Outside Publication

Tightening Twiqbal: Why Plausibility Must Be Confined to the Complaint, The Federal Courts Law Review, Volume 9, Issue 2


The Supreme Court formally retired Conley v. Gibson’s “no set of facts” pleading standard seven years ago. In its place, the Court moved to the more demanding plausibility pleading regime first articulated in Bell Atlantic Corp. v. Twombly and later applied in Ashcroft v. Iqbal.

Facing its retirement, however, the Conley standard did not drive its Oldsmobile down to Florida for a life of community center bingo and early-bird specials. Rather, its applicability—in the context of affirmative defenses—remains an unsettled issue dividing this nation’s federal district courts. And with no federal appellate tribunal providing guidance on this issue to date, the Conley standard continues to be gainfully employed within several federal circuits. Indeed, while the majority of federal district courts initially applied Twiqbal plausibility to affirmative defenses, the tide is slowly shifting in favor of applying the Conley standard. This paper argues that returning to Conley in the context of affirmative defenses is more faithful to the text of Rule 8, fair to defendants,12 and efficient for the judiciary.

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