5 U.S.C. §552a, the Privacy Act. Issue on Appeal was

Plaintiff barred from proceeding with his claim IFP.

Plaintiff, a convicted felon in custody, challenged his transfer to a maximum security prison on the basis that he would be attacked there and that prison officials would not properly treat his Hepatitis B & C. Plaintiff, who has previously filed some 65

Y Court refused to apply Iqbal standard to decision of whether or not to allow Plaintiff to proceed In Forma Pauperis.

Michael Oliverio, Paul Hastings Janofsky & Walker LLP

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Case Name Citation Court Date Circuit Description of Causes of Action

Outcome Summary of Court’s Analysis Pro Se? (Y/N)

Particular Issues of Interest

Task Group Member

whether Plaintiff could proceed In Forma Pauperis under the PLRA, 28 U.S.C. §1915(g).

other legal challenges to his incarceration, sought to proceed IFP but was denied by the District Court under the “three strikes” rule in the PLRA. The Circuit Court held that the prisoner did not have “three strikes” under the PLRA, but that he was nevertheless barred from proceeding IFP because of a track record of “abuse” of the legal process. The government sought to have the prisoner’s petition to proceed IFP reviewed under the Iqbal standard, but the Court refused to apply Iqbal to IFP decisions. The Court stated that IFP decisions are nonadversarial and implicate none of the concerns articulated in Iqbal, and thus that the decision did not apply.

Ekwam v. Fenty

2009 WL 3462327

D.C. Cir. 10/29/09 D.C. Cir.

Violation of freedom of speech rights under First Amendment, Fifth Amendment, Due Process and Equal Protection clauses of Fourteenth Amendment, 42 U.S.C. §§1983 and 1985(3), a consent decree under which DC manages the CFS Agency, common law and DC Code.

Dismissed federal claims, declined to exercise supplemental jurisdiction over state law claims.

Plaintiff, a DC CFS employee sued DC Mayor and DC after being suspended from position without pay and without hearing. Plaintiff was a supervisor of more caseworkers than any other supervisor, and caseworkers were assigned well over the number of cases pursuant to a consent decree under which DC manages the CFS Agency. In two independent cases, children whose cases were assigned to plaintiff’s caseworkers were found dead, and plaintiff was first placed on paid administrative leave then suspended without pay. The District Court dismissed claims against the Mayor individually because plaintiff did not allege the Mayor had personal knowledge or condoned conduct that led to suspension. The Court dismissed the Fifth Amendment Liberty Interest/§1983 claim and violation of protected property interest under Due Process Clause because plaintiff’s allegations did not

N Conclusory allegations, well-pleaded factual allegations, discrimination

Jessica Supernaw, Alston & Bird LLP

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Case Name Citation Court Date Circuit Description of Causes of Action

Outcome Summary of Court’s Analysis Pro Se? (Y/N)

Particular Issues of Interest

Task Group Member

meet the elements of the claims. The Court dismissed plaintiff’s Equal Protection claim because he did not allege facts that “plausibly give rise to an entitlement to relief” (quoting Iqbal), and the allegations were conclusory without sufficient factual support, and “stops short of the line between possibility and plausibility of entitlement to relief.” Plaintiff also failed to allege any facts to support the claim of racially discriminatory policy or practice, but for a single conclusory statement. The Court dismissed the First Amendment claims as plaintiff’s statements, to management, were made in his official capacity, not as a citizen, and thus not eligible for such a claim. The Fourteenth Amendment claim was dismissed as it does not apply to DC or its employees and officials. The §1985(3) claim was dismissed as plaintiff did not support his claim with Iqbal’s required “well-pleaded factual allegations.” Plaintiff’s claim under the consent decree were dismissed as plaintiff could not show that the decree was intended to directly confer a benefit upon him or that it was intended he be able to sue to protect such a benefit. The Court declined to expand jurisdiction over the DC law claims.

Atherton v. District of Columbia Office of Mayor

567 F.3d 672 D.C. Cir. June 2, 2009

D.C. Cir.

Equal protection, Section 1983, Section 1985, Section 1986, due process, fraud

All claims dismissed, except due process remanded

Plaintiff claimed that he was discriminated against for being Hispanic when he was dismissed from grand jury service. Plaintiff alleged that he thanked a witness in Spanish, was the only Hispanic on the jury, and that the attorneys conspired to remove him. The Court noted that a pro se complaint must be held to less stringent standards than formal pleadings drafted by lawyers, but even a pro

Y (in district court); N (in appellate court)

A pro se plaintiff must plead factual matter than permits the court to infer “more than the mere possibility of misconduct.”

Maggie Sklar, Greenberg Traurig LLP

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Case Name Citation Court Date Circuit Description of Causes of Action

Outcome Summary of Court’s Analysis Pro Se? (Y/N)

Particular Issues of Interest

Task Group Member

se complainant must plead factual matter that permits the court to infer “more than the mere possibility of misconduct.” In reversing the district court’s finding that Plaintiff sufficiently pled his equal protection claim, the Court relied on Iqbal to find his facts “spare” and to hold that the complaint and supporting materials did not permit the court to infer more than the mere possibility of misconduct.

Baumel v. Syrian Arab Republic

2009 WL 3583510

D.C. Cir. Nov. 3, 2009

D.D.C. Claims for battery, assault, false imprisonment, economic damages, intentional infliction of emotional distress, loss of solatium, and punitive damages were brought against Syria pursuant to an exception to the Foreign Sovereign Immunities Act ("FSIA"), 28 U.S.C. § 1602 et seq.

All claims dismissed

Plaintiffs, a United States citizen's parents and siblings, brought an action against, inter alia, Syria, alleging the citizen was captured while serving in the Israeli Defense Forces Armored Corps during the war between Israel and Syria. Plaintiffs asserted claims arising from alleged hostage-taking and torture. The captured solider had not been seen by anyone in Israel, the Red Cross, or his family since the date of his capture. The Court granted Syria’s motion to dismiss because Plaintiff’s factual allegations that the captured soldier had been tortured by the Syrian government, or was even alive, were based “upon information and belief,” and amounted to rank speculation.

N Court dismissed case where the most important facts were alleged “upon information and belief.”

Maggie Sklar, Greenberg Traurig LLP

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Sisney v. Best 754 N.W. 2d

804S.D. Supreme Court

7/23/08 N/A 42 U.S.C. § 1983, 1985 and state law claims

Dismissal in part

State inmate sued prison food-service contractors for failure to provide kosher food in violation of religious rights. Federal claims against Best were dismissed as untimely. Federal claims against other providers were dismissed for failure to adequately allege sufficient facts even under pre-Twombly standard. Conspiracy claim dismissed for failure to adequately plead a conspiracy. Inmates deceit claim survived dismissal.

Y Adopted Twombly standard for motion to dismiss

Carrie Zochert

Soukup v. Garvin

2009 WL 2461687

D.N.H. 8/11/09 1st Cir. 42 U.S.C. § 1983 claim against a municipality

Motion for Judgment on the Pleadings Granted

Plaintiff was arrested and charged with disorderly conduct and with violating bail conditions after an encounter with his neighbor. He sued the arresting officer, the Town of Lisbon, alleging violations of his civil rights. The Town of Lisbon moved for judgment on the pleadings. Applying Iqbal, the Court held that though the complaint alleged a constitutionally violative policy or custom as is required under section 1983, it had insufficient factual specificity to satisfy Rule 8.

N Bahar Azhdari, Waller Lansden Dortch & Davis

Ocasio-Hernandez v. Fortuno-Burset

639 F. Supp. 2d 217

D.P.R. 8/4/09 1st Cir. Civil Rights, 42 U.S.C. § 1983

Dismissal Fourteen former maintenance and domestic employee’s of the Governor’s mansion filed an amended complaint against several defendants claiming they were terminated because of their political affiliation. The Court granted the defendants’ motion to dismiss all federal and supplemental claims with prejudice. In a footnote, the Court called its own ruling “draconianly harsh to say the least,” but it was mandated by Iqbal. The original complaint filed before Iqbal met the pre-Iqbal pleadings standard under Fed. R. Civ. P 8, and the defendants did not move to dismiss it. According to the Court, “even highly experienced counsel will henceforth

N The Court stated that now counsel in political discrimination cases will be forced to file in Commonwealth court, where Iqbal does not apply and post-complaint discovery is available. Additionally, the Court warned that counsel will likely only raise local law claims to avoid removal to federal court where Iqbal will “sound the death knell. Certainly, such a chilling effect was not intended by

Bahar Azhdari, Waller Lansden Dortch & Davis

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find it extremely difficult, if not impossible, to plead a section 1983 political discrimination suit without ‘smoking gun’ evidence.” 639 F. Supp. 2d at 226 n.4.

Congress when it enacted Section 1983.” 639 F. Supp. 2d at 226 n.4.

Maldonado v. Fontanes

568 F.3d 263

1st Cir. 6/4/2009 1st Cir. Civil Rights, 42 U.S.C. § 1983

Dismissal Plaintiffs sued mayor of town in Puerto Rico regarding alleged unlawful seizure of pet animals in violation of their Fourth Amendment right to be free from unreasonable seizures and their Fourteenth Amendment right procedural and substantive due process rights. The mayor moved to dismiss on the grounds of qualified immunity. The District of Puerto Rico denied the motion. On appeal, the First Circuit reversed the decision of the District Court as to the Fourteenth Amendment claim. The court applied Iqbal and concluded that only conclusory allegations were alleged that would establish liability on the part of the mayor for the Fourteenth Amendment claim.

N The first time the First Circuit applied the Iqbal decision.

Ray Ripple, Edwards Angell Palmer & Dodge LLP

K&S Servs., Inc. v. The Schulz Elec. Group of Cos.

2009 WL 4019805

D. Me. 11/20/09 1st Cir. Breach of Contract Partial Dismissal

Plaintiff filed a breach of contract claim against the Schulz Group and Robert Davis. Each party filed a separate motion to dismiss. The Court granted the Schulz Group’s motion finding it was not a legal entity. Davis’ motion to dismiss was denied, however, because Plaintiff was able to state a plausible cause of action, which was all that was required, under Iqbal.

N Bahar Azhdari, Waller Lansden Dortch & Davis

Cortelco Sys. of P.R., Inc. v. Phoneworks, Inc.

2009 WL 4046794

D.P.R. 11/20/09 1st Cir. Antitrust, Breach of Contract

Motion to Dismiss Granted

Plaintiff brought a suit against a rival telephone company alleging that the rival wanted to purchase shares of Plaintiff to monopolize the public telephone system in PR. Applying Iqbal to the Complaint, the Court found the Complaint lacking in relevant and material factual allegations. The Court held that Plaintiff’s allegations were mere conjecture and irrelevant states or unsupported conclusions of law and

N Bahar Azhdari, Waller Lansden Dortch & Davis

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dismissed the Clayton Act claims with prejudice.

Chiang v. Skeirik

582 F.3d 238

1st Cir. 9/28/09 1st Cir. Civil Rights, Bivens claims

Dismissal Plaintiff brought suit against the United States alleging that the Department of Homeland Security denied his application for a visa for his Chinese fiancée in violation of his constitutional rights. As part of the claims, Plaintiff alleged that government officials appropriated his immigration documents without permission. On appeal, the First Circuit affirmed the dismissal of the claims. The Court applied Iqbal and held that the Plaintiff’s allegations were conclusory in nature and merely contained threadbare recitals of the elements of the cause of action.

N Ray Ripple, Edwards Angell Palmer & Dodge LLP

Chao v. Ballista

630 F. Supp. 2d 170

D.Mass. 7/1/09 1st Cir. Civil Rights, 42 U.S.C. § 1983

Motion to Dismiss Denied

Plaintiff brought suit against prison officials alleging that they failed to properly investigate and protect her from abuse by prison guard. Defendants filed a motion to dismiss arguing, inter alia, that Plaintiff failed to adequately plead their personal involvement and the allegations amounted to nothing more than conclusory allegations that they failed to train, supervise, and investigate rumors of misconduct. In ruling that the Complaint adequately alleged the defendants’ personal involvement, the court discussed Iqbal at length. The court noted that “plausibility is a relative measure.” An analysis as to whether a plaintiff’s allegations are conclusory “depends on the full factual picture, the particular cause of action, and the available alternative explanations.” The court further held that “a complaint should only be dismissed at the pleading stage where the allegations are so broad, and the alternative

N Ian Fisher, Schopf & Weiss

DRAFT as of 1/6/2010 9

explanations so overwhelming, that the claims no longer appear plausible.” 630 F. Supp. 2d at 177.

