From Virginia Lawyers Weekly:
By David Frank and Alan Cooper
Published: June 15, 2009
The U.S. Supreme Court has set a higher hurdle for a plaintiff filing a civil complaint in federal court.
In 2007 the court issued an antitrust case that heightened the standard of proof required to survive a motion to dismiss in federal court.
A new case makes it clear that the higher standard is applicable across the board, according to civil litigators.
On May 18, the Supreme Court in Ashcroft v. Iqbal confirmed that the pleading standard first articulated in Bell Atlantic Corp. v. Twombly two years ago applies to all federal civil complaints.
The court elaborated on its finding in Twombly that a plaintiff must allege enough facts to state a claim for relief that is plausible on its face. The plausibility standard stops short of probability, but “it asks for more than a sheer possibility that a defendant has acted unlawfully,” Justice Anthony Kennedy wrote for the 5-4 majority in Iqbal.
Charlottesville attorney R. Lee Livingston questioned the plausibility concept.
“Plausible is not a term used in the law before,” he said.
Adding it to the equation does little to clarify the law, he added. It merely provides a federal judge with “a new bigger hammer to knock down a case right from the beginning,” he said.
