Thoughts on law and writing


A word for litigators to know:  Twiqbal


Twiqbal.   Blended from the Twombly and Iqbal cases.  Those cases changed pleading standards, at least for some cases, in federal court.


Karen R. Cole


The standard we all learned in law school was “notice pleading.”   Conley v. Gibson required only a “short and plain statement of the claim” that would give the other side fair notice.  Liberal discovery allowed the parties a way to flesh out the claims and defenses.  And summary judgment gave a way to kick groundless claims out of court.

Bell v. Twombly, decided in 2007, undercut Conley, at least in part, in an antitrust case.  It said that the allegations must be more than “speculative” and must make the claim “plausible.”

A few years later, in a civil rights case, Iqbal v. Ashcroft undercut Conley further.  Iqbal extended Twombly to all civil cases.  And it applied an even more rigorous standard in a civil rights case.  And it said that in deciding whether a claim is “plausible,” and therefore entitled to proceed to discovery, judges may rely on their “judicial experience and common sense.”

Iqbal says that courts looking at a complaint should go through two steps.  First, the court should identify pleadings that are just conclusions of law.  Then, the court should look at the remaining allegations to see if they “plausibly give rise to an entitlement to relief.”

So, under Conley, a complaint was good enough “unless it appear[ed] beyond doubt that the plaintiff can prove no set of facts in support of his claim.”    Under Twombly and Iqbal, the claim must be something more.  It must be “plausible.”  But what is plausible?   It must be somewhere between “possible” and “probable.”

Many federal cases have cited Twombly and Iqbal.

And much ink has been spilled and pixels spent deciding how much of a change in practice these cases have made.

But what about Minnesota?  Do these standards apply in our state courts?

Seven Minnesota appellate cases have cited Twombly.  None have taken the next step and cited Iqbal.

The first Minnesota Supreme Court cases citing Twombly mentioned it in passing.  They cited the case without really applying it.  Hebert v. City of Fifty Lakes, 744 N.W.2d 226, 235 (Minn. 2008); Lorix v. Crompton Corp., 736 N.W.2d 619, 631 (Minn. 2007).

A subsequent case – Bahr  v. Capella University – cites Twombly and refers to plausibility.  It’s not clear, though, that the case turned on plausibility; the court’s use of that word may well be dicta.  Bahr, 788 N.W.2d 76, 80, 82 (Minn. 2010).

Taken together, though, our Minnesota cases do signal some greater attention to pleading by our courts.

Watch for more as this area evolves.