Alston v. Commonwealth of Massachusetts

2009 WL 3261921

D.Mass. 10/14/09 1st Cir. Title VII, 42 U.S. C. § 1981, state anti-discrimination laws

Dismissal After failing the state teacher licensure exam, Plaintiffs brought suit against the Commonwealth of Massachusetts alleging discrimination. Defendant moved to dismiss and argued that Plaintiffs’ Complaint failed to state a claim upon which relief could be granted. The court dismissed the Plaintiffs’ complaint, in part, relying on Iqbal. The court noted that “[w]hat is clear from Twombly and Iqbal is that a plaintiff cannot get beyond the pleadings stage by simply arguing that the law has been broken without some alleged facts to stand behind [the] legal claims. . . . [Plaintiffs] provide no facts to back up the legal claims, thus lacking the factual enhancement critical to a properly pleaded complaint. Both Twombly and Iqbal instruct that the claims be dismissed in such a scenario.” 2009 WL 3261921 at *6.

N Ray Ripple, Edwards Angell Palmer & Dodge LLP

Willey v. J.P Morgan Chase

2009 WL 1938987 (S.D.N.Y)

S.D.N.Y 07/07/09 2nd Cir. Fair Credit Reporting Act, 15 U.S.C. §1681w.

Dismissal Plaintiff, a Circuit City – Chase credit card holder, alleged that Chase violated § 1681w of the FCRA when it accidentally threw out and destroyed his personal information. The relevant standard here was whether or not Chase had “adopted and implemented the comprehensive security program envisioned by the OCC’s [Office of the Comptroller of the Currency] regulations.” The court cited the plausibility standard from Iqbal in dismissing the plaintiff’s claim for lack of sufficient specific factual allegations with respect to an OCC regulation violation. The court noted that “…without providing a factual basis, [the plaintiff] appears to assert

N General application of the Iqbal standard.

Simpson Thacher & Bartlett LLP

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that a violation of the FCRA must have occurred simply because the data loss incident occurred. That sort of ipse dixit pleading is insufficient.” Under Iqbal, the court continued, “conclusory statements unsupported by factual allegations [cannot] subject a defendant to the burdens of discovery.”

Willets Point Industry and Realty Ass’n v. City of New York

2009 WL 4282017

E.D.N.Y. 11/25/09 2nd Cir. Civil Rights, 42 U.S.C. § 1983

Plaintiffs allege violations of their equal protection and due process rights by the city’s refusal to provide services and infrastructure to a specific area, which they allege is refused to depress property values to give the City an economic advantage when exercising its right of eminent domain. The court rejects plaintiffs’ equal protection class-of-one claim because they did not “plausibly establish that a rational basis is lacking for the alleged disparate treatment . . . or that it was motivated by a malicious intent to injure plaintiffs” and adds that there are “more likely explanations” for the city’s actions. This conclusion is “supported strongly by the fact that the City's conduct is subject only to rational basis review.”

N Relationship between “alternative explanations” considered under Iqbal and rational basis review for Equal Protection analysis.

Mor Wetzler & Carla Walworth at Paul, Hastings, Janofsky & Walker LLP

Wiese v. Kelley

2009 WL 2902513 (S.D.N.Y)

S.D.N.Y 09/10/09 2nd Cir. Civil rights, 42 U.S.C. § 1983

Dismissal Plaintiff alleged that Defendant violated his Due Process rights by making certain statements public during the course of his termination. A journalist used these statements in articles where he also made unflattering comments about the plaintiff. The court dismissed the plaintiff’s claim because the plaintiff’s allegations “that Defendant intended to destroy Plaintiff’s future by providing information to [the journalist] for republication” were not consistent with Iqbal’s plausibility requirement. The court went on to say that the plaintiff failed “to articulate any factual

N General application of the Iqbal standard.

Simpson Thacher & Bartlett LLP

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basis for [the defendant’s] communication with” the newspaper writer. As a result, the court refused to hold the defendant responsible for the journalist’s comments.

Slelevan v. N.Y. Thruway Auth.

584 F.3d 82 2nd Cir. 10/15/09 2nd Cir. Civil Rights, 42 U.S.C. § 1983

Reverse dismissal of all but one claim

Plaintiffs brought a putative class action challenging an interstate highway toll policy that afforded a discount to residents of a particular New York municipality. The district court (N.D.N.Y.) dismissed for lack of standing and failure to state a claim. The Court applied Iqbal as its standard of review, stating that it “need only consider whether the complaint alleges a plausible claim” and that it is required to assume all “well-pleaded factual allegations” in assessing whether the allegations plausibly give rise to an entitlement to relief. The Court added that it is still to “construe plaintiffs’ complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in plaintiffs’ favor.” Applying this standard, the Court found the allegations sufficient and reversed all but one of the district court’s dismissals. The Court affirmed only the district court’s dismissal of a challenge by U.S. citizen residing in Canada to the toll policy under the Privileges and Immunities Clause of Article IV.

N Application of Iqbal as standard of review, and reversal of dismissals

Mor Wetzler & Carla Walworth at Paul, Hastings, Janofsky & Walker LLP

Kregler v. City of New York

646 F. Supp. 2d 570

S.D.N.Y 08/17/09 2nd Cir. Civil rights, 42 U.S.C. § 1983

Dismissal Plaintiff alleged that Defendants failed to hire him for a job after he publicly endorsed a candidate for district attorney, thereby violating his rights under the First and Fourteenth Amendments. Taking language from Iqbal, the court called the plaintiff’s allegations “‘threadbare recitals’ of the elements of the cause of action ‘supported by mere conclusory statements.’ ” The court explained that the plaintiff’s complaint contained no factual allegations about the

N Illustrative of the difference between “possibility” and “plausibility” under Iqbal.

Simpson Thacher & Bartlett LLP

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defendants’ direct knowledge of his endorsem*nt or any personal involvement in his application’s rejection. As such, the court declined to accept his pleadings as true and stated that even if they were “credited to some degree,” the facts plead were consistent with the defendants’ liability but did not make liability more plausible. The court then analyzed the “context specific” factual issue of the plaintiff’s failure to disclose a disciplinary action in his application, and concluded that given this omission, a finding of retaliatory action was not a “reasonable inference” and therefore was not plausible.

In re Agria Corporation Securities Litigation

2009 WL 4276967 (S.D.N.Y)

S.D.N.Y 11/30/09 2nd Cir. Securities Act of 1933 Sections 11 and 12(a)(2), 15 U.S.C. § 77

Dismissal (though not based on insufficient factual allegations)

The plaintiff alleged that the defendant failed to disclose important negotiations with a key employee at the time of its IPO and that it’s Registration Statement contained untrue statements of material facts. The court found that the plaintiff plead sufficient facts to draw an inference that such negotiations had taken place and that the outcome of such negotiations posed a “significant risk” to the defendant’s operations. As such, the court found that the plaintiff’s factual allegations were sufficient. However, the court ultimately found that the defendant’s failures did not amount to a violation of the securities laws.

N The Iqbal standard screens out more cases than previous standards.

Simpson Thacher & Bartlett LLP

Green v. Beer 2009 WL 3401256 (S.D.N.Y)

S.D.N.Y 10/22/09 2nd Cir. Motion for reconsideration of previous order on the following causes of action: unjust enrichment, breach of fiduciary duty, fraud, negligent misrepresentation,

Motion for Reconsideration Denied (motion to dismiss denied)

Defendant’s moved for a reconsideration of the court’s previous order finding the plaintiff’s claims of direct and indirect fraud based on a theory of civil conspiracy were sufficiently plead. The court found that Iqbal’s clarification of Rule 8 and 9(b) did not amount to an intervening change in decisional law and so a reconsideration of its previous order in the case was not required. The court also noted that “to the extent that

N Iqbal did not change the fraud pleading standard.

Simpson Thacher & Bartlett LLP

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and civil conspiracy

Iqbal altered applicable pleading requirements, Plaintiff’s Amended Complaint satisfies those requirements.”

Creative Interiors v. Epelbaum

2009 WL 2382986, 2009 N.Y. Slip Op. 51680(U)

N.Y. Supreme Court, Richmond City

7/30/09 2nd Cir. Breach of contract Damages awarded after bench trial

Plaintiffs brought a breach of contract claim when defendants kept 28 deficiently-produced custom doors after plaintiffs refunded defendants for nearly the complete contract price. Following a bench trial, the court set forth its findings. Defendants had argued that they agreed to receive a refund of the majority of the purchase price as well as keep the faulty doors, and that this interpretation of the transaction was reasonable. The court rejected these arguments “as being implausible and not worthy of belief because they are ‘manifestly untrue, . . . contrary to experience, or self-contradictory.” For this conclusion, the court cites Iqbal.

N An interesting application of Iqbal to reject “implausible” arguments following a bench trial, rather than on a motion to dismiss

Mor Wetzler & Carla Walworth at Paul, Hastings, Janofsky & Walker LLP

Brown v. Castleton State College

2008 WL 3248106

D.Vt 10/7/09 2nd Cir. Race discrimination, 42 U.S.C. § 1981

Dismissal An Asian male student brought race and gender discrimination charges against a state college. The Court initially framed its statute of limitations inquiry under the Twombly standard, requiring that plaintiff show “an entitlement to relief.” For the single timely claim, the Court considered the specific pleading requirements of §1981 as a “specific fleshing-out of the Twombly and Iqbal plausibility standard” rather than as evidentiary standards. The Court then found that plaintiff had alleged sufficient facts to cast doubt on the administrative tribunal’s outcome, but that the facts did not plausibly suggest discriminatory intent because there were other possible explanations for the tribunal ignoring certain evidence and accepting other evidence unquestioningly—“among them time constraints, laziness, or just that it was standard procedure to do so.”

N In considering other possible explanations for an administrative tribunal’s allegedly discriminatory actions, the court suggests “time constraints, laziness, or . . . standard procedure” and dismisses accordingly.

Mor Wetzler & Carla Walworth at Paul, Hastings, Janofsky & Walker LLP

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Arar v. Ashcroft

585 F.3d 559 2nd Cir. (en banc)

11/2/09 2nd Cir. Torture Victim Protection Act (TVPA), 28 U.S.C. § 1350, and Fifth Amendment

dismissal affirmed

Plaintiff, a Canadian citizen, challenged his rendition to Syria by the U.S. government, where he was tortured, forced to falsely confess, and released after one year without ever being charged. The district court (E.D.N.Y.) dismissed the suit, a decision that was upheld by a split panel of the Second Circuit. In a highly unusual move, the Second Circuit decided, sua sponte, to rehear the case en banc. The Court upheld the dismissal in a 7-4 decision, with four dissenting opinions disagreeing on whether the complaint passed muster under the “more stringent standard of review for pleadings” established in Iqbal. The dissents argue that the complaint is sufficient under Iqbal and, inter alia, disagree with the majority’s procedural decision to consider of the viability of a Bivens claim, which was assumed viable in Iqbal. The dissents also recognize Iqbal’s effect on supervisory liability and that “to the extent actions against ‘policymakers’ can be equated with lawsuits against policies, they may not survive Iqbal either.”

N Application of Iqbal to a similar national security case spurring the Second Circuit’s sua sponte grant of en banc rehearing and four separate dissenting opinions. Dissents recognize Iqbal’s more stringent standard but disagree on result of its application.

Mor Wetzler & Carla Walworth at Paul, Hastings, Janofsky & Walker LLP

Young v. Speziale

2009 WL 3806296

D.N.J. (Hon. Susan D. Wigenton)

11/10/09 3rd Cir. Civil rights, 42 U.S.C. § 1983

Motion to Dismiss Denied

Plaintiff, a pretrial detainee of the U.S. Marshals Service (“USMS), sued the nurse consultant affiliated with the USMS and various other defendants for violation of his constitutional rights based upon defendants’ alleged failure to provide him with adequate medical care. The nurse consultant (“defendant”) subsequently filed a motion to dismiss. Citing Iqbal, defendant argued that “[p]laintiff’s allegations merely parrot[ed] the legal requirements of a §1983 claim and [were] implausible.”

Y1 The factors necessary to establish a Bivens or §1983 violation will vary with the constitutional provision at issue. (Iqbal thus does not support the proposition that general allegations are never sufficient to support a §1983 claim.)

