Rule 15 a Limited Safety Net for 12b6 After Iqbal ILR96 4 Reuland

8/3/2019 Rule 15 a Limited Safety Net for 12b6 After Iqbal ILR96 4 Reuland

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Rule 15: A Limited Safety Net for12(b)(6) Dismissal After Iqbal

Thomas A. Reuland

ABSTRACT: The Supreme Courts recent decision in Ashcroft v. Iqbalincreases the likelihood that a judge will dismiss a case for failure to state a

claim. This Note presents a motion strategy to avoid final dismissal. As a

foundation for this strategy, this Note argues that Federal Rules of Civil

Procedure 8 and 15, especially after recent changes to both rules, diverge:

Iqbal discourages litigation by effectively raising the federal pleadingstandard of Rule 8, yet Rule 15 encourages litigation by liberally allowing a

party to amend pleadings. This Note further argues thatIqbals changes toRule 8 actually enhance Rule 15s ability to provide litigants with a method

to challenge dismissal and maintain access to the courts. In other words,Iqbals aim of restricting litigation actually encourages it. At the same time,however, Iqbal has increased the time and cost associated with bringing aclaim in federal court. This effect privileges wealthy litigants and is

inconsistent with the historical spirit of federal procedure.

I. INTRODUCTION.................................................................................... 1405

II. BACKGROUND ...................................................................................... 1407A. THEFEDERALPLEADINGSTANDARDIS INFLUX................................ 1407B. RECENTDEVELOPMENTS INRULE15............................................... 1413

1. Amending as a Matter of Course ........................................ 14132. Amending with Leave of the Court..................................... 1415C. CIRCUITCOURTSDISAGREEABOUTAMENDING ACOMPLAINT

AFTER12(B)(6)DISMISSAL............................................................. 14171. Amending After the Rule 15 Revisions .............................. 14172. Rule 15s Recent Changes Do Not Resolve the Circuit

Split ....................................................................................... 14193. The Most Restrictive Mandate to Courts: Give Leave or

Give a Good Reason for Denying Leave ............................. 1421

J.D. Candidate, The University of Iowa College of Law, 2011; B.A., Brown University,2005. I am indebted to the College of Law faculty, the members of the Iowa Law Review, andother colleagues for their input and guidance.


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1404 IOWA LAW REVIEW [Vol. 96:1403

III. AMENDING APLEADINGAFTER12(B)(6)DISMISSAL ........................... 1422A. COURTSLIBERALLYGRANTLEAVETOAMEND WHEN12(B)(6)

MOTIONSAREINVOLVED................................................................ 1422B. REASONSTODENYLEAVE............................................................... 1423C. AMOTIONSTRATEGY THATHARNESSESRULE15 ANDIQBAL .......... 1425

IV. CONCLUSION ....................................................................................... 1426


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I. INTRODUCTION

This Note explores the outer limits of two Federal Rules of CivilProcedure that control access to the courtsRules 8 and 15.1 Rule 8requires a pleading to contain a short and plain statement that gives theopposing party notice of the pleaders claim.2 Rule 15 states that courts

should freely give leave to amend complaints.3 In enacting these rules, thedrafters hoped to equip judges with a liberal standard for assessing claimsa standard that does not bar access to justice.4

However, in 2009, the Supreme Court tightened this liberal standard.5In Ashcroft v. Iqbal, the Court unapologetically confirmed its desire to rein inthe outer limits of Rule 8.6 As a consequence of this decision, a descriptionof the federal pleading standard is no longer short and plain; instead, it isladen with buzzwords to which trial and appellate courts must assignmeaning.7 In the wake of the Courts decision in Iqbal, a flood of criticismhas examined Iqbals impact on ethical, procedural, and economic issues.8

1. FED.R.CIV.P. 8, 15. This Note refers to the Federal Rules of Civil Procedure as theFederal Rules or Rules and individual parts of the Rules as Rule followed by the number(e.g., Rule 8) unless noted otherwise.

2. Id. 8. As of the latest printing, Rule 8(a) states:

(a) CLAIM FORRELIEF. A pleading that states a claim for relief must contain:(1) a short and plain statement of the grounds for the courts jurisdiction. . . ;(2) a short and plain statement of the claim showing that the pleader isentitled to relief; and(3) a demand for the relief sought . . . .

Id. 8(a).

