2.4.1 MOTIONS TODISMISS

A motion to dismiss for failure to state a claim upon which relief can be granted is filed in lieu of answering the complaint, pursuant to Rule 12(b)(6). In general terms, this kind of motion can be granted for either of two reasons: the law does not reach the facts, or the facts do not reach the law.

Two hypothetical Title VII cases can help to illustrate these reasons for dismissing a complaint. Title VII provides that “employers” may not terminate an employee based on race, sex, religion, or other factors. The statute defines an employer as someone who employs more than 15 employees. Among other elements, the plaintiff must establish that the employer had knowledge of the protected status at the time of the termination.

First, if a plaintiff filed a Title VII action even though he or she worked for a company with only ten employees, the company would probably file a motion to dismiss. The court would not analyze whether the allegations of discrimination were valid or invalid. Instead, it would consider whether the law reaches the facts by asking, “even if these allegations are true, can this plaintiff recover against this defendant under this statute?” The plaintiff in this example could never recover against this defendant under Title VII, because the law does not support this type of claim: Title VII does not apply to employers with fewer than 15 employees. Accordingly, the court would grant the motion to dismiss.

In another case, a plaintiff might file a Title VII claim and allege that he was terminated based on his religion. Suppose that the complaint merely claimed that he had been fired because of his religion (a legal conclusion) but did not allege facts that indicated that the defendant employer had knowledge of the plaintiff’s religion. Again, the defendant would probably file a motion to dismiss. The court would consider whether the facts reach the law by evaluating the facts pled in the complaint, asking whether the plaintiff had alleged facts that were sufficient to plausibly allow that plaintiff to establish the foundational fact that defendant knew the plaintiff’s religion at the time of the termination.

In general, the standard for a motion to dismiss tries to balance the needs of plaintiffs, of defendants, and of the judicial system. The plaintiff need not specify every detail of his or her claim, but the complaint must give the defendant fair notice and must contain either direct or indirect allegations as to all of the claim’s material elements. Federal courts generally refer to two twenty-first-century cases from the United States Supreme Court when analyzing motions to dismiss.

In 2007, the United States Supreme Court decided Bell Atlantic v. Twombly, 550 U.S. 544 (2007). In that case, a somewhat complex antitrust cause of action, the Court arguably made the plaintiffs’ job a little more difficult. The Court seemed to require more than mere notice pleading, holding that while “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations... a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at 555 (citations omitted). The Court noted that “[f]actual allegations must be enough to raise a right to relief above the speculative level” but that “the assumption” is “that all the allegations in the complaint are true.” Id.

Two years later, the Court decided a post-9/11 anti-discrimination case, Ashcroft v. Iqbal, 556 U.S. 662 (2009). The Court reaffirmed its decision in Twombly and articulated a standard that it called “context-specific” and rooted in “judicial experience and common sense”:

[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When 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.⁴⁴

Although the Court took care to say that a “plausibility” requirement is “not akin to a probability requirement,” id. at 1949, some commentators are concerned that this standard puts too much of a burden on plaintiffs, arguing that many plaintiffs will be unable to craft a “plausible” complaint without discovery.⁴⁵ In fact, in 2009, the “Notice Pleading Restoration Act” was introduced in Congress to restore the preTwombly standard of review.⁴⁶Currently, however, the new standards are the law.

Accordingly, the careful pleader will be sure to make the complaint’s allegations as factspecific as possible. Even after Twombly and Iqbal, courts will construe the factual allegations as true. But if the court can be convinced that the plaintiff cannot plausibly establish a set of facts that will entitle him or her to relief — either because the law does not apply to that set of facts or because the set of facts alleged is too speculative, incomplete, or implausible — the court will dismiss the complaint before trial, and often before significant discovery has occurred.