Jeffrey Soos

1 Plaintiff initiated the action, pro se, but was later represented by counsel.

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The District Court disagreed and denied defendant’s motion, distinguishing between the pleading requirements of a Bivens action for discrimination, as was the case in Iqbal, and a §1983 action for inadequate medical care. Specifically, the District Court observed that a Bivens action for discrimination in violation of the First and Fifteenth Amendments required plaintiff to plead and prove that defendant acted with a discriminatory purpose, whereas there was no such pleading requirement for a §1983 claim for inadequate medical care arising under the Eighth or Fourteenth Amendments. As a result of the more specific pleading requirement in Iqbal, the Supreme Court concluded that mere knowledge on the part of the supervisor was an insufficient basis for Bivens liability. Here, however, the District Court pointed out that, “[t]he Supreme Court, in Iqbal, even prefaced its analysis of this issue by recognizing that ‘[t]he factors necessary to establish a Bivens [or §1983] violation will vary with the constitutional provision at issue … and thus Iqbal does not support the proposition that general allegations are never sufficient to support a §1983 claim.” Rather, the District Court found that it was plausible and can be inferred from plaintiff’s factual allegations that the harm plaintiff suffered resulted from defendant’s denial of medical care to plaintiff, and consequently, plaintiff’s pleadings adequately alleged a claim for denial of medical care – i.e., defendant was deliberately indifferent to

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plaintiff’s serious medical needs.

U.S. v. Nobel Learning Communities

2009 WL 3617734

E.D. Pa. (Hon. Mary A. McLaughlin)


3rd Cir. Disability discrimination claim against the operator of a charter school network based upon alleged failure to enroll or by disenrolling from its schools children with disabilities.

Defendant’s motion to dismiss under Rule 12(b) (6) granted in part and denied in part.

The plaintiff’s allegations of 12 specific instances in which children with significant neurological disabilities (11 of whom were under age 6 at the time of the defendant’s action) deemed sufficient to allege a pattern of discrimination in the preschool context, but not beyond the preschool level. The Court rejected the defendant’s argument that the absence of statistical data to demonstrate the breadth of the alleged discriminatory policy required dismissal of the complaint (inferentially but not explicitly finding that Iqbal has not changed pleading requirements regarding statistical evidence).

N Statistical data not necessary to support a claim of disability discrimination at the pleading stage.

Peter Jason

Duane Morris

McTernan v. City of York

577 F.3d 521 3rd Cir. 8/24/09 3rd Cir. Injunctive Relief under First Amendment

Affirmance of Dismissal

Court characterized as “legal conclusion” plaintiffs’ statement that access ramp for disabled (on which plaintiffs wanted to conduct protest) was a public forum. Accordingly, district court properly determined that it was not bound by that characterization. Because district court had properly concluded in preliminary injunction proceeding that plaintiffs “had no probability of success on the merits, that the ramp leading to the Facility was a non-public forum,” district court acted appropriately in dismissing complaint, as well.

N Stuart Gaul Thorp Reed & Armstrong, LLP

McDonough v. Horizon Blue Cross Blue Shield of New Jersey

2009 WL 3242136

D.N.J. (Hon. Stanley R. Chesler)

10/7/09 3rd Cir. Payment of Health Benefits, ERISA

Dismissal Without Prejudice; Leave to Amend

Plaintiff insured brought this putative class action against defendant insurer for alleged underpayment of benefits relating to the manner in which insured processed and paid claims for services provided by out-of-network providers to insured, in violation of ERISA. Defendant moved to dismiss under Rule 12(b)(6). The District Court granted defendant’s motion and dismissed the

N In order t survive a motion to dismiss, plaintiff must do more than aver in a conclusory fashion a violation of law. Rather, it must provide substantive factual allegations on which liability must be based. In addition, this case shows the

Jeffrey Soos

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complaint without prejudice. The District Court found that the complaint contained “abundant legal conclusions,” but was “short on the substantive factual allegations on which liability must be based.” The District Court further observed that it was unclear from the complaint what actions or inactions by the insurer might plausibly have supported liability for various alleged ERISA violations. For example, the District Court found that the complaint alleged certain violations of state regulations concerning payment of benefits, but failed to provide any factual substantiation for how these regulations were violated by the insurer. The District Court further observed that the complaint averred in conclusory fashion that the insurer’s reimbursem*nt to plaintiff and the class violated the regulations and therefore violated ERISA, and that such “unadorned, the defendant-unlawfully-harmed-me accusation” did not pass muster under Rule 8(a). As a result, the District Court dismissed the complaint without prejudice (with leave to amend).

application and extension of Iqbal to claims—here, ERISA—beyond the antitrust and constitutional context.

Mark IV Industries Corp. v. Transcore, L.P.

2009 WL 4403187

D. Del. (Hon. Gregory M. Sleet, Chief Judge)

12/2/09 3rd Cir. Patent Infringement

Motion to Dismiss Denied

Plaintiff brought suit against defendant for infringement of patents concerning vehicle toll and tracking systems. Defendant moved to dismiss, arguing that Iqbal’s heightened pleading standard requires a patent infringement plaintiff to plead specific claims of the patent allegedly infringed and describe how the allegedly infringed product works. The District Court disagreed that Iqbal had such an effect on pleading direct patent

N Iqbal did not supersede the pleading forms appended to the Federal Rules of Civil Procedure and prior rulings by the Federal Circuit on pleading requirements for patent infringement actions. While courts in other cases have extended the application of Iqbal beyond

Jeffrey Soos

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infringement, reasoning that this issue was not before the Supreme Court in Iqbal. The District Court observed that, the Federal Circuit has squarely addressed the pleading requirements in a patent infringement action (albeit, prior to Iqbal), and has held that a plaintiff is neither required to plead individual claims of the asserted patents, nor is a plaintiff required to plead specifics as to how an allegedly infringing product works. The specifics of how an allegedly infringing product works was something more appropriately determined through discovery. The District Court also found that Iqbal did not have such a far reaching effect so as to supersede all previous jurisprudence on pleading requirements, including Form 18 appended to the Federal Rules of Civil Procedure, which sets forth a model complaint for direct patent infringement. The District Court held that such a form continues to be viable, absent an explicit abrogation by the Supreme Court. Furthermore, mindful of the practical difficulties of pleading patent infringement with more specificity than that required by Form 18, the Court drew on its own “judicial experience and common sense” and concluded that plaintiff’s complaint sufficiently asserted a claim for patent infringement.

antitrust and alleged violations of constitutional rights, this court rejected the extension of Iqbal claims for direct patent infringement that are pled in the manner set forth in Form 18 to the Federal Rules of Civil Procedure.

Knechtel v. Choicepoint, Inc., et al. Carlton v.

2009 WL 4123275 2009 WL

D.N.J. (Hon. Robert B. Kugler)

11/23/09 3rd Cir. Violation of Fair Credit Reporting Act (“FCRA”), defamation, and invasion of

Dismissal of FCRA claims without prejudice, with leave to amend;

Plaintiff brought claims for violation of the FCRA, defamation, and invasion of privacy/false light, for the alleged improper dissemination of negative credit information. Defendants moved to dismiss for failure to

N The factual allegations of a complaint must support a requisite element under the applicable law – here, a showing that defendants

Jeffrey Soos

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ChoicePoint, Inc., et al.

4127546 privacy/false light motion to dismiss denied as to defamation and invasion of privacy/ false light claims

state a claim upon which relief can be granted. The District Court dismissed the FCRA claim because plaintiff’s factual allegations did not support a plausible claim that defendants were a consumer reporting agency – a threshold requirement under the Act. With respect to the defamation and invasion of privacy/false light claims, the court found that the well-pled factual allegations plausible stated a claim for these torts. As a result, the court denied defendants’ motion to dismiss as to these claims.

were a consumer reporting agency. Again, as in other cases, Iqbal’s application is extended beyond the antitrust and constitutional rights context.

Fowler v. UPMC Shadyside

578 F.3d 203 3rd Cir. 8/18/09 3rd Cir. Rehabilitation Act, 29 U.S.C. §§ 794 et seq.

Reversal of Dismissal

“[A]ll civil complaints” • “must now set out ‘sufficient factual

matter’ to show that the claim is facially plausible.”

• “must contain ‘more than an unadorned, the-defendant-unlawfully-harmed-me accusation.’”

District court is to conduct two-part analysis: (1) separate factual and legal elements of a claim; (2) determine whether the alleged facts “are sufficient to show that the plaintiff has a ‘plausible claim for relief.” Appears to confirm court’s post-Twombly statement that district court should accept all factual allegations as true, construe complaint in light most favorable to plaintiff and determine whether, under any reasonable reading of complaint, plaintiff may be entitled to relief. Although more detail would be preferred, complaint showed “how, when, and where” defendant had allegedly discriminated against plaintiff: defendant believed plaintiff was disabled, had suitable opening, didn’t transfer

N First published Third Circuit opinion on Iqbal. Court had previously (post-Twombly) held that “plausibility paradigm” applied to employment discrimination cases.

Stuart Gaul Thorp Reed & Armstrong, LLP

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plaintiff to that position and acted on basis of plaintiff’s disability.

Capogrosso v. Supreme Court of the State of New Jersey

--- F.3d ---, 2009 WL 4110372

3rd Cir. 11/27/09 3rd Cir. 42 U.S.C. § 1983 Affirmance of Dismissal

Court affirms that plaintiff’s claims against several state-court judges are precluded by judicial immunity because, although plaintiff pleaded that judges acted “without jurisdiction,” she alleged no facts that could show that absence. Also, district court properly affirmed dismissal of claim of “judicial conspiracy” because, in absence of factual allegation that defendants agreed to commit specific act, that act (e.g., judicial error, ex parte communications or adverse ruling) is not a conspiracy. Allegation of contact between claimed conspirators followed by ruling adverse to plaintiff is insufficient.

Y Court states that it is mindful of its obligation to give liberal construction to pleadings of pro se litigant. However, as plaintiff is “experienced litigant,” court confines itself to issues raised in brief.

Stuart Gaul Thorp Reed & Armstrong, LLP

Adams v. Lafayette College

2009 WL 2777312

E.D. Pa. (Hon. Lawrence F. Stengel)


3rd Cir. Age discrimination claim, based upon disciplinary sanctions that allegedly would not have been given to younger employees.

Defendant’s motion to dismiss under Rule 12(b)(6) was granted.

Plaintiff’s allegations that he was penalized for minor infractions, while younger employees were treated differently on several other occasions and that he received harsher treatment because of his age, without factual detail of the allegedly disparate treatment, amount to legal conclusions that do not satisfy the Iqbal standard, requiring a plaintiff to allege facts plausibly suggesting that his injury was due to (and most logically explained by) the defendant’s misconduct.

N Iqbal standard applies to employment discrimination claims.

Peter Jason

Duane Morris

King v. United Way of Central Carolinas, Inc.

2009 WL 2432706


Aug. 6, 2009

4th Cir. Breach of contract; ERISA; ADEA; Title VII; 42 U.S.C. § 1981

Dismissal of discrimination claims, but with leave to amend ERISA claim on other grounds

Plaintiff, an African American woman, brought suit against employer United Way after the Board of Directors voted to remove her, replacing her with a white male. She alleged claims of breach of contract, race and age discrimination, and violations of ERISA. The district court granted the Defendants’ motion to dismiss, noting that the complaint failed to state any “well-pleaded factual allegations” supporting Plaintiff’s underlying

N Must point to actual racial and discriminatory conduct on the part of the defendants in order to survive a motion to dismiss—mere allegations of community discomfort are not sufficient.

Avery Simmons

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claims. The court reasoned that the Plaintiff had pointed to no facts to support her allegations of racial or discriminatory conduct, other than community blogs, editorials, and internet postings, none of which had been authored or endorsed by the defendants. The court stated that there was no “factual content which would ‘nudge’ her claims of purposeful discrimination and retaliation ‘across the line from conceivable to plausible.’’ Further, even taking the factual allegations as true, and inquiring as to a alternative explanation of behavior, as dictated by the two-part analysis outlined in Iqbal, the court found that it was more likely that the Plaintiff had been terminated because she could no longer effectively lead the United Way.