3. Id. 15(a)(2).

4. See Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the LowerCourts AfterBell Atlantic Corp. v. Twombly, 41 SUFFOLKU.L.REV. 851, 85354 (2008); MichaelE. Smith,Judge Charles E. Clark and the Federal Rules of Civil Procedure, 85 YALE L.J. 914, 918, 923(1976). Moreover, Rule 1 explains the goals and purpose of the Rules: They should beconstrued and administered to secure the just, speedy, and inexpensive determination of everyaction and proceeding. FED.R.CIV.P. 1.

5. See The Supreme Court, 2006 TermLeading Cases, 121 HARV. L. REV. 305, 30809(2007) [hereinafter Leading Cases] (explaining that this new change runs counter to the text ofthe Rules, Supreme Court precedent, and the historical purpose of notice pleading).

6. 129 S. Ct. 1937 (2009).

7. In a public speech, Justice Ginsburg chided these buzzwords that purport to clarifytodays pleading standard, concluding: In my view, the Courts majority [in Bell Atlantic Corp. v.Twombly, 550 U.S. 544 (2007),and Iqbal] messed up the Federal Rules. Ruth Bader Ginsburg,

Assoc. Justice, Supreme Court of the U.S., Remarks for Second Circuit Judicial Conference

(June 12, 2009), available at http://www.supremecourt.gov/publicinfo/speeches/viewspeeches.aspx?Filename=sp_06-12-09.html.

8. See, e.g., Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment onAshcroft v. Iqbal, 85 NOTRE DAME L.REV. 849, 86785 (2010); Arthur R. Miller,FromConleytoTwomblytoIqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1 (2010); A.Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 LEWIS &CLARKL.REV. 185


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This Note contributes to this criticism by isolating Iqbals relationship toa rule that the academic literature rarely addresses but the practicinglitigator often usesRule 15. Rule 15 allows a party to amend a pleading,even a pleading that faces dismissal for failure to meet the federal pleadingstandard described in Rule 8.9 While much of the existing literaturediscusses the pleading standards general consistency with other rules, this

Note focuses on Rules 8 and 15.10

Following this introduction, Part II summarizes the development of the

federal pleading standard under Rule 8 and describes recent changes to apartys ability to amend a pleading under Rule 15. As Part II demonstrates,the key language of Rule 8 and Rule 15short and plain and freelygiven, respectivelyreflects the general unity of the Federal Rules.

The more novel revelation of this Note is that a litigant can use Rule 15to solicit a single courts idiosyncratic perspective on the federal pleadingstandard. Part III provides the foundation for this conclusion by drawingfrom the debate among circuit courts over Rule 15 amendments. Comparedto Rule 8, Rule 15 is clear and developed even though circuit courts

disagree about certain aspects of the rule. A paradox arises out of the gulfbetween Rule 15s developed jurisprudence and Rule 8s shifting standard: Although the Federal Rules of Civil Procedure share common goals andideals, a single rule that courts have clearly developed can influence adifferent rule that might not be as clear.

With this paradox in mind, Part III then proposes that rather than allowthe restrictions of Rule 8 to upset the liberal standard of Rule 15, parties caninstead harness Rule 15 to counterbalance the newly tightened Rule 8,preserve access to the courts, and even reincarnate a claim that a courtdismisses under the Iqbalstandard. The operation of Rule 15 is not as foggyas that of Rule 8, and applying this liberal rule to pleadings can recapture

the dispositions that the federal pleading standard has abandoned sinceIqbalreshaped the meaning of Rule 8.This strategy, however, is only a silver lining to a dark cloud. Part IV of

this Note considers practical applications of this strategy and concludes withsome pessimistic predictions. While the Iqbal standard will not necessarily

(2010); Tony Mauro, Ashcroft Ruling Adds Hurdle for Plaintiffs: U.S. Supreme Court Decision inIqbalCould Make It Easier for Defendants To Dismiss Civil Complaints, NATL L.J., May 25, 2009, at 11.

