It turns out that Twiqbal may not be as big of a change as some academics thought, maybe. Howard Wasserman has a detailed post breaking down an FJC report that looks at dismissal rates in the years immediately before and after Iqbal.
Here are the results:
• There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A).
• In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1).
• Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then.
• There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).
Here are some of Howard’s observations:
One explanation for the lack of increased success in those motions might be that Twiqbal is doing its work on the drafting process–plaintiffs are putting more information into their complaints out of an excess of Twiqbal-imposed caution. In addition, there was a 7% increase in overall case filings, suggesting that perhaps Twiqbal is not having the over-deterrent effect many feared.
Specifically, Howard comments about the increase in 12(b)(6) motions with granted with leave to amend?
It is unsurprising that the study found an increase in 12(b)(6) motions granted with leave to amend. Courts dismiss with leave in cases of factual insufficiency, where the plaintiff has not pled enough facts or with enough detail. The whole point of Twiqbal was that plaintiffs must plead more facts and factual detail (even if it is not clear how much more), enough to convince the court the claim is plausible. Follow-up studies will explore what happens after these dismissals with leave to amend: Does the plaintiff replead? Does the defendant move to dismiss the amended complaint? We might expect an indirect effect here–Twiqbal leads to more dismissals with leave to amend, followed by a subsequent 12(b)(6) challenging the amended complaint eventually being granted, this time without leave to amend on the ground that the plaintiff already had multiple opportunities to amend and still had not made factually sufficient allegations. In fact, the study did find that more 12(b)(6) motions in 2010 were challenging amended complaints–this suggests that more amended complaints are being filed, perhaps in response to dismissals with leave to amend, perhaps in general response by plaintiffs to Twiqbal.
Stay tuned, as I’m sure there will be many more studies like this about the effects of fact pleading on court systems.