Boy Blue, Inc. v. Zomba Recording, LLC

2009 WL 2970794

E.D. Va. 10/16/09 4th Cir. Tortious interference

Dismissal Plaintiff brought a complaint for tortious interference with the management contract of recording artist Chris Brown. The Court found that any facts establishing the element of “knowledge of the relationship or expectancy on the part of the interferor” could, at that stage of the proceedings, be entirely within the possession of the opposing parties. The court allowed plaintiff to plead the factual basis for that element “upon information and belief.” With respect to the element of “intentional interference inducing or causing a breach or termination of the relationship or expectancy,” the court found that Plaintiff simply pled that its contract with defendants was terminated, and listed the rest of the required elements with Defendants’ names inserted as the offending party. Pursuant to Iqbal, the court held that even viewed in its most favorable light, Plaintiff did not plead factual content for that

Pleading on information and belief is still permissible

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element that allowed the court to draw the reasonable inference that the defendant was liable, and Plaintiff’s Complaint failed to sufficiently plead the claim.

Valencia v. Ultimate Staffing

No. 09-1155, 2009 US Dist. LEXIS 93026

D. Md Oct. 5, 2009

4th Cir. Violation of 42 USC §2000e

Claim dismissed without prejudice to replead

Employee filed suit alleging termination based on pregnancy. Plaintiff’s complaint failed to include any direct evidence of discrimination or other allegations that would create a presumption of discrimination. The court noted that plaintiff had not alleged how her employer knew of her pregnancy, how she was terminated, the reasons given for her termination, or whether her position was filled with a non-pregnant person or left open. Without such allegations, the complaint did not state a plausible claim for relief.

Y Dismissal without prejudice to allow plaintiff to file an amended complaint that alleges facts necessary to meet requirements of Title VII and the Iqbal pleading standards

Kerrin Kowlach

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Knowledge Boost v. SLC California

No. 09-0936 D. Md. Oct. 16, 2009

4th Cir. Tort and statutory claims based on alleged misrepresentations in asset purchase transaction

Claim dismissed

Plaintiffs’ complaint alleged claims in tort (conspiracy, tortious interference, misrepresentation) and statutory violations based on the corporate defendants’ alleged vicarious liability for actions of various individuals (who were not named as defendants). Plaintiffs’ complaint was defective because it failed to allege that facts that would show that the alleged tortfeasors were actually agents of the defendants.

N Claims asserting vicarious liability must allege facts that would show that the tortfeasors were agents of the defendants

Kerrin Kowlach

In re XE Services Alien Tort Litigation

2009 WL 3415129

E.D. Va. 10/21/09 4th Cir. Alien Tort Statute, RICO

Dismissal, some claims with leave to amend

Plaintiffs, Iraqi nationals or the estates of deceased Iraqi nationals, claimed that defendant’s employees were liable for various injuries or deaths that occurred in Iraq under the Alien Tort Statute (“ATS”) and RICO. In order to withstand a motion to dismiss on the ATS Claim, the plaintiffs needed to state facts that would allow a trier of fact plausibly to infer that defendant (i) intentionally (ii) killed or inflicted serious bodily harm (iii) on innocent civilians (iv) during an armed conflict and (v) in the context of and in association with that armed conflict. The court held that Plaintiffs failed to meet this burden. The court noted at the outset that the content of all the complaints contained within a section entitled "Count One--War Crimes" was not entitled to the presumption of truth normally afforded a complaint's factual allegations on a motion to dismiss because, citing Iqbal, those sections did not contain factual allegations, but instead offered only “threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Specifically, that portion of the complaints asserted that defendant and his employees engaged in acts that were “deliberate, willful, intentional,

N Claims that failed to allege certain elements or contain sufficient factual allegations after Iqbal will be allowed to be amended (and that may require confirming that that amendment will conform with FRCP 11), but if amendment would be futile they will be dismissed.

Maggie Sklar, Greenberg Traurig

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wanton, malicious and oppressive and constitute war crimes,” that the acts occurred “during a period of armed conflict,” that the war crimes were committed against the decedents “and others,” that defendants are liable for the war crimes, and that the misconduct caused “grave and foreseeable” injuries to the plaintiffs. The court held that this section alleged no facts, but merely recited the elements, as plaintiffs understood them, for claims under the ATS. The court then found that other facts cited in the complaints did not support that the defendant acted intentionally or knowingly when his employees injured or killed the Iraqi nationals. Where one plaintiff had alleged that an Iraqi national was killed by one of defendant’s employees while the employee was intoxicated, the court found that “the lengthy chain of inferences that would be required to trace such conduct back to [defendant]’s alleged directive to his employees to kill Iraqi civilians is so tenuous that it does not even approach the plausibility standard articulated in Iqbal and Twombly,” and denied plaintiffs’ motion for leave to amend the complaint on grounds of futility. For other plaintiffs alleging that the employees shot or beat the Iraqi nationals, the court allowed the plaintiffs leave to amend their complaints to allege sufficient factual allegations. With respect to plaintiffs’ RICO claims, the court dismissed both the plaintiffs’ claims based on Section 1962(b) and (c) as failing to allege necessary elements. The court did not grant leave to amend the plaintiffs’ claims based on 1962(b), because plaintiffs’ claims were based on an inconsistent theory of liability,

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but allowed leave to amend plaintiffs’ claims based on 1962(c), because plaintiffs stated that, consistent with FRCP 11, they had a good faith basis to allege the 1962(c) elements they had failed to plead.

Francis v. Giacomelli

No. 08-1908, 2009 US App. LEXIS 26188

4th Cir. Dec. 2, 2009

4th Cir. Constitutional claims based on alleged Fourth Amendment (unreasonable searches and seizures) and Fourteenth Amendment (due process) violations; violation of 42 USC § 1981

Claims dismissed

Former police commissioner and deputies brought action alleging that the termination of their employment by the Mayor of Baltimore violated their due process rights, amounted to an unreasonable search and seizure, and was racially motivated. Plaintiffs previously filed a related action in state court. The Fourth Circuit held that the allegations in the related state court action could be considered in connection with the motion to dismiss because they provided the “proper context” in which to consider the sufficiency of the allegations in the federal complaint. The Court rejected the notion that the Federal Rules of Civil Procedure require nothing more than “notice pleading,” stating that the “aggregation” of various rule provisions makes clear that “plaintiffs may proceed into the litigation process only when their complaints are justified by both law and fact.” The Court found that the complaint did not state a plausible claim based on alleged unreasonable searches/seizures because the actions were undertaken outside the context of a law enforcement effort and the plaintiffs did not set forth facts showing that the actions were unreasonable in an employment context. The Court found that complaint did not state a plausible claim for discrimination or conspiracy to violate civil rights because the allegations were conclusory. The Court dismissed Plaintiffs’ claim based on an alleged due process violation due to qualified

N On motion to dismiss, court may consider allegations in a related state court action as the “context” in which to consider the sufficiency of the allegations in a complaint filed in federal court. If plaintiffs intend to ask for leave to amend in the event that the allegations of their original complaint are found to be deficient, plaintiffs should file a motion to amend/attach a proposed amendment so that the district court can determine whether the amendment would cure the deficiencies

Kerrin Kowlach

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immunity. Finally, the Court held that the district court did not err in refusing to allow plaintiffs to amend their complaint, because the plaintiffs did not file a separate motion seeking leave to amend or provide a copy of their proposed amendment, which was required by Local Rule.

Bardes v. Magera

2009 WL 3163547

D.S.C. Sept. 30, 2009

4th Cir. 42 U.S.C. § 1983; RICO; malpractice

Dismissed as to all who filed motions to dismiss

Plaintiff brought suit against numerous state officials and actors involved in a child custody and support case, alleging violations of his constitutional and civil rights, the federal RICO statute, and numerous state law claims. The district court upheld the magistrate’s recommendation of dismissal on the majority of the claims on the basis of sovereign and judicial immunity. In his RICO claim, Plaintiff alleged that the prosecutor and the SC Department of Social Services operated as an “enterprise” to “racketeer” and “cause damage to Plaintiff.” Plaintiff alleged that the judge, lawyer’s and Social Services computers were all linked, the parties colluded against him, and the actions of the parties as a whole were to “destroy” him. The Plaintiff argued that, because he was proceeding pro se, the district court had to “formulate the legal claim based on what he means” in his complaint. The court dismissed the RICO claim under 12(b)(6), noting that, under Iqbal, the plaintiff had failed to state a “RICO claim that is plausible on its face.” The allegations in the complaint were nothing more than bare assertions that failed to allege the necessary factual elements of a RICO claim.

Y Must have a factual basis of support from which inference of a plausible claim is reasonable, even if pro se.

Avery Simmons

Whiddon v. Chase Home Finance, LLC

___ F. Supp. 2d ___, 2009 WL 3297294

E.D. Tex. 10/14/09 5th Cir. Breach of contract Order to file an amended complaint

The following allegations were found insufficient to state a claim for breach of contract: “Plaintiff relied upon Defendant, Chase to place coverage based upon

N Adam Steinman

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representations that it would be done, and the payments be escrowed”; “in reliance upon the representations made by Chase, [Whiddon] believed that his home was covered”; “the actions and/or omissions of Defendants described herein above constitute a breach of contract.”

Watts v. City of Jackson

___ F. Supp. 2d ___, 2009 WL 3336124

S.D. Miss.

10/14/09 5th Cir. Section 1983 claim for violation of First Amendment rights

Motion to dismiss (mostly) denied

The court begins with the standard language from Iqbal and Twombly, but then states that “The Court does not weigh facts under Rule 12(b)(6), even if supported in the record. Instead, the Court must separate the conclusory statements contained in Plaintiff's Complaint, give the presumption of truth to the remaining averments, and determine whether, when viewed in a light most favorable to Plaintiff, the allegations show he is entitled to relief.” On the issue of whether the plaintiff adequately alleged an adverse employment action, the court writes: “Plaintiff expressly avers that the transfer would be considered punishment; that he moved from a day to graveyard shift; and that the new shift was more hazardous. Such allegations are more than sufficient to plead an adverse employment action under § 1983.”

N Application of Iqbal to allegation that an employment action was “adverse”

Adam Steinman

Oceanic Exploration Co. v. Philips Petroleum Co.

2009 U.S. App. LEXIS 24751 (unpub.)

5th Cir. 11/6/09 5th Cir. RICO, other claims related to bribery

Dismissal under 12 ( c) affirmed

Citing Twombly and Iqbal, the Fifth Circuit stated, “In order for a claim to be plausible at the pleading stage, the complaint need not strike the reviewing court as probably meritorious, but it must raise ‘more than a sheer possibility’ that the defendant has violated the law as alleged.” Id. at *13. The Fifth Circuit held that the pleading party failed to properly plead proximate causation for the RICO claim because the alleged bribery “could only have caused the alleged harm to Oceanic by means of a highly

N Complicated facts with sophisticated parties on both sides

Elizabeth Patterson Abram Scott & Bickley, L.L.P.

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improbable series of hypothetical events and decisions by affected countries and entities.” Id. at *13, 16. The court held that the allegations failed the test of common sense plausibility because there was no reason to believe Australia would have allowed the events as described to occur. Id. at *16-17.

Morgan v. Hubert

2009 U.S. App. LEXIS 14355 (unpub.)

5th Cir. 7/1/09 5th Cir. Eighth Amendment, 42 U.S.C. § 1983

Denial of dismissal under 12(b)6 vacated & remanded

Initial citation in the Fifth Circuit of Iqbal in response to dispute between the parties about whether to apply Twombly or Conley v. Gibson. “The Supreme Court recently settled the dispute by applying the Twombly standard – that a complaint must state a claim that is ‘plausible on its face’ – to all civil cases.” Id. at *8.

N Prisoner represented in part by ACLU, claims based on post-Katrina transfer of Louisiana inmates

Elizabeth Patterson Abram Scott & Bickley, L.L.P.

McCall v. Southwest Airlines Co.

___ F. Supp. 2d ___, 2009 WL 3163544

N.D. Tex.

10/1/09 5th Cir. Union’s breach of duty of fair representation (other claims too, but they don’t involve Iqbal)

Motion to dismiss denied

The court provides a detailed list of the plaintiff’s allegations and concludes that “the factual landscape described in McCall's Complaint raises a plausible inference that [the union’s refusal to press her grievance] was arbitrary or irrational.” Additional allegations in the complaint “raise a plausible inference that SWAPA's actions during the grievance process were discriminatory.”

N Application of Iqbal to allegation that union’s conduct was arbitrary and/or discriminatory.

Adam Steinman

Lonoaea v. Corrections Corp. of Am.

___ F. Supp. 2d ___, 2009 WL 3349421

N.D. Miss.