9. SeeFED.R.CIV.P. 8, 12(b)(6), 15.

10. Previous scholarship reveals the modesty of this Notes contribution to the literature.See,e.g., Patricia W. Hatamyar, The Tao of Pleading: DoTwomblyandIqbal Matter Empirically?, 59

AM. U. L. REV. 553 (2010) (evaluating the dismissals before and after Twombly through a

multinomial logistic regression on 1039 cases); Miller, supranote 8; Adam N. Steinman, ThePleading Problem, 62 STAN. L. REV. 1293 (2010) (imagining a new type of pleading standard:plain pleading); John P. Sullivan, TwomblyandIqbal: The Latest Retreat from Notice Pleading, 43SUFFOLKU.L.REV. 1 (2009) (providing both an encyclopedic and critical assessment of federalpleading before and after Iqbal). In fact, this Notes scope does not extend beyond the first twosubsections of Rule 15 or consider nonfederal actions.


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bar meritorious claims, the claims will take longer and cost more to litigate.These barriers to the judicial processtime and moneyare most damningto litigants with few resources. Moreover, these shortcomings conflict withthe overarching spirit and purpose of the Federal Rules, including Rule 8.The next Part begins by tracing the development of the federal pleadingstandard and highlighting the most recent developments in the pleading

standard and amendment rules.

II. BACKGROUND

The Federal Rules operate as a cohesive whole to secure the just,speedy, and inexpensive determination of every action and proceeding.11The plain meaning of Rule 8 advances the overarching goals of the Rules.12Rule 8 states that pleadings must contain short and plain statements about where a party can sue, why it can sue, and what relief it seeks.13 As oneprominent commentator explains, [T]he functioning of all the proceduresin the federal rules for . . . discovery, liberal amendment, judicialmanagement, and [others] are intertwined inextricably with the pleading

philosophy embodied in Rule 8.14

The Advisory Committee furthersupports the interconnectedness of the Rules by acknowledging that Rule8s meaning emerges not only from the rules plain meaning and the relatedforms, but also from other intermeshing rules.15 However, as this Partdemonstrates, recent developments have upset the harmony of the FederalRules.

A. THEFEDERALPLEADINGSTANDARDIS INFLUX

Every civil case in federal court begins with a complaint.16 As a type ofpleading,17 the complaint must meet the federal pleading standard thatRule 8 describes.18 Moreover, the Federal Rules provide forms that

exemplify sufficient pleadings; half of these examples are each four

11. FED. R. CIV. P. 1; see also Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821 (2010) (explaining the interconnectedness of theRules).

12. SeeSmith, supranote 4, at 92223 (discussing the pleading jurisprudence of CharlesClark, one of the principal drafters of the Rules).

13. FED.R.CIV.P. 8(a).

14. 5 CHARLESALAN WRIGHT &ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1202, at 88 (3d ed. 2004).

15. ADVISORYCOMM. ON RULES FORCIVIL PROCEDURE,REPORT OF PROPOSEDAMENDMENTSTO THE RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS 19 (1955),reprinted in5 WRIGHT &MILLER,supranote14, 1201, at 86 n.11.

16. FED.R.CIV.P. 3 (A civil action is commenced by filing a complaint with the court.).

17. Id. 7(a)(1).

18. Id. 8(a).


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sentences long.19 If a party fails to follow Rule 8, Rule 12(b)(6) permits theopposing party to file a motion to dismiss the lawsuit for failure to state aclaim.20

The central language of Rule 8the plaintiff must file a short andplain statement of the claim showing that the pleader is entitled to reliefhas remained the same since 1938.21 Courts commonly refer to this federal

standard as notice pleading22

because, on a basic level, this standardrequires the plaintiff to notify the court and defendant of its claim in simpleterms.23 Notice pleading emerged nearly a century ago, after litigants andjudges realized that the pleading standard at the time, code pleading, was socumbersome that it sometimes barred meritorious claims.24 Even thoughthe notice-pleading standard emerged as a means to simplify codepleading,25 from the time of its inception the new standard has sparkeddebates that are far from short and plain.26

In 1957, the Supreme Court decided a case that became noticepleadings standard-bearer for decades.27 In Conley v. Gibson, the Court

19. Id.FORMS 1112. For example, a negligence claim that arises under a federal questionwould meet the Rule 8 pleading standard if it includes only these short lines:

1. This action arises under a federal statute, < > U.S.C. < >.2. On January 1, 2010, in Blackacre, the defendant negligently drove a motor

vehicle against the plaintiff.3. As a result, the plaintiff was physically injured, lost wages or income, sufferedphysical and mental pain, and incurred medical expenses of $ < >.Therefore, the plaintiff demands judgment against the defendant for $ < >,plus costs.

See id. FORM 11.

