State Court Motions To Dismiss: Conley, Twombly, Or None Of The Above. | I. Glenn Cohen | July 03, 2013


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State Court Motions To Dismiss: Conley, Twombly, Or None Of The Above.

Twombly and Iqbal, interpreting and applying the Federal Rules, only formally apply to cases brought in federal court.  What impact have Twombly and Iqbal had on cases filed in state courts instead?  Professor Spencer seeks to answer exactly that question. Benajmin Spencer, "Pleading in State Courts After Twombly and Iqbal,” Remarks at the Pound Civil Justice Institute 2010 Forum for State Appellate Court Judges (July 10, 2010) (transcript available at

Professor Spencer divides states’ approaches to pleading into three categories: those that follow the Federal Rules of Civil Procedure, those that do not follow the Federal Rules but nevertheless maintain a notice-pleading regime, and those that require fact pleading.  Id. at 14-17.  Referring to the first group of states, the so-called “Replica States,” Professor Spencer explains,

Over half of the states and the District of Columbia have procedural rules that replicate or are based largely on the Federal Rules of Civil Procedure, whether enacted by rule or by statute. Among these states—which in many cases treat federal court interpretation of the Federal Rules as relevant to their own interpretation of their respective state procedural rules—the question of whether to follow the Supreme Court’s revision of the general pleading standard is most directly presented. As it turns out, the courts in such states have not universally embraced Twombly and Iqbal but rather have split on that issue.

Id. at 14.  Professor Spencer notes that seven of these states have chosen to follow the pleading requirements of Twombly and Iqbal (see, e.g., Iannacchino v. Ford Motor Co., 888 N.E.2d 879, 890 (Mass. 2009) (“[W]e take the opportunity to adopt the refinement of [the pleading] standard that was recently articulated by the United States Supreme Court in Bell Atl. Corp. v. Twombly. We agree with the Supreme Court’s analysis of the Conley language . . . and we follow the Court’s lead in retiring its use.”)), seven others have explicitly declined to do so (see, e.g., Colby v. Umbrella, Inc., 955 A.2d 1082, 1086 n.1 (Vt. 2008) (“[W]e have relied on the Conley standard for over twenty years, and are in no way bound by federal jurisprudence in interpreting our state pleading rules. We recently reaffirmed our minimal notice pleading standard . . . .”)), and the remainder have either not discussed or not decided whether to follow Twombly and IqbalId. at 14-17.

Further, the states that require notice pleading but do not follow the Federal Rules have either not discussed or not decided whether to apply the Twombly and Iqbal approach.  Id. at 17.  Finally, and unsurprisingly, the Twombly/Iqbal decisions did not impact the seventeen states that require fact pleading; after all, the cases only moved the federal courts in that direction.  Id.


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August 29, 2013

pleading frcp 12(b)(6)

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