10/15/09 5th Cir. Claim under § 1983 and Mississippi law against individual executives of company operating prison for injuries suffered as a result of attack by fellow inmates

Dismissed with prejudice

QUOTE (citations omitted): [M]erely noting that a particular defendant has relevant responsibilities is a far cry from alleging specific facts in support of an assertion that the defendant personally took actions which violated the U.S. Constitution and/or basic negligence standards. The Supreme Court has recently tightened the pleading standards in federal lawsuits, and it is apparent that the complaint fails to plead facts which would establish a “plausible” case for liability against the individual defendants under Iqbal-Twombley [sic].

N Oddly, this case involved a motion for summary judgment, but the claims against the individual executives were examined under Iqbal

Adam Steinman

Jebaco Inc. v. Harrah’s

2009 U.S. App. LEXIS

5th Cir. 10/30/09 5th Cir. Sherman Act antitrust claims,

Dismissal under

In a lawsuit alleging Harrah’s and Pinnacle were monopolizing the casino market in

N Elizabeth Patterson

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Operating Co., Inc.

23973 related state law claims

12( c) affirmed Louisiana, the Fifth Circuit affirmed dismissal on an alternate ground that “Jebaco has failed to allege sufficient facts that, if true, would establish a plausible claim of antitrust standing.” Id. at *10. Neither Jebaco’s landlord/supplier claim nor its potential-competitor claim arose from the type of injury antitrust law was designed to prevent. Id. at *17, 21.

Abram Scott & Bickley, L.L.P.

Gonzalez v. Kay

577 F.3d 600

5th Cir. 8/3/09 5th Cir. Fair Debt Collection Practice Act claim

Dismissal under 12(b)(6) reversed

In a lawsuit related to the collection of a consumer debt, the debtor filed suit against a law firm and alleged that the debt collection letter sent on the firm’s letterhead violated the Fair Debt Collection Practices Act. Id. at 601. The district court dismissed under Rule 12(b)(6) based on the disclaimer in the letter without analyzing the context or placement of the disclaimer. Id. at 603, 607. The Fifth Circuit reversed based on the facial plausibility of the debtor’s claim and remanded. Id. at 603, 607.

N Elizabeth Patterson Abram Scott & Bickley, L.L.P.

Floyd v. City of Kenner

2009 U.S. Ap. LEXIS 23913 (unpub.)

5th Cir. 10/29/09 5th Cir. Civil rights action Dismissal under 12(b)(6) affirmed in part, reversed in part

A former employee filed suit against the City and members of the police department related to his arrest for misappropriating relief supplies following Hurricane Katrina. Id. at *2. The claims against the police officer who discovered the relief supplies at the employee’s home were “presented with sufficient clarity” to survive dismissal. Id. at *11-12. The claims against the detective who filed an affidavit to support the warrants included sufficient factual specificity to survive dismissal. Id. at *16. The claims against the Police Chief and the Chief of Investigations lacked the specificity required to meet the plausibility standard. Id. at *24, 26. Thus, the Fifth Circuit reversed the dismissal against the two officers and affirmed the dismissal of the claims against

N Qualified immunity analysis discussed in conjunction with analysis of pleadings, multiple defendants involved, cites Morgan v. Hubert

Elizabeth Patterson Abram Scott & Bickley, L.L.P.

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the two chiefs and against the City. Id. at *26.

Brewster v. Dretke

__ F.3d __, 2009 WL 3738532

5th Cir. 11/10/09 5th Cir. Eighth Amendment claim for indifference to prisoner’s medical needs (confiscation of inmate’s spare glass eye).

Dismissal of IFP complaint as frivolous

QUOTE (citations omitted): Brewster alleges that officials confiscated his spare eye, but this allegation, without more, does not indicate that prison officials were aware that their actions exposed Brewster to a substantial health risk, or that the officials consciously disregarded that risk. Importantly, Brewster does not allege any facts indicating that prison officials had reason to know that Brewster's spare glass eye was medically necessary, even assuming that it was. Brewster, for example, does not allege that he complained to prison officials about adverse medical effects resulting from the confiscation and that these complaints were ignored. Rather, Brewster admits that he currently has the use of a glass eye and that the confiscated eye was “extra.” . . . Since the facts alleged in Brewster's complaint and more definite statement “do not permit the court to infer more than the mere possibility of misconduct,” he has failed to state an Eighth Amendment claim.

Y Application of Iqbal to prisoner’s denial-of-medical-treatment claim under the 8A (the same kind of claim at issue in Erickson, 551 U.S. 89 (2007)).

Adam Steinman

In re Travel Agent Commission Antitrust Litigation

583 F.3d 896 6th Cir. Appeals

10/2/09 6th Cir. Antitrust claim under Section 1 of the Sherman Act

2-1 decision affirming dismissal.

Plaintiff travel agencies sued various airlines under Section 1 of the Sherman Act, alleging that the airlines conspired to reduce and eventually eliminate the payment of base commissions to drive the travel agencies out of business. The Sixth Circuit affirmed dismissal of the complaint, reasoning that the complaint failed to allege facts plausibly suggesting a prior illegal agreement — as opposed to merely being consistent with such an agreement — because: 1) the allegation in the amended complaint of an “agreement between and among Defendants to reduce, cap and eliminate commissions paid to

N Judge Merritt’s dissent draws a distinction between allegations of misfeasance and the alleged nonfeasance at issue in Twombly — asserting that the allegations of action in the form of follow-the-leader price cuts, especially when coupled with allegations tying those rate-cuts to meetings attended by the defendants, is sufficient to state a plausible claim under

Ben Sassé, Tucker Ellis & West LLP

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plaintiffs” is “a legal conclusion ‘masquerading’ as a factual allegation” that is insufficient under Twombly and Iqbal; 2) allegations of a mere “opportunity to conspire” do “not necessarily support an inference of illegal agreement” under Twombly and Iqbal; 3) each defendant “had a reasonable, independent economic interest in adopting a competitor’s commission cut rather than to maintain the status quo”; and 4) a 1983 statement by a former airline executive approving of commission cuts was too remote in time to support a plausible inference of an agreement.

Section 1 of the Sherman Act.

Hiles v. Inoveris, LLC

No. 2:09-cv-53, 2009 WL 3671007

Sthrn District of Ohio

11/4/09 6th Cir. Worker Adjustment and Retraining Notification claim

Motion to dismiss denied.

Plaintiffs sued multiple defendants under the WARN Act following the termination of their employment, alleging that all of the defendants constituted a single employer under the WARN ACT, and that this employer violated the act by failing to the required advance notice of termination. Defendants moved to dismiss, asserting that Plaintiffs failed to allege sufficient facts to state a plausible claim that the defendants were a single employer. The district court denied the motion, holding that the following allegations made “on information and belief” were sufficient to state a claim under the act: a) defendants shared common officers and directors; b) Defendant Inoveris was a wholly owned subsidiary of ComVest; c) Defendant Inoveris and ComVest directly owned and operated the facility where plaintiffs worked; and d) defendants jointly made the labor decision to terminate plaintiffs’ employment.

N The district court rejected defendants’ argument that plaintiffs were required to plead “specific facts” pertaining to each of the factors relevant to a single employer analysis, explaining that “detailed factual allegations are not required, particularly where, as here, the defendants are in control of such information or it is otherwise unavailable to the plaintiffs.”

Ben Sassé, Tucker Ellis & West LLP

Wilson v. City of Chicago

2009 U.S. Cist. LEXIS 93912 (Case No. 09 C

N.D. Illinois

October 7, 2009

7th Cir. Conspiracy Motion to dismiss denied

Plaintiff was convicted of murder, which conviction was overturned by a state appellate court, which stated that the “evidence was ‘so improbable or

Unkwn When facts are peculiarly within the knowledge of the defendants, cannot dismiss the plaintiff’s complaint for

Angela S. Fetcher, Stoll Keenon Ogden PLLC

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2477) implausible’ that it raised a reasonable doubt regarding Wilson’s guilt.” Wilson then filed the action at issue, alleging that the police officers and detectives conspired against him, including by coercing two witnesses to testify against him, one of whom recanted her statement at trial. Defendants moved to dismiss, claiming that plaintiff’s claims are not sufficient under Iqbal because the complaint does not specify which individual committed which act. The court was not persuaded, and denied the motion to dismiss, stating “Each defendant knows what he did or did not do and can admit or deny the fact based on this knowledge,” but because the plaintiff was not there when the defendants allegedly manipulated the witnesses, the knowledge is uniquely in the possession of the defendants. It stated that Seventh Circuit case law states that where a plaintiff is injured “’as the consequence of the actions of an unknown member of a collective body, identification of the responsible party may be impossible without pretrial discovery,’ and that courts should not dismiss such claims.” (quoting Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009) (internal citation omitted)).

failure to allege the facts

Shoppell v. Schrader

2009 U.S. Dist. LEXIS 56771 (Case No. 1:08-CV-284 PS)

N.D. Indiana

6/30/09 7th Cir. 42 U.S.C. § 1983 – jail funding

Not dismissed An inmate at a county jail died while incarcerated from cardiovascular disease with 75 to 100% narrowing of three arteries. The personal representative for the inmate sued the County Council for inadequately funding the jail, which she claimed meant there were insufficient funds to train jail personnel on responding to medical needs, make healthcare professions available to inmates, and develop an inmate classification system. The Council claimed that under Bell

N Limits to Iqbal – a court cannot look at the plaintiff’s probability of success at the dismissal stage, only the plausibility of the claim

Angela S. Fetcher, Stoll Keenon Ogden PLLC

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Atlantic, the plaintiff’s claims were too speculative because she could not show that the Council’s funding decision was the “moving force” behind the decedent’s death, and that she would need to show how much in funds would have been sufficient and whether the Council knew the funds were insufficient. The court disagreed, citing Iqbal, stating that the questions posed by the defendant were more proper for assessing the plaintiff’s probability of success, not the plausibility of her claim. The court held that the allegations that the Council was responsible for funding, that they failed to give enough money and the factual allegations regarding the inmate’s death were enough to draw a reasonable inference that the Council is liable.

Riley v. Vilsack

2009 U.S. Dist. LEXIS 98548 (Case No. 09-cv-308-bbc)

W.D. Wisc.

October 22, 2009

7th Cir. ADEA, Congressional Accountability Act of 1995 (regarding disability discrimination – 2 U.S.C. § 1311), retaliation

Granting in part and denying in part motion to dismiss

After discussing at length the history of the pleading standards under Rule 8 in the Seventh Circuit, including under Iqbal, the court states that Iqbal gives few guidelines on discerning between “plausible” and “implausible” claims and “conclusions” and “detailed facts.” The court then states that Iqbal requires the court to consider the context of a particular case in determining the sufficiency of a complaint. It also states that when an element of a claim involves the intent of the defendant, which is purely within the knowledge of the defendant, the plaintiff is limited in the facts in can provide at the pleadings stage, and the factual context for such claim elements should be minimal. The court also says that the pleading standard under Iqbal is not akin to the summary judgment standard, but is more like the Rule 11 standard of “an inquiry reasonable under the circ*mstances.”

N A determination of the factual sufficiency of elements of claims depends on the nature of the claims and those particular elements

Angela S. Fetcher, Stoll Keenon Ogden PLLC

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Applying these principles, the court concluded that the plaintiff pled sufficient facts on his ADEA claim because he alleged that the defendants targeted him for elimination positions and made statements regarding their preference for younger workers. The court did, however, dismiss the Congressional Accountability Act claim because plaintiff failed to allege any facts showing that the defendants discriminated on him based on his disability or even that they were aware of his disability. It also dismissed the retaliation claim because plaintiff did not allege a “materially adverse” action taken by the defendants because of his protected conduct, other than calling him a “trouble maker,” which is not sufficient.

In re White 409 B.R. 491

U.S. Bankr. Court for the N.D. Ind.

July 24, 2009

7th Cir. Motion for relief from bankruptcy stay – 11 U.S.C. 362(d)

Denied stay motion

A creditor moved for stay relief, which Bankruptcy Rule 9013 requires to be stated “with particularity,” similar to the standard for stating fraud under Rule 9 of the Federal Rules of Civil Procedure. The court cited Iqbal’s standard that conclusory allegations are not sufficient and stated that although Iqbal applied the standards of Rule 8, not Rule 9, “if such allegations will not satisfy the requirements of Rule 8 they will not satisfy the more rigorous requirements of Rule 9(b).” The court held that, consistent with Iqbal, a creditor moving for stay relief needed to plead facts that describe what it is complaining about, such as why there is a lack of adequate protection, and not simply state that there is cause, it needs adequate protection and that there is no equity. Because the creditor did not even state the reasons it sought stay relief, the court dismissed the motion for lack of particularity under Bankruptcy Rule 9013.