20. Id. 12(b)(6).

21. CompareFED.R.CIV.P. 8(a)(2) (1938) (current version at FED.R.CIV.P. 8(a)(2)), withFED.R.CIV.P. 8(a)(2).

22. Conley v. Gibson, 355 U.S. 41, 4748 (1957), abrogated by Bell Atlantic Corp. v.Twombly, 550 U.S. 544 (2007); THOMASA.MAUET,PRETRIAL 5.2.1, at 118 (7th ed. 2008).

23. Smith, supra note 4, at 923 (describing how the drafters of the Rules insisted ongeneral statements and minimal facts or legal theories); Koan Mercer, Comment, Even in These

Days of Notice Pleadings: Factual Pleading Requirements in the Fourth Circuit, 82 N.C.L.REV. 1167,1171 & n.27 (2004) (describing how the Rules principle [sic] architect, a Yale law-schooldean turned circuit judge, both prioritized Rule 8s goal of giving notice and minimized theimportance of providing factual support in ones pleading).

24. See Clarke B. Whittier, Notice Pleading, 31 HARV. L. REV. 501, 50102 (1918)(proposing a shift from code pleading to notice pleading).

25. ADVISORYCOMM. ON RULES FORCIVIL PROCEDURE, supranote 15, at 19 (The intentand effect of [Rule 8] is to permit the claim to be stated in general terms . . . .).

26. 5 WRIGHT &MILLER,supranote14, 1201, at 86 (Although there has been very littleactual revision of Rule 8, it has been the focal point of a fair amount of controversy.); see alsoPaul Stancil, Balancing the Pleading Equation, 61 BAYLORL.REV. 90, 10914 (2009) (providing aconcise history of the federal pleading standard).

27. Muriel Goode-Trufant,Dispositive Motions in Federal Court, inCURRENTDEVELOPMENTSINFEDERALCIVILPRACTICE2009, at 37, 52(PLI Litig. & Admin. Practice, Course Handbook


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emphasized the simplicity of notice pleading.28 It instructed judges not todismiss a pleading unless it appears beyond doubtthat the plaintiff can proveno set of factsin support of his claim which would entitle him to relief.29 Thisno-set-of-facts requirement depicted Rule 8 as a liberal standard.30 TheCourt adopted this liberal standard in order to minimize gamesmanship31and inhibit motion strategy as a method for quashing meritorious claims.32

Conleys clarification of notice pleading served as a sound foundation forpleading jurisprudence.33

However, in a dramatic move, the Supreme Court rejected Conleyspleading standard in its 2007 decision Bell Atlantic Corp. v. Twombly.34 The

Ser. No. H-795, 2009) (characterizing the pre-Twombly pleading standard as well settled);Steinman, supranote 10, at 1300.

28. 355 U.S. 41 (1957), abrogated byBell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).The Court explained:

[A]ll the Rules require is a short and plain statement of the claim that will givethe defendant fair notice of what the plaintiffs claim is and the grounds upon

which it rests. . . . Such simplified notice pleading is made possible by the liberalopportunity for discovery and the other pretrial procedures established by theRules to disclose more precisely the basis of both claim and defense and to definemore narrowly the disputed facts and issues.

Id. at 4748 (footnote omitted) (quoting FED.R.CIV.P. 8(a)(2)).

29. Id. at 4546 (emphasis added).

30. Id. at 47; Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94IOWAL.REV. 873, 89293 (2009) (aligning the judicial interpretation of Rule 8 expressed inConleywith a liberal interpretation of the rule).

31. ADVISORYCOMM. ON RULES FORCIVIL PROCEDURE,supranote 15, at 19 ([T]he rulesare designed to discourage battles over mere form of statement and to sweep away the needlesscontroversies which the codes permitted that served either to delay trial on the merits or toprevent a party from having a trial because of mistakes in statement.). See generallyLAWRENCE

M. FRIEDMAN,A HISTORY OF AMERICAN LAW 96 (3d rev. ed. 2005) (discussing how Englishcommon-law pleading led to a type of pretrial gamesmanship that distracted from the merits ofa claim).

