Anand Agneshwar, a partner in Arnold & Porter LLP’s New York office, co-chairs the firm’s product liability litigation practice group. He can be reached at Anand.Agneshwar@aporter.com.
Paige Sharpe, a litigation associate in Arnold & Porter’s Washington, D.C., office, focuses her practice on complex commercial litigation, including product liability cases. She can be reached at Paige.Sharpe@aporter.com.
Five years have elapsed since the U.S. Supreme Court articulated a new iteration of the pleading standard underFederal Rule of Civil Procedure 8(a) in Bell Atlantic Corp. v. Twombly,1 and three years have passed since the Court clarified the scope and application of Twombly in Ashcroft v. Iqbal.2 Those cases generated immediate buzz among academics, practitioners, and legislators. While the torrent of commentary appears to be slowing in the academic and legislative spheres,3 Twombly and Iqbal remain an oft-used, potentially potent weapon in the courtroom. In the products realm in particular, defense attorneys repeatedly have employed Twiqbal motions to win dismissals of complaints or to force plaintiffs to say in their complaints—and not after discovery—precisely what they seek to prove. This article discusses the analysis in which counsel should engage in deciding whether to file a Twiqbal motion as well as best practices for drafting the motion.
THE TWIQBAL TWO-STEP
First, a refresher. Under Rule 8(a), a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”4 For more than 50 years before Twombly, the oft-quoted language of Conley v. Gibson provided the standard for evaluating a motion to dismiss: “a complaint should not be dismissed for failure to state a claim 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.”5 Twombly retired the “no set of facts” language of Conley, and in its place issued a plausibility standard under which plaintiffs must provide “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”6 In order to “nudge their claims across the line from conceivable to plausible,” plaintiffs must provide a complaint with “enough heft to show that the pleader is entitled to relief.”7 As justification for its holding, the Court cited the need “to avoid the potentially enormous expense of discovery in cases with no reasonably founded hope that the discovery process will reveal relevant evidence.”8
Twombly involved antitrust claims, raising questions about whether its pleading directives applied in all civil cases in federal court.9 The Court answered in the affirmative in Iqbal,10 and further reiterated that “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.”11 As a result, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”12 Based on these principles, Iqbal set forth a two-step process for assessing the sufficiency of a complaint. The analysis begins “by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.”13 After weeding out conclusory assertions, a court should consider whether the remaining “well-pleaded factual allegations . . . plausibly give rise to an entitlement to relief.”14
TWIQBAL MOTIONS IN PRODUCTS CASES
The sheer number of cases applying Twombly and Iqbal makes it a challenge to keep abreast of developments in the case law,15 even in a discrete practice area such as product liability litigation. Empirical analyses chiefly have looked at the impact of Twombly and Iqbal across federal civil litigation as a whole,16 and their conflicting methodologies and interpretive frameworks have generated mixed reviews of trends in the case law.17 A 2011 law review article, for example, which focused on pharmaceutical and medical device litigation, concluded that “Iqbal is not having a dramatic impact on this cohort, although its impact cannot be conclusively dismissed as inconsequential either.”18 The author found that the deciding court relied on Iqbal in granting a dismissal in about 21 percent of the 264 cases studied,19 but noted a pattern of reducing incidence, no obviously explainable geographic concentrations, and a frequent grant of amendment opportunities.20
There are suggestions, however, that products litigators are successfully capitalizing on the Twiqbal standard. The Drug & Device Law blog reviewed 354 Twiqbal motions in August 2009 and concluded both that “there’s precedent out there for dismissing virtually any product liability-related claim under Iqbal/Twombly—provided the complaint is vague enough,” and that “the pace and scope of Iqbal/Twombly dismissals in product liability cases is increasing.”21 The blog keeps a “Twiqbal cheat sheet” with a running tab of outcomes covering a range of claims, from negligence to warranty to strict products liability, and listed more than 90 wins as of the end of April 2012.22
TO FILE OR NOT TO FILE
EVALUATE THE JUDGE
Although it may be difficult to spot clear trends in the litigation, any given federal judge—unless new to the bench—almost certainly has applied Twiqbal more than a handful of times. The first step in evaluating a complaint is thus assessing your assigned judge’s inclinations. Whether your judge has ruled on a Twiqbal motion in another products case in particular is, of course, valuable information in deciding whether to file such a motion.
Beyond simply running a search for citations to Twombly and Iqbal by your judge, you may have other resources at your disposal to determine whether the judge would likely grant your motion. To the extent one of your goals may be to educate the judge about the underlying facts, see discussion infra, it would be useful to know whether the judge is likely to embrace the opportunity to learn about the case or to disregard background information. Even if your judge has not ruled on a Twiqbal motion in the products arena, other district judges in the jurisdiction—or even the appellate court—may have issued such rulings.23
EVALUATE THE COMPLAINT
In order to assess the strength of a potential Twiqbal motion—and as a pre-drafting exercise—you should assess the strength of the individual claims of the complaint. Pre-Iqbal case law typically provides that a complaint must adequately allege the individual elements of the claim on which the plaintiff’s theory of liability is based.24 AfterIqbal, a court must conduct a close comparison between the essential elements of proof and the factual allegations in a complaint to determine whether the plaintiff has adequately stated a claim. Dismissals of products cases under the Twiqbal regime typically are based on the plaintiff’s failure to allege facts to support an essential element of a claim, such as how a product is defectively designed (design defect claim) or what about the product labeling is insufficient (failure to warn claim).25 A complaint that is missing essential elements of a claim—or that contains only conclusory allegations regarding those elements—is vulnerable to attack.