Unknw but likely N

Application of Iqbal to bankruptcy proceedings

Angela S. Fetcher, Stoll Keenon Ogden PLLC

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In re Mission Bay Ski & Bike, Inc.

2009 Bankr. LEXIS 2495 (Case Nos. 07 B 20870 & 08 A 55)

U.S. Bankruptcy Court for the N.D. Ill.

September 9, 2009

7th Cir. Affirmative Defenses in an answer of estoppel, laches, etc.

Dismissed affirmative defenses

The bankruptcy trustee sued First American Bank for fraudulent transfer and other claims. The bank asserted several affirmative defenses in summary fashion, i.e., “the trustee’s claims are precluded, in whole or in part, by the doctrine of estoppel.” The court held that Iqbal and its standards apply to affirmative defenses because affirmative defenses must comply with Rule 8 of the Federal Rules of Civil Procedure. Because there were no facts pled that would demonstrate plausibility, the affirmative defenses were dismissed.

N Iqbal applies to affirmative defenses

Angela S. Fetcher, Stoll Keenon Ogden PLLC

Cooney v. Rossiter

583 F.3d 967 7th Cir. 9/30/09 7th Cir. Civil rights, 42 U.S.C. § 1983

Dismissal Pro se plaintiff who lost custody of her children sued the state court judge, the children’s court-appointed lawyer, the court-appointed psychiatrist, her husband’s lawyer and the children’s therapist for conspiring to deprive her of her civil rights. The Seventh Circuit affirmed the district court finding that the judge, the children’s attorney and the court-appointed psychiatrist were entitled to immunity and therefore dismissed. The court also dismissed the remaining defendants (the husband’s attorney and the children’s therapist) due to the plaintiff’s failure to adequately plead a conspiracy against them. The specific factual pleadings of the complaint did not show how the remaining defendants’ alleged conduct tied into the alleged conspiracy. The Court, through Judge Posner, discussed Iqbal’s call for a “context specific” plausibility test and concluded that Iqbal requires a sliding scale for pleading: “In other words, the height of the pleading requirements is relevant is relative to the circ*mstances.” Because the plaintiff alleged “a vast encompassing conspiracy . . . the plaintiff must meet a high

Y Pleading requirement is relative to circ*mstances—focus is on burden of case to defendant

Ian Fisher, Schopf & Weiss

DRAFT as of 1/6/2010 36

standard of plausibility” to before she could “entangle[]”the defendants in discovery.

City of Waukegan v. National Gypsum Co.

2009 U.S. Dist. LEXIS 93333 (Case No. 07 C 5008)

N.D. Illinois

September 2, 2009

7th Cir. CERCLA § 107 Dismissed without prejudice

Court held that Iqbal required the plaintiff, who was seeking reimbursem*nt for costs incurred to clean up environmental contamination at a facility, to state whether the costs were incurred pursuant to one of the consent decrees or voluntarily. The need for more clarity is due, it stated, to the fact that the case would “entail extensive and complex discovery on a wide range of issues” involving dozens of parties, third parties and experts, and “it is not unreasonable to require Waukegan to identify in its complaint the nature of the response costs it alleges it has incurred to date.”

N Application of Iqbal to CERCLA cases and the fact that the complexity of the case may determine the leniency of the pleading standards

Angela S. Fetcher, Stoll Keenon Ogden PLLC

Brenston v. Wal-Mart

2009 U.S. Dist. LEXIS 47971 (Case No. 2:09 cv 026 PS)

N.D. of Indiana

6/8/09 7th Cir. Discrimination under Title VII and ADA

Dismissal without prejudice

Pro se plaintiff sued his employer after he was fired. The complaint stated only that he was forced by his supervisor to do work in a short time frame that was physically impossible and that there was an accident the supervisor was partly responsible for. In response to the motion to dismiss, plaintiff submitted documents confirming that he is disabled. However, the Court, citing to Iqbal and Bell Atlantic, stated that the plaintiff stated no allegations in the complaint that raise his Title VII claim against Wal-Mart above the speculative level because there is no allegation that he was discriminated against in the complaint other than checking the Title VII box on the complaint. He was allowed to amend to include allegations that Wal-Mart discriminated against him because of race, color, religion, sex or national origin. The court also dismissed the ADA claim without prejudice because there is no allegation that Wal-Mart discriminated against the plaintiff based on his disability.

Y In discrimination cases, plaintiffs must state that the defendant(s) discriminated against them and how to maintain an action.

Angela S. Fetcher, Stoll Keenon Ogden PLLC

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For instance, he did not allege that he was given physically impossible tasks because of his disability.

Sales Board v. Pfizer, Inc.

644 F. Supp. 2d 1127

D. Minn. Aug. 10, 2009

8th Cir. Trademark infringement and unfair competition

Motion granted in part and denied in part

Plaintiff sales training company brought action against pharmaceutical manufacturer alleging trademark infringement pertaining to use of plaintiff’s training technique. Defendant argued claims were time-barred by 6-year statute of limitations and the complaint, filed in 2009, alleged first use in 2002. The court concluded, based on its “judicial experience” and “common sense,” that it was plausible that the training guide in question was still in use as of 2003 and allowed the claim.

N Court applied its judicial experience and common sense to conclude claim was plausible.

Carrie L. Zochert, Harkin Hoffman

Raines v. Hollingsworth

2009 WL 3233430

D. South Dakota

Sept. 28, 2009

8th Cir. 42 U.S.C. § 1983, 1985

Dismissal Pro se plaintiffs husband and wife who were convicted of theft, sued the state court judges, prosecutors, three private attorneys, and policeman, for deprivation of their civil rights. The court affirmed the magistrate’s report and recommendations concluding that the judges and prosecutors were entitled to judicial & prosecutorial immunity, respectively, and dismissed those claims. The court also dismissed certain § 1983 claims as a matter of law because the plaintiffs’ criminal convictions had not been invalidated. Other claims against the private attorneys were dismissed due to the plaintiffs’ failure to adequately plead a conspiracy against them. Claims against the policeman were dismissed due to plaintiffs’ failure to allege any racially discriminatory intent. The state law claims were dismissed without prejudice because the court declined to exercise supplemental jurisdiction.

Y Thorough discussion of Twombly and Iqbal cases.

Carrie L. Zochert, Harkin Hoffman

Precision Indus., Inc. v.

2009 U.S. Dist. LEXIS

D. Neb Nov. 25, 2009

8th Cir. Breach of Contract One claim dismissed; one

Court dismissed first breach of contract claim for failure to negotiate in good faith in the

N No Specific Issues Francis P. Rojas, Miller

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Tyson Foods, Inc.

110442; 09-cv-195

claim not dismissed.

future because it would be particularly difficult to enforce the provision since there is no way to measure the breach under the contract as alleged, if any, or to give a particular remedy under the contract as alleged.

O’Brien Cummins, PLLP

Onyiah v. St. Cloud State University

2009 WL 2974738

D. Minn. Sept. 17, 2009

8th Cir. Lilly Ledbetter Act, ADEA, Title VII, intentional infliction of emotional distress

Motions for partial dismissal were granted.

Plaintiff professor brought claims against university, board of trustees, faculty union and ten individual defendants. Court determined that plaintiffs’ conclusory allegations against union were insufficient to establish pay discrimination claim and could not be brought against individual defendants; that ADEA and Title VII claims were time-barred; that plaintiff failed to allege sufficient facts to recover for breach of duty of fair representation and for intentional infliction of emotional distress.

N No Specific Issues Carrie L. Zochert, Harkin Hoffman

Murchison v. Marathon Petroleum Co., LLC

2009 WL 3853179

D. Minn. Nov. 17, 2009

8th Cir. Negligence Dismissal without prejudice

Injured plaintiff working at a refinery sued manufacturers of catalyst cooler and spring canisters for negligence. One manufacturer moved to dismiss. Court concluded that plaintiff failed to plead sufficient facts for the court to plausibly infer that defendant proximately caused plaintiffs’ injuries where plaintiff alleged his injuries were caused by failure of spring canisters that were incorporated into the spring canisters, but did not identify the defendant as the manufacturer or installer of the spring canisters and made no allegations demonstrating a connection between the manufacturer’s catalyst cooler and the spring canisters.

N Concluded plaintiff’s allegations raised defendant’s role in the accident only to level of possibility, not plausibility.

Carrie L. Zochert, Harkin Hoffman

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McCurry, et al. v. Swanson, et al.

2009 U.S. Dist. 82078

D. Neb Sept. 8, 2009

8th Cir. Section 1983 and Neb. Rev. Stat. § 20-148

Only state claims dismissed.

Court dismissed state claims as they were barred by Neb. § 13-910(7); but allowed § 1983 claims to go forth. The court interpreted Twombly/Iqbal as stating that “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Court also cited to Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005) for the proposition that it “explain[s] that something beyond a faint hope that the discovery process might lead eventually to some plausible cause of action must be alleged.”

N No Specific Issues Francis P. Rojas, Miller O’Brien Cummins, PLLP

Kinetic, Co. v. Medtronic, Inc.

2009 WL 4547624

D. Minn. Dec. 4, 2009

8th Cir. Minn. Stat. §§ 325F.67, 325D.44, and 325F.69 for consumer fraud, unfair trade practices and deceptive advertising (claims must be pleaded with particularity per Rule 9(b).

Survived dismissal

Self-insured employer sought to represent putative class of third-party payors for medical services, seeking reimbursem*nt for medical expenses resulting from recall of cardiac devices manufactured by Medtronic. Plaintiff abandoned some claims with prejudice; remaining claims were adequately pleaded to survive motion to dismiss.

N Court applied Iqbal standard to Rule 9 consumer fraud claims

Carrie L. Zochert, Harkin Hoffman

Express Scripts, Inc. v. Walgreen Co.,

2009 WL 4574198

E.D. Mo. Dec. 3, 2009

8th Cir. Counterclaim for conversion by Walgreen Co.

Express Scripts brought an action against Walgreen Co. for declaratory relief, breach of contract and unjust

The district court denies Walgreen Co.'s counterclaim for conversion based on the motion to dismiss standard under Fed. R. 12(b)(6) as clarified in Twombly and Iqbal. The court sets forth the Iqbal standard of "facial plausibility" and states that this standard is based on two "working principles" (1) a court must not treat legal

N There are no context specific issues in this case, other than the choice of law provisions in the contract requiring Missouri tort law to be used.

Gary D. Goudelock Jr Assistant City Attorney City of Des Moines, Iowa

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enrichment. Walgreen asserted a counterclaim for conversion by wrongfully recouping money Express Scripts had paid to Walgreen Co.

conclusions set forth in a complaint as true; and (2) a complaint must state a plausible claim for relief to survive a motion to dismiss. Because Walgreen's claim was for cash rather a specific, identifiable chattel, it had to allege that it had given the cash for a specific purpose and that Express Scripts diverted the funds for its own use. Because Walgreen did not plead conduct that would constitute conversion under Missouri law, its counterclaim could not survive a motion to dismiss.

Braden v. Wal-Mart Stores, Inc,

2009 WL 4062105

8th Circuit

Nov. 25, 2009

8th Cir. Putative class action for fiduciary duty violations under ERISA. Wal-Mart employee – Braden - on behalf of himself and other member of Wal-Mart's employee retirement plan brought this putative class action alleging that the Plan administrators failed to obtain institutional shares of mutual funds based on its size; that the administrators failed to select lower-fee mutual funds; and that the

Wal-Mart moved for dismissal pursuant to Federal Rules 12(b)(1) and 12(b)(6). The district court dismissed the complaint finding that Braden lacked constitutional standing and had otherwise failed to state a plausible claim.