32. Conley, 355 U.S. at 48 (noting that all pleadings shall be so construed as to dosubstantial justice before concluding that [t]he Federal Rules reject the approach thatpleading is a game of skill in which one misstep by counsel may be decisive to the outcome andaccept the principle that the purpose of pleading is to facilitate a proper decision on themerits (quoting FED.R.CIV.P. 8(f) (1957) (current version at FED.R.CIV.P. 8(e))) (internalquotation marks omitted)). The Conleydecision was not only an icon of notice pleading but alsoa critique of code pleadings pitfalls.

33. ROYL.BROOKS,CRITICAL PROCEDURE 8586 (1998). Furthermore, courts could easilyreconcile notice pleading with other aspects of the law. SeeErickson v. Pardus, 551 U.S. 89, 94(2007) (per curiam) (suggesting that courts must not forget that the limits of notice pleadingdepend on whether the litigant is pro se: The Court of Appeals departure from the liberal

pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular casebecause petitioner has been proceeding, from the litigations outset, without counsel);Swierkiewicz v. Sorema N. A., 534 U.S. 506, 51011 (2002) (noting that litigants should notconfuse evidentiary standards with pleading standards when determining which facts to includein the pleading).

34. 550 U.S. 544, 555 (2007).


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Court claimed that judges and litigants were oversimplifying the federalstandard that Rule 8 conveyed.35 Moreover, the Court concluded thatConleys no set of facts language . . . . has earned its retirement.36Conleysliberal notice pleading was out, and Twombly filled the void with a morerestrictive standard that litigants must meet in order to have their day incourt.37

In reaching its decision in Twombly, the Court provided a handful ofphrases to indicate what this new standard entailed.38 The Court noted thatthe plaintiffs recovery must be plausible, but not necessarily probable, tosurvive a motion to dismiss.39 Moreover, [f]actual allegations must beenough to raise a right to relief above the speculative level.40 In a dramaticdeparture from Conleys beyond doubt language, the Twombly Courtfurther declared that when plaintiffs do not nudge[] their claims across theline from conceivable to plausible, their complaint must be dismissed.41

Twomblyshocked the legal community.42 Meeting the federal pleadingstandard now required something more than the plain statements espousedby Conley and Rule 8s plain language.43 Perhaps in response to the

confusion, the Supreme Court did not wait another fifty years as it didbetween Conleyand Twomblyto comment on the pleading standard.In early 2009, the Court heard Iqbal. Javaid Iqbal claimed that high-

ranking government officials were personally liable for the conditions of hisconfinement after the September 11, 2001 terrorist attacks.44 He filed aBivens claim45a claim intended to hold government officials liable for

35. Id. at 563 (stating that this standard has been puzzling the profession for 50 years).

36. Id. at 56263.

37. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 433 (2008); Douglas E.

Motzenbecker, Supreme Court Raises the Pleadings Bar Again, LITIG.NEWS, Winter 2010, at 10, 10.

38. See supranote 7 and accompanying text.

39. Twombly, 550 U.S. at 556.

40. Id. at 555.

41. Id. at 570.

42. See, e.g., Bone, supranote 30, at 880 (Twombly triggered a sharp response from theacademic community almost immediately, most of it criticizing the Court for tightening up onpleading requirements.); McMahon, supranote 4, at 858 (The district courts face thousandsof Rule 12(b)(6) motions every year, and while I assume the Supreme Court did not intend tothrow those courts into disarray with its Twomblydecision, that is, in fact, what is happening.);Leading Cases, supra note 5, at 30910 (criticizing the Twombly decision by concluding thatmajor procedural changes should not be accomplished through judicial opinions andobserving that Justices rarely have before them the empirical data necessary to evaluate new

procedural innovations).43. SeeAnthony Martinez, Case Note, Plausibility Among the Circuits: An Empirical Survey of

Bell Atlantic Corp. v. Twombly, 61 ARK.L.REV. 763, 76971 (2009) (noting that courts remainuncertain about the federal pleading standard after Twombly).