This assessment requires casting a critical eye on the complaint. Disregard its length: A 100-paragraph pleading replete with boilerplate language is as subject to a Twiqbal motion as a skimpy 10-paragraph complaint.26 Resist relying on your familiarity with the facts behind an allegation. For example, a generic citation to promotional materials in a failure to warn case should be insufficient if the plaintiff never identifies specific advertisements and how they are relevant to his or her claims, e.g., because he or she viewed them and relied on them in using the product. A blanket statement that the risk of the product outweighs its benefits is a conclusory allegation that does not advance a design defect claim.
On the other hand, if the motion does not seem strong in light of a well-crafted complaint, opening the case with a losing pleading motion is not helpful, so choose your battles carefully.
EVALUATE YOUR GOALS
A Twiqbal motion can have ancillary benefits beyond the grant or denial of the motion, and these should go into the analysis of whether to file. First, a plaintiff may offer to amend if the motion is withdrawn or the court may grant leave to amend rather than dismiss with prejudice. In either circumstance, the net result is a complaint with facts on the table. Second, a motion might limit a case by resulting in partial dismissal; for example, design defect claims may be dismissed because the plaintiff has not cited a feasible alternative design, but failure to warn claims may proceed because the plaintiff has specifically alleged a purported deficiency in the product labeling. Third, the motion can allow you to preview coming arguments and develop themes, thereby educating the judge on the substance of the case and creating opportunities to emphasize your position. Note that this opportunity also puts a premium on early preparation; counsel must get up to speed quickly on the underlying facts, the applicable law, and the defense theory of the case.
A Twiqbal motion conversely can have unintended negative effects, which you should also consider. Just as the motion can educate the judge, it can tip your hand to the plaintiff, giving him or her an early opportunity to begin developing an opposing strategy to your specific arguments. The motion also may provide the plaintiff with a roadmap for how to amend the complaint in a way that makes it more substantive and focused, resulting in a pleading that is more difficult to defeat. Moreover, an adverse decision risks unfavorable law of the case that could weaken a later summary judgment motion. Finally, you should limit the motion to matters contained in the complaint, with perhaps some citation to matters of public record,27 or you risk having it converted prematurely into a motion for summary judgment.
Once you have decided to draft the motion, but before putting pen to paper, check and double-check the local rules and the judge’s standing orders. Such guides not only provide technical requirements such as page limits and margin settings, but also may impose rules on how motions to dismiss are filed.28 Judges may require that the moving party first meet and confer with opposing counsel, or may obligate the moving party to seek permission of the court to file the motion. Local rules and standing orders thus may inform decisions about when to file and whether, for example, to allow the plaintiff a shot at amendment in advance of the motion.
The background section of the motion provides an ideal opportunity to educate the judge about the product involved and associated qualities, such as the breadth of its use and the adequacy of its warnings. You may consider attaching the product label to the motion or citing, in a prescription drug case, to the drug approval history by FDA.29 If other courts have considered and dismissed similar claims, especially claims involving your product, those cases deserve a citation here.
In regard to the legal standard and argument, Iqbal itself provides the two-step roadmap for a Twiqbal motion. Explain which allegations the judge should disregard as conclusory, and how the remaining factual allegation fails to address essential elements of the plaintiff’s claim.
You may want to preview the plaintiff’s likely arguments in order to draw the sting, or you may prefer to see whether the plaintiff in fact raises such points and then address them, if need be, in the reply. Consider whether to seek dismissal with prejudice in your opening brief or, upon the plaintiff’s failure to address the complaint’s defects in the opposition, make the case for dismissal with prejudice in the reply.
Finally, you should strategically order multiple arguments, especially to the extent that you are seeking dismissal of multiple claims. Does it make sense to attack the claims in the order in which they are presented in the complaint, or do you lead with your strongest position? Do you leave your weakest argument for last, or do you bury it in the middle? Can you group claims because they all are subject to the same attack? For example, in a state that abrogates common law products liability claims,30 you may want to address any and all non-statutory claims by simply stating that they are not viable. Also consider whether and when to raise arguments in the alternative, e.g., your motion may address both the plaintiff’s standing to bring a claim and his or her failure to plead the claim adequately. You will need to decide which to argue first and whether your points may dovetail.
A few words regarding the reply. Given the rapid pace of Twiqbal decisions, case law developments may well have occurred since the time that you filed your opening brief. It is especially important in the Twiqbal context, therefore, that you recheck the cases you cited in the opening and run a search for any new opinions.
Your strategic considerations should focus on which opposition points to rebut and which of your arguments the opposition concedes or does not address. If the opposition fails to explain how the plaintiff would cure any defects, consider arguing futility as the basis for dismissal with prejudice.31 If the opposition requests leave to amend, check the local rules to see whether the plaintiff complied with any applicable requirements and whether case law allows dismissal with prejudice for non-compliance.32
If the opposition suggests that the plaintiff needs discovery in order to allege claims adequately, return to Twombly and Iqbal: They require adequate pleading before exposing a defendant to the burden and expense of discovery.33
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