In reversing the district court, the Eighth Circuit found that the district court had conflated the Article III standing requirement of an injury in fact with a plaintiff's potential causes of action. If a Plaintiff has standing, he may assert causes of action that are broader than his own personal injuries. The Eighth Circuit also examined the complaint under Federal Rules 8 and 12 in light of Twombly and Iqbal. The Eighth Circuit reiterated the requirement that Rule 12 requires the complaint to be read in the light most favorable to the Plaintiff and that the Plaintiff must be given all reasonable inferences. A complaint is not to be "parsed piece by piece to determine whether each allegation, in isolation, is plausible." The court held that Rule 8 does not "require a plaintiff to plead 'specific facts' explaining precisely how the defendant's conduct was unlawful." Instead, a Plaintiff sufficiently states a cause of action if she pleads facts "indirectly showing unlawful behavior" so long as those facts (1) "give the defendant

N Perhaps the only ERISA specific aspect of this case is that the court noted that "[n]o matter how clever or diligent, ERISA plaintiffs generally lack the inside information necessary to make out their claims in detail unless and until discovery commences. Thus, while a plaintiff must offer sufficient factual allegations to show that he or she is not merely engaged in a fishing expedition or strike suit, we must also take account of their limited access to crucial information…. These consideration counsel careful and holistic evaluation of an ERISA complaint's factual allegation before concluding that they do not support a plausible inference that the

Gary D. Goudelock Jr Assistant City Attorney City of Des Moines, Iowa

DRAFT as of 1/6/2010 41

fund broker – Merrill Lynch – had a conflict of interest in suggesting funds because it received "kickbacks" from the mutual fund companies when participants such as Wal-Mart invested in the mutual fund.

fair notice of what the claim is and the grounds upon which it rests"; and (2) "'allow[] the court to draw the reasonable inference' that the plaintiff is entitled to relief." Perhaps most importantly, the court discussed the Iqbal court's holding that the plaintiff failed to state a claim for relief "in light of 'more likely explanations' for the defendants' conduct." Rule 8 does not require the plaintiff to plead facts rebutting all possible lawful explanations for a defendant's conduct. Only if there is a concrete "'obvious alternative explanation'" for the conduct is the plaintiff required to plead additional facts ruling out that alternative explanation.

plaintiff is entitled to relief."

al-Kidd v. Ashcroft

580 F.3d 949 9th Cir. 9/4/09 9th Cir Bivens Denial of motion to dismiss affirmed in part, reversed in part.

Plaintiff brought a Bivens action against former Attorney General Ashcroft claiming that he was unlawfully detained under the federal material witness statute, 18 U.S.C. § 3144. The pleading-specific analysis was in connection with the § 3144 claim. Plaintiff alleged that Ashcroft was the “principal architect” of a policy of misusing the material witness statute to improperly detain suspected terrorists. The 9th Circuit compared al-Kidd’s allegations to the allegations made in Iqbal and found that, in contrast to Iqbal’s allegations, al-Kidd’s complaint “plausibly suggest[s] unlawful conduct and does more than contain bare allegations of an impermissible policy.” Among other allegations, the complaint contained “specific statements that Ashcroft himself made regarding the post-September 11th e use of the material witness statute,”

N David Horowitz, Kirkland & Ellis LLP

DRAFT as of 1/6/2010 42

and references to “congressional testimony from FBI Director Mueller, stating that al-Kidd’s arrest was one of the government’s anti-terrorism successes -- without any caveat that al-Kidd was arrested only as a witness.” The 9th Circuit concluded that these specific allegations “plausibly suggest something more than just bare allegations of improper purpose; they demonstrate that the Attorney General purposefully used the material witness statute to detain suspects whom he wished to investigate and detain preventatively, and that al-Kidd was subjected to this policy.”

Moss v. U.S. Secret Service

572 F.3d 962 9th Cir 7/16/09 9th Cir Bivens action -- First Amendment

Dismissal (reversal of district court’s denial of motion to dismiss)

Plaintiff-protesters brought First Amendment claims against secret service agents alleging that the agents violated Plaintiffs’ First Amendment rights when they ordered Plaintiffs to move the location of a protest. The 9th Circuit, applying Iqbal, found that the complaint failed under to plead facts plausibly suggesting that the agents moved the Plaintiffs because of their political viewpoint. In analyzing the complaint, the court followed Iqbal’s suggested sequence of disregarding conclusory allegations and determining whether well-plead factual allegations “plausibly give rise to an entitlement to relief.” The court disregarded the complaint’s “bald allegation of impermissible viewpoint-discrimination motive” by the agents finding it “conclusory” and thus not entitled to an assumption of truth. The court also disregarded as conclusory Plaintiffs’ allegations that the agents acted pursuant to a “sub rosa Secret

N The court granted leave to amend because Iqbal post-dated the filing of the complaint.

David Horowitz, Kirkland & Ellis LLP

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Service policy of suppressing speech critical of the President,” finding that allegations of systemic-viewpoint discrimination, without supporting factual allegations were insufficient under Iqbal. The court next looked to the remaining “non-conclusory” factual allegations; namely, (i) that the agents ordered Plaintiffs relocated but left a pro-Bush demonstration alone; (ii) that diners and guests at the inn where the President was staying were allowed to stay close to the president without screening; and (iii) that Plaintiffs were moved by local police over three blocks away from the inn and subjected to abusive police tactics. The court found that these allegations were insufficient to state a claim, noting that they did not plausibly support an inference of viewpoint discrimination.

William O. Gilley Enterps., Inc. v. Atlantic Richfield Co.

2009 WL 4282014, __ F.3d __

9th Cir 12/2/09 9th Cir Antitrust -- Sherman Act §1

Dismissal affirmed

Plaintiffs alleged a price-fixing conspiracy on behalf of wholesale purchasers of California Air Resources Board (CARB) gasoline. Plaintiffs Second Amended Complaint (SAC) alleged that defendants had entered into agreements for the sale and exchange of gasoline purportedly to limit the refining capacity for CARB gasoline or to keep the gasoline off the spot market, away from unbranded competitors. The SAC also alleged that these agreements raised prices for CARB gas in Northern California to supracompetitive levels. The court found Plaintiffs’ allegations inconsistent with Twombly and Iqbal because the complaint did not “clearly assert which individual agreement or agreements constitute[d] in themselves a ‘contract . . . by which the

N The court relied more on Twombly than on Iqbal.

David Horowitz, Kirkland & Ellis LLP

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persons or entities intended to harm or restrain trade.’” The court also found that the complaint did not provide defendants fair notice of the claim and the grounds the claim rested on.

Brocato v. Department of Corrections

2009 WL 3489367

C.D. Cal. 10/26/09 9th Cir Section 1983 Dismissal Plaintiff sued the Department of Corrections, a registered dietitian, a prison warden, and others alleging that Defendants failed to provide him with an adequate diet causing medical injury. Plaintiff alleged deliberate indifference and cruel and unusual punishment under the Eight and Fourteenth amendments. The court initially dismissed with leave to amend and plaintiff filed a First Amended Complaint (FAC). The court determined that the FAC did not state a claim under the Iqbal standard. Analyzing the Eighth Amendment claims, the court noted that while the complaint “repeatedly invokes the elements of the Eighth Amendment claim” the allegations were mere “legal conclusions couched as factual assertions” and thus not entitled to a presumption of truth. The court then moved on to the well-plead allegations, which were that Plaintiff suffered from high cholesterol and triglyceride levels and received a 2250 calorie daily diet. Plaintiff contended that such a diet was nutritionally inadequate and caused him injury. Because the FAC referenced the prison administrative grievance process to establish that one of the defendants had notice of his complaints, the Court took judicial notice of the process when evaluating Plaintiff’s factual allegations. Analyzing these allegations along with

Y David Horowitz, Kirkland & Ellis LLP

DRAFT as of 1/6/2010 45

judicially noticeable facts, the court held that Plaintiff, at best, “raised only a possible or conceivable Eight Amendment claim, not a plausible one.”

Patterson v. O’Neal

- - - F.Supp. - - - , 2009 WL 4282795

N. D. Cal.

Nov. 25, 2009

9th Cir Plaintiffs are former employees of Thelen LLP (“Thelen”), a nationwide law firm that closed its business in 2008. Plaintiffs' Complaint raises only one cause of action against the Law Firm Defendants, alleging violations of the Worker Adjustment and Retraining Notification Act (“WARN” or “WARN Act”).

Dismissal, without oral argument.

The FAC includes conclusory statements that each of the Law Firm Defendants “purchased” one or more of Thelen’s practices. FAC ¶¶ 16, 19, 22, 25, 28. However, the FAC does not describe these purchases, or explain who took part in them or whether there were any negotiations between the Law Firm Defendants and Thelen itself. The Law Firm Defendants maintain that they merely hired the employees that worked in the practice groups that they acquired, and extended partnership offers to Thelen's partners. The Law Firm Defendants argue that this cannot constitute a “sale” under the WARN Act. The FAC offers no details that contradict the Law Firm Defendants' descriptions of the transactions. . . . . Neither the WARN Act nor any related DOL regulation defines “sale.” [emphasis supplied] . . . . As the Brobeck decisions indicate, law firms can and do engage in transactions that can be construed as “purchases” of other law firms under the WARN Act. This Court simply holds that the mere hiring of employees and partners simply does not amount to such a purchase. . . . . Turning to the FAC, the question is whether bare and conclusory allegations that “purchases” took place, FAC ¶¶ 16, 19, 22, 25, 28, are enough to state a claim at the dismissal stage, in the context of alleged

N The court used Twombly to “evaluate conclusory allegations” and ultimately find dismissal warranted.

Jeff Price

DRAFT as of 1/6/2010 46

sales of business between law firms. In order to state a claim that is based on the “sale” of all or part of a law firm's business, Plaintiffs must allege that the Law Firm Defendants actually engaged in a transaction with Thelen, or did something more than merely hire its employees or extend partnership offers to its partners. In addition, “the non-conclusory ‘factual content’ [of the FAC] and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret Servs., 572 F.3d 962, 969 (9th Cir.2009). [emphasis supplied] Even if there is a possibility that discovery could turn up some hypothetical evidence to support a cause of action, Plaintiffs cannot “unlock the doors of discovery” if they are “armed with nothing more than conclusions.” Iqbal, 129 S.Ct. at 1950. [emphasis supplied] . . . . The Court finds that the mere assertions that “sales” took place, without any supporting detail or inferences based on non-conclusory facts, are nothing more than “[t]headbare recitals of the elements of a cause of action ....“ Iqbal, 129 S.Ct. at 1949. This Court may evaluate conclusory allegations in light of “obvious alternative explanation[s]” in order to determine whether they are, in fact, plausible. Twombly, 550 U.S. at 567. The Court notes that it is an extremely common practice for attorneys and partners to move laterally from one law firm to another, particularly when seeking to flee from a failing law firm. The normal migration of attorneys from one firm to another provides an “obvious alternative explanation” for the behavior that Plaintiffs describe as the Law

DRAFT as of 1/6/2010 47

Firm Defendants' “purchase” of parts of Thelen's business. C.f. Id. at 567 (rejecting conclusory allegation that defendants engaged in anticompetitive “conspiracy,” where behavior described by plaintiffs was “just as much in line with” regular market behavior). There is no doubt that the Law Firm Defendants acquired certain clients and employees of Thelen-however, the Court need not accept Plaintiffs' bare attempt to label these acquisitions as “purchases.” Plaintiffs cannot state a claim by using language-i.e., “purchase”-that is, in this context, vague and ambiguous as to whether it includes activity that is covered by the relevant statute. Plaintiffs must instead plead facts that are suggestive of a “sale,” as distinct from the more common practice of hiring attorneys and accepting additional partners.

Total Renal Care, Inc. v. Western Nephrology and Metabolic Bone Disease

2009 WL 2596493

D. Colo. 8/21/09 10th Cir.

Antitrust Counter-claims dismissed

Plaintiff brought claims against numerous defendants claiming they breached, or assisted/induced the breach of non-compete, non-solicitation, and confidentiality agreements. One defendant asserted antitrust counterclaims for monopolization, attempted monopolization, conspiracy to monopolize, and unreasonable restraint of trade. The District Court noted that “the degree of specificity needed to plausibly assert a claim is contextual.” The court then described the antitrust legal principles relevant to the counter-claims asserted and set forth the required pleading standards to sufficiently state a claim. Although the judge found that the defendant sufficiently pled certain aspects of its antitrust claims, the defendant failed to include adequate facts to establish the

N The requisite degree of specificity is contextual.

Jennette Roberts, McKenna Long & Aldridge LLP

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relevant market or any specific intent to monopolize that was shared by the alleged co-conspirators. All counter-claims were dismissed without prejudice to re-filing.