44. Ashcroft v. Iqbal, 129 S. Ct. 1937, 194243 (2009).

45. Id. at 1943.


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constitutional violations.46 Accordingly, a Bivens action nearly alwaysincludes a statutory or constitutional claim as well.47 Iqbal, for example,claimed that the defendants violated his First and Fifth Amendment rights,as well as the principles enunciated in Bivens, the Alien Tort Claims Act, theReligious Freedom Restoration Act, a civil-rights conspiracy statute, and theFederal Tort Claims Act.48 However, in order for Iqbals Bivens claim to

survive a motion to dismiss, the complaint needed to give rise to a plausibleinference that Iqbals arrest and imprisonment were fueled by thedefendantgovernment officials purposeful and unconstitutionaldiscrimination.49

Iqbal sued dozens of government officials.50 Two of these officials, U.S.Attorney General John Ashcroft and FBI Director Robert Mueller, claimedthat they were immune from liability and filed a 12(b)(6) motion to dismissfor failure to state a claim.51 The district court denied the motion, butAshcroft and Muellers interlocutory appeals reached the Supreme Court.52The Supreme Court held that Iqbals complaint against Ashcroft andMueller failed to meet the federal pleading standard because his claim did

not provide sufficient facts to raise a plausible inference that Ashcroft andMueller purposefully violated Iqbals rights.53The Court began its analysis of Iqbals complaint by identifying which

statements were no more than conclusions and noting that legalconclusions do not receive the presumption of truth that factual statementsreceive.54 This allowed the Court to focus on two statements from thehundreds of statements in the pleading: first, that the [FBI], under thedirection of Defendant MUELLER, arrested and detained thousands of ArabMuslim men . . . as part of its investigation of the events of September 11;and, second, that [t]he policy of holding post-September-11th detainees inhighly restrictive conditions of confinement until they were cleared by the

46. See generally42 U.S.C. 1983 (2006) (balancing qualified-immunity principles with theright to recover damages from federal officials); Bivens v. Six Unknown Named Agents of Fed.Bureau of Narcotics, 403 U.S. 388 (1971) (allowing a personal cause of action for damagesagainst federal officials); BLACKS LAW DICTIONARY 191 (9th ed. 2009) (defining a Bivensaction by analogy to a claim under 42 U.S.C. 1983).

47. Iqbal, 129 S. Ct. at 1948 (The factors necessary to establish a Bivensviolation will varywith the constitutional provision at issue.).

48. First Amended Complaint & Jury Demand 3, Elmaghraby v. Ashcroft, 2005 WL2375202 (E.D.N.Y. Sept. 27, 2005) (No. 04 CV 01809 JG SMG), 2004 WL 3756442[hereinafter Iqbal Complaint].

49. Iqbal, 129 S. Ct. at 1952; accord id. at 1948 (Where the claim is invidiousdiscrimination in contravention of the First and Fifth Amendments, our decisions make clear

that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.).50. Id. at 1943.

51. Id. at 1944; id. at 1960 (Souter, J., dissenting).

52. Id. at 1942, 1944 (majority opinion).

53. Id. at 194243, 1952.

54. Id. at 195051.


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FBI was approved by Defendants ASHCROFT and MUELLER in discussionsin the weeks after September 11, 2001.55

Next, the Court examined the factual statements to see if they passedthe plausibility standard that the Court established in Twombly.56 Neitherclaim passed.57 The Court held that the factual statements in the complaintdid not raise a plausible inference that the defendants acted purposefully.58

The Iqbal Court did not necessarily intend to raise the pleadingstandard developed in Twombly.59 Instead, the Court assured litigants thatTwomblywas not a fluke.60Iqbalconfronted some of the major theories thatscholars, attorneys, and judges had developed to reconcile what theyperceived as Twomblys inconsistencies with the Federal Rules. For instance,the Court held that the Twomblystandard applies to all federal claims, notjust antitrust cases.61 It also confirmed that this standard does not apply toonly cases that might involve significant discovery costs.62 In short, Iqbalenshrined Twomblys plausibility standard.

Advocates have not been quietly submissive to the new pleadingstandard.63 Immediately after the Courts decision became public, Iqbal

55. Id. at 1960 (Souter, J., dissenting) (alterations in original) (quoting Iqbal Complaint,supra note 48, 47, 69) (internal quotation marks omitted); see id. at 195152 (majorityopinion) (rejecting other sections of the complaint as conclusory).

56. Id. at 1951.

57. Id. at 1952.

58. Id.

59. SeeSullivan, supranote 10, at 60 (positing that the Court in Twomblyand Iqbalclaimednot to, but did, raise the pleading standard). But see Hatamyar, supra note 10, at 575(characterizing Iqbalas Twombly on [s]teroids).

60. See Iqbal, 129 S. Ct. at 1953 ([Rule 8] governs the pleading standard in all civilactions and proceedings in the United States district courts. (quoting F ED.R.CIV.P. 1)).

61. Id. (Though Twomblydetermined the sufficiency of a complaint sounding in antitrust,the decision was based on our interpretation and application of Rule 8.). For an example of ascholar who had suggested Twombly might be unremarkable because it applied to onlyantitrust litigation, see Scott Dodson, Essay, Pleading Standards After Bell Atlantic Corp. v.Twombly, 93 VA. L. REV. IN BRIEF 135, 137 (2007), http://www.virginialawreview.org/inbrief/2007/07/09/dodson.pdf. See generallySullivan, supranote 10, at 1720 (discussing pre-Twomblyantitrust litigation).

62. Iqbal, 129 S. Ct. at 1953 ([T]he question presented by a motion to dismiss acomplaint for insufficient pleadings does not turn on the controls placed upon the discoveryprocess.); Goode-Trufant, supranote 27,at 37, 56. See generallySullivan, supranote 10, at 6165 (summarizing and criticizing Twomblys effect on discovery costs).

63. See, e.g., Andre Sophia Blumstein, Twombly Gets Iqbal-ed: An Update on the NewFederaland Tennessee?Pleading Standard, TENN.B.J.,July 2009, at 23, 2324; Hatamyar, supranote 10, at 555 (IfTwomblycaused a shock, Iqbalstruck a blow.); Tony Mauro, Groups Unite To

Keep Cases on Docket, NATL L.J., Sept. 21, 2009, at 1; Mark Herrmann, James M. Beck & StephenB. Burbank, Debate, Plausible Denial: Should Congress OverruleTwomblyandIqbal?, 158 U.PA.L.REV. PENNUMBRA 141, 15153 (2009), http://www.pennumbra.com/debates/pdfs/PlausibleDenial.pdf (arguing that congressional intervention would prudently inhibit courts fromoverzealously applying Iqbal based on naive reasons, like rumors about discovery costs andfrivolous lawsuits); Debra Cassens Weiss, As Judges Cite Iqbal To Toss Pleadings, Lawyers Plot


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galvanized the critics of Twomblyand created new opposition from people who had believed thatTwomblys standard was not universal.64 The Iqbaldecision will likely cause just as much discussion as Twombly.65

As a practical result ofIqbals fortification ofTwombly, more defendantswill file 12(b)(6) motions, more judges will grant 12(b)(6) motions, moreparties will drop or lose their causes of action, and fewer litigants will have

their day in court.66

However, as the next Subpart explains, some partiesmight look to Rule 15 for a safety net.

B. RECENTDEVELOPMENTS INRULE15

Rule 15 allows a party to amend a pleadingeven a pleading that isvulnerable to a 12(b)(6) dismissal for failure to meet the federal pleadingstandard. In other words, Rule 15 provides a second chance at success forclaims that a court might otherwise reject after Iqbal. A party can amendeither as a matter of course, or with permission from the opposition or leaveof the court.67

1. Amending as a Matter of Course

Amending as a matter of course, sometimes referred to as amending asa matter of right, means that a party has a right to amend its pleadingwithout permission from the court or other party. Amending as a matter ofcourse allows a party to fix oversights without needing to take up the courts

Reform, A.B.A.J.,Sept. 21, 2009, http://www.abajournal.com/news/article/little-noticed_9-11_ruling_cited_1500_times_spurring_move_to_undo_the_damag/. Senator Arlen Specter, forexample, introduced a bill that would force courts to return to the Rule 8 standard that Conleyestablished. SeeDavid Ingram, Bill Would Revive Pleading Standard, NATL L.J., July 27, 2009, at12.

64. See, e.g., Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on toUnconstitutional Shores, 88 NEB.L.REV. 261, 263, 27475 (2009); Adam Liptak, Case About 9/11Could Lead to a Broad Shift on Civil Lawsuits, N.Y.TIMES, July 21, 2009, at A10. But seeEditorial,Abuse and Accountability: The Supreme Court Turns Back a Detainees Lawsuit Against Top Justice

Department Officials, WASH. POST, May 19, 2009, at A18 (applauding the Iqbal decision as aprudent protection of immunity for government officials); Neal R. Stoll & Shepard Goldfein,

Defense for Twombly: Plausibility Standard Was Never More Plausible, N.Y.L.J.,Aug. 18, 2009, at1,2 (Critics ofTwomblyand Iqbalargue that these cases go against the liberal pleading standardof the Federal Rules because they allow for a complaint to be dismissed on the merits beforeplaintiffs have the chance to develop facts obtained through discovery.).

65. Steven P. Garmisa, U.S. Supreme Court Calls for Fact-Pleading in Rights Case, CHI.DAILYL.BULL., July 7, 2009, at 1; Mauro, supra note 63 (With remarkable speed and success, Iqbalmotions to dismiss because of insufficient pleadings have become commonplace in federalcourts, already producing more than 1,500 district court and 100 appellate court decisions

according to a Westlaw search. Many more are pending.).66. Hatamyar, supra note 10, at 556, 624; Motzenbecker, supra note 37, at 11; see

Clermont & Yeazell, supra note 11, at 84849 (affirming findings that 12(b)(6) dismissalsincreased after Twomblyand explaining the shortcomings of empirical studies that have foundotherwise).

67. FED.R.CIV.P. 15.


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time.68 For example, a party who files a complaint on Monday but finds newevidence on Tuesday can submit an amended complaint on Wednesday.

The Judicial Conference recently modified when and how parties canexercise this right.69 As of December 1, 2009, Rule 15(a)(1) limits the timeto amend as a matter of course to twenty-one days, depending on thesituation:

(1) Amending as a Matter of Course. A party may amend its pleadingonce as a matter of course within:

(A) 21 days after serving it, or(B) if the pleading is one to which a responsive pleading isrequired, 21 days after service of a responsive pleading or 21days after service of a motion under Rule 12(b), (e), or (f),whichever is earlier.70

However, the amendments do not change the general spirit of therule.71 Instead, the Conferences changes to Rule 15(a) modify a partysability to amend as a matter of course in two subtle ways.72 First, theamendments extend the time, from twenty to twenty-one days, in which aparty can amend a pleading as a matter of course after an opposing partysubmits a motion to dismiss.73 Second, a responsive pleading no longerautomatically prevents a party from amending.74

Before the changes, a partys ability to amend as a matter of coursedepended on how, if at all, the opposing party reacted to the partys initialcomplaint. For instance, a motion to dismiss for failure to state a claim would not terminate a partys right to amend as a matter of course.75 By

68. JACKH.FRIEDENTHAL,MARYKAYKANE &ARTHURR.MILLER,CIVIL PROCEDURE 310 (3ded. 1999).

69. Technically, the amendment process involves more than the input and effort of theJudicial Conference. See generally28 U.S.C. 2072(a) (2006) (giving the Supreme Court powerto prescribe the Federal Rules of Civil Procedure); Bone, supranote 30, at 877 n.9 (providing aconcise account of the legislative process for amending the Rules).

70. FED.R.CIV.P. 15(a)(1). By comparison, the previous version of Rule 15 stated:

(1) Amending as a Matter of Course.A party may amend its pleading once as a matterof course:

(A) before being served with a responsive pleading; or(B) within 20 days after serving the pleading if a responsive pleading is notallowed and the action is not yet on the trial calendar.

FED.R.CIV.P. 15(a)(1) (2008) (amended 2009).

71. FED.R.CIV.P. 15 advisory committees note to 2009 amendment.

72. Id.

73. Id.74. Id.

75. FED. R. CIV. P. 15(a)(1)(A) (2008) (amended 2009); Doe v. United States, 58 F.3d494, 497 (9th Cir. 1995) (Neither the filing nor granting of . . . a motion [to dismiss] beforeanswer terminates the right to amend; an order of dismissal denying leave to amend at thatstage is improper. (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,


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2011] RULE 15 1415

contrast, a responsive pleadingsuch as an answerfrom the other partywould preclude amendment because the old Rule 15 prevented amendmentafter the opposing party served a responsive pleading.76 Thus, under the oldRule 15, a defendant could file a 12(b)(6) motion along with a responseand thereby strip the plaintiff of a right to amend as a matter of course. Thechanges to Rule 15(a)(1) simplify the right to amend by focusing on the

timing, rather than the type, of filings.77

2. Amending with Leave of the Court

A party can also amend with leave of the court. After the expiration ofRule 15(a)(1)s twenty-one-day limitation period, a party may amend itspleading only with the opposing partys written consent or the courtsleave.78 The rule instructs that a court should freely give leave when justiceso requires.79 With this leeway, courts grant leave even, for example, afterthe response period described in