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Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark Law Review 15 (2010), at SSRN.

In Bell Atlantic v. Twombly, 550 U.S. 544 (2007), the Supreme Court adopted a plausibility test for pleading federal claims, replacing the more liberal standard from Conley v. Gibson, 355 U.S. 41 (1957), which had permitted a case to proceed “unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”  Id. at 45-46.  While Twombly was an antitrust case, the Supreme Court made clear in Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), that the newly announced plausibility standard would apply to all civil cases.  In her recent article, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, Professor Suja A. Thomas demonstrates how these recent Supreme Court decisions have transformed the motion to dismiss into the motion for summary judgment.  This piece builds off of the strong foundation Professor Thomas has already established in this area, including her articles Why the Motion to Dismiss is Now Unconstitutional, 92 Minn. L. Rev. 1851 (2008), and Why Summary Judgment is Unconstitutional, 93 Va. L. Rev. 139 (2007).  The piece highlights the difficulties employment discrimination plaintiffs may now face when opposing a motion to dismiss.

In this article, Professor Thomas examines how, after Twombly and Iqbal, the standards for the motion to dismiss and the motion for summary judgment are now nearly identical.  In particular, both standards require a court to look to whether a claim is plausible.   After Iqbal, the plausibility test now clearly applies to motions to dismiss, and Professor Thomas demonstrates how the plausibility standard has similarly been applied in the summary judgment context.  In addition, for both the motion to dismiss and the motion for summary judgment, “courts assess both the inferences favoring the moving party and the inferences favoring the nonmoving party.”  (P. 30.)  Finally, according to Professor Thomas, when considering either type of motion, the courts are actively using their own opinions and views of the evidence to decide whether a particular claim should proceed.

As the two motions are “converging,” (P. 31), Professor Thomas points to some of the similar effects of this result.  She believes that the judiciary will now play a greater role in resolving disputes, likely resulting in a higher number of dismissals.   Professor Thomas views employment discrimination cases as one area where plaintiffs may be particularly vulnerable in this regard.  Pointing to several studies which have already been performed on the impact of the plausibility standard, she argues that “given the similarity of the motion to dismiss standard to the summary judgment standard and the propensity of judges to dismiss employment discrimination cases under summary judgment, it seems likely that the [trend to dismiss these cases] will continue.”  (P. 33.)

Perhaps more controversially, Professor Thomas persuasively argues in her paper that the Supreme Court’s decision in Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002), is no longer good law.  Swierkiewicz had held that an employment discrimination plaintiff need not “plead facts establishing a prima facie case.” Id. at 511-12.  Rather, a plaintiff need only comply with Federal Rule of Civil Procedure 8(a)(2), which requires that the plaintiff set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.”  Id.  Professor Thomas identifies an emerging divergence of views in the federal appellate courts – as well as the academic scholarship – over the extent to which the Swierkiewicz decision survives after Iqbal and Twombly.  She maintains that Swierkiewicz is now problematic in that it “appeared to permit conclusory pleading,” (P. 35), which was specifically rejected by the recent Supreme Court decisions.  Similarly, the more relaxed pleading standard found in Swierkiewicz “does not comport,” (P. 36), with the seemingly heightened plausibility pleading standard, which the Court has now established.  And, Twombly rejected the Conley “no set of facts” standard upon which Swierkiewicz at least partially relies.  In light of these concerns, “Swierkiewicz effectively is dead,” (P. 18), and “employment discrimination plaintiffs will effectively need to plead a prima facie case and possibly more to survive a motion to dismiss.”  (P. 35.)

Professor Thomas concludes the article by arguing that the plausibility standard established in Iqbal and Twombly is inappropriate.  Indeed, she finds the change in standards – and the resulting similarity between the motion to dismiss and the motion for summary judgment – to be “inconsistent with the intentions of the rule-makers.”  (P. 38.)  Professor Thomas examines the cost differential between the two motions, and further notes the lower cost of litigating a typical employment dispute when compared to the higher cost of litigation found in a complex antitrust case such as Twombly.  And, she explains that the role of the courts in deciding a motion for summary judgment and a motion to dismiss are decidedly different.  In conclusion, the similarity which the Court has now created between the two motions “call[s] into question whether Iqbal and Twombly were decided properly.”  (P. 41.)

In sum, this article does a superb job of demonstrating how, after Iqbal and Twombly, the motion to dismiss and the motion for summary judgment are now quite similar.  And, this paper explains how this result may prove particularly problematic for employment discrimination plaintiffs – a result which Professor Thomas finds troubling.  As a final note, this article was part of a symposium issue in the Lewis & Clark Law Review on Iqbal and Twombly, and other papers on the topic can be found here.

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Cite as: Joseph Seiner, The Motion to Dismiss for Workplace Plaintiffs after Iqbal and Twombly, JOTWELL (November 15, 2010) (reviewing Suja A. Thomas, The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly, 14 Lewis & Clark Law Review 15 (2010), at SSRN),