Navigato v. SJ Restaurants, LLC

2009 WL 2487937

D. Kan. 8/14/09 10th Cir.

Default on a commercial lease, seeking unpaid rent and other damages

Motion to dismiss denied

Plaintiff sued defendants claiming they defaulted on a commercial lease and seeking unpaid rent plus other damages. Defendants removed to the United States District Court for the District of Kansas on the basis of diversity jurisdiction. Pursuant to Rule 12(b)(6), Defendants sought partial dismissal for plaintiff’s claim for future rent and damages accruing after Plaintiff allegedly terminated the lease and retook possession of the property. The District Court looked to Kansas law to determine the validity of Plaintiff’s damages claims at the pleading stage and overruled Defendant’s Motion to Dismiss.

N Diversity Jurisdiction Facial Plausibility

Jennette Roberts, McKenna Long & Aldridge LLP

Hall v. Witteman

584 F.3d 859 10th Cir. 10/19/09 10th Cir.

Civil rights, 42 U.S.C. §§ 1983 and 1985 Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-68

Dismissal affirmed

Pro se plaintiff alleged a violation of his rights when he paid a newspaper to run on two occasions an advertisem*nt opposing the election of a local judge, but the newspaper only ran the advertisem*nt once and then ran an advertisem*nt supporting the judge’s election paid for by a group of attorneys, including the county attorney. The plaintiff sued the newspaper, the judge, the attorneys, and others, claiming that “the defendants unlawfully convinced the paper’s publisher” to substitute Plaintiff’s second advertisem*nt for their own, “which contained defamatory remarks about him.” Plaintiff alleged that this violated his rights of free speech and equal protection. The United States District Court for the District of Kansas dismissed the Complaint for failure to state a claim. Fed. R. Civ. P. 12(b)(6).

Y Pleading requirement is context specific Facial plausibility

Jennette Roberts, McKenna Long & Aldridge LLP

DRAFT as of 1/6/2010 49

The Tenth Circuit affirmed after analyzing the context specific pleading requirements necessary to support a civil rights claim under Sections 1983 and 1985 and a RICO claim. The Tenth Circuit held that Plaintiff did not allege state action sufficient to support his civil rights claims, and did not allege a threat of continuing racketeering activity sufficient to support his RICO claims.

Eller v. Experian Information Solutions, Inc.

2009 WL 2601370

D. Colo. 8/20/09 10th Cir.

Fair Credit Reporting Act, 15 U.S.C. §1681 et seq. Colorado Consumer Credit Reporting Act, C.R.S. § 12-14.3-101 et seq. Privacy Act of 1974 Breach of Contract

Dismissal Pro se plaintiff filed a complaint against Defendant alleging that it prepared and provided consumer credit reports concerning Plaintiff that were inaccurate. An attorney entered an appearance on behalf of Plaintiff but at the time of the decision had not sought leave to amend the Complaint. Defendant moved to dismiss, arguing that Plaintiff pled only conclusory allegations. The United States District Court for the District of Colorado noted that “a complaint must contain more than ‘labels and conclusions’” and that, in fact the “Court must disregard averments that ‘are no more than conclusions [which] are note entitled to the assumption of truth.’” The Court construed Plaintiff’s complaint under the standards applicable to a pro se plaintiff and even under that more liberal review dismissed the Complaint, determining that it was comprised of “bald conclusions of law.”

Y Conclusory Statements Jennette Roberts, McKenna Long & Aldridge LLP

Dury v. Ireland, Stapleton, Pryor & Pasco

2009 WL 2139856

D. Colo. 7/14/09 10th Cir.

Breach of Fiduciary Duty, Nondisclosure, and Non-Economic Damages

Dismissal Denied

Plaintiff sued defendants for failing to disclose a conflict of interest. Defendants moved to dismiss two of the three claims asserted (for breach of fiduciary duty and nondisclosure), as well as Plaintiff’s claims

N Plausibility is context specific Diversity Jurisdiction

Jennette Roberts, McKenna Long & Aldridge LLP

DRAFT as of 1/6/2010 50

for non-economic damages. The case was before the United States District Court for the District of Colorado on diversity jurisdiction. The court looked to Colorado substantive law to determine the elements of the claims at issue and the sufficiency of the allegations in support, ultimately denying the motion to dismiss.

Sinaltrainal v. Coca-Cola Co.

578 F.3d 1252

11th Cir. 8/11/09 11th Cir.

Alien Tort Statute (“ATS”) (28 U.S.C. § 1350); Torture Victims Protection Act (“TVPA”) (28 U.S.C. § 1350)

Affirmed dismissal

Plaintiffs, trade union leaders, brought suit against Defendants, beverage makers and bottling companies. Plaintiffs “alleged the systematic intimidation, kidnapping, detention, torture, and murder of Colombian trade unionists at the hands of paramilitary forces, who allegedly worked as agents of the Defendants.” The trial court dismissed for failure to plead factual allegations necessary to invoke subject-matter jurisdiction. The appellate court affirmed dismissal of both the ATS and TVPA claims. Regarding the ATS claims, the Plaintiffs failed to allege state action because their allegation that the paramilitary forces acted under color of law was conclusory. Plaintiffs made “no suggestion” that the Colombian government was even aware of, let alone involved in, the alleged murder and torture. Plaintiffs also failed to allege conspiracy with allegations “based on information and belief.” Plaintiffs vaguely alleged only that the conspiracy involved either payment of money or a shared ideology and failed to allege when or with whom the alleged actor entered into the conspiracy. Regarding the TVPA claims, the court held that subject-matter jurisdiction existed as a federal question under 28 U.S.C. § 1331, so the trial court should have analyzed the issue under Rule 12(b)(6). Plaintiffs alleged the

N 1. The Iqbal and Twombly standards apply to dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1) as well as failure to state a claim under Rule 12(b)(6). 2. The key pleading requirement is plausibility. Simply put, “[a] complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face.” Thus, under Rule 8(a)(2), the “showing that the pleader is entitled to relief” is slightly clarified.

David J. Walz; Carlton Fields

DRAFT as of 1/6/2010 51

same operative facts as those in the ATS claims, which again fell short on the issues of state action and conspiracy. Therefore, the court ordered dismissal for failure to state a claim.

N. Am. Clearing, Inc. v. Brokerage Computer Sys., Inc.

No. 6:07-CV-1503-ORL19KR, 2009 WL 2982834

M.D. Fla. 9/11/09 11th Cir.

(1) Breach of Contract; (2) Conversion; (3) False designation of origin in violation of the Lanham Act; (4) Violation of Florida’s Deceptive and Unfair Trade Practices Act

Motion to Dismiss DENIED.

Plaintiff Broker Computer Systems, Inc. (“BCS”), a California corporation in the business of creating, designing, providing, and maintaining computer securities accounting systems for brokers, alleged that Defendants North American Clearing, Inc. (“NAC”), a stock brokerage firm, and its founder Richard Goble, viewed, copied, reverse-engineered and decompiled program files in breach of the parties agreement. In denying the Defendants’ motion to dismiss the Second Amended Complaint, the court reiterated that “the facts alleged in support of each cause of action must be compared with the elements of that cause of action.” The court then separately compared each claim to the elements of that cause of action. The court held that the plaintiff had pled facts “plausibly establishing” the elements of each claim and, thus, had sufficiently pled the four claims asserted.

N Key phrases include: -“must plead facts plausibly establishing” the elements of each cause of action -“must plead facts which permit a reasonable inference” of supporting each cause of action

C. Meade Hartfield; Lightfoot, Franklin & White, L.L.C.

Hernandez Auto Painting & Body Works, Inc. v. State Farm Mut. Auto. Ins. Co.

Case No.: CV408-256; 2009 WL 2952066

S.D. Ga. 9/14/09 11th Cir.

Tortious interference, Motor Vehicle Accident Reparations Act (“MVRA”), Unjust Enrichment, Injunctive Relief pursuant to MVRA and the Uniform Deceptive Trade Practices Act, Bad Faith

Dismissal without prejudice

In this putative class action, Plaintiff alleged that State Farm “steered” potential customers away from his auto repair shop, and others similarly situated, to repair shops farmed by the defendant with rates and charges below reasonable market value. In dismissing the complaint, the court discussed the complaint’s lack of factual content in light of the pleading standard set forth in Iqbal. The court dismissed claim for tortious interference because defendant was not a “stranger” to the business relationship. Citing Iqbal in a footnote, the court also

N Pleading requirement is relative to circ*mstances—focus is on burden of case to defendant

Alan Poppe; Foley & Lardner

DRAFT as of 1/6/2010 52

noted that the plaintiff’s mere conclusory allegation that defendant acted “without privilege” was a “simple recitation of an element of tortious interference” and insufficient as a matter of law. The court further noted that the claim was subject to dismissal for lack of factual content, finding that allegations of “steering and misrepresentations” were mere “labels for a type of conduct that must be deduced from supporting facts.” Similarly, the court dismissed the MVRA claim because plaintiff alleged only conclusory statements and recitations of the statute, stating that the pleading standard under Rule 8 “demands more than an unadorned, the defendant unlawfully harmed me accusation.”

Gross v. White No. 08-14411, 2009 WL 2074234

11th Cir. 7/17/09 11th Cir.

§ 1983, 8th & 14th Amendments, medical malpractice

Affirmed dismissal

Pro se criminal plaintiff was assaulted by a fellow inmate, necessitating medical treatment. Plaintiff brought claims based on the assault and treatment, alleging cruel and unusual punishment, retaliation, gross negligence on the part of his jailers and medical negligence against personnel for deliberate indifference to his medical condition. The 11th Circuit upheld the trial court’s dismissal of all claims on the following grounds: 1) claims against the State of Florida (Plaintiff’s jailer) were barred by sovereign immunity; 2) claims against criminal sheriff and deputies were barred by immunity; 3) evidence did not show that sheriff and deputies were grossly negligent or indifferent; 4) Plaintiff failed to file a medical affidavit in malpractice action against doctors as required under Florida law; and, 5) evidence was inadequate to support claims of inadequate medical treatment. In

Y Pleading requirement—focus is on burden of plaintiff to support allegations in complaint

William M. Davis; Hawkins & Parnell, LLP

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analyzing the merits of Plaintiff’s medical negligence/indifference claims, the court noted that the medical records available generally established that the treatment of the Plaintiff was proper under the circ*mstances and that no evidence supported Plaintiff’s conclusory allegations. In support of its affirmation of the dismissal of Plaintiff’s medical claims, the court cited Iqbal and parenthetically noted that “the pleading standards set forth in Fed. R. Civ. P. 8 do ‘not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions’” (quoting Iqbal). While discovery was not an issue in the Gross case, it appears that the court cited Iqbal in support of its decision to dismiss Plaintiff’s medical malpractice claims because they were unsupported beyond the allegations of the complaint.

Diaz-Martinez v. Miami Dade County, et al.

No. 07-20914-CIV, 2009 WL 2970468

S.D. Fla. 9/10/09 11th Cir.

Civil rights, 42 U.S.C. § 1983

Partial Dismissal

Plaintiff was falsely convicted of several life felonies. After serving nearly twenty six years in prison, Plaintiff was exonerated of all charges. In his subsequent civil action, the Plaintiff alleged that the Defendant police officers fabricated evidence against him and engaged in other egregious misconduct. In addition to bringing numerous claims against the Defendant police officers, the Plaintiff brought two § 1983 claims against the County, one alleging an unconstitutional pattern and practice and the other alleging that the County failed to properly train and supervise the officers. He also brought a § 1983 supervisor liability claim against the police officer’s superiors. The Court dismissed both claims against the County. Applying Iqbal, the Court found that the Plaintiff failed to state a “plausible claim”

N Application of pleading requirements; Iqbal does not completely bar § 1983 supervisor liability claims.

John Bajger; Office of the Attorney General

DRAFT as of 1/6/2010 54

because he incorrectly identified the mayor, rather than the Board of Commissioners, as having final policy making authority. The Court likewise dismissed the Plaintiff’s “bald” allegation that the County breached its duty to properly train the officers as conclusory, citing Iqbal once again for support. However, the Court found that Iqbal did not bar Plaintiff’s supervisory liability claims against the officer’s superiors. The Defendants argued that Iqbal eliminated § 1983 supervisor liability, but the Court rejected their interpretation as “overbroad.” The Court interpreted Iqbal to hold that “a supervisor cannot be vicariously liable solely for the acts of a subordinate” and affirmed the viability of § 1983 supervisor liability claims in all other instances.

DRAFT as of 1/6/2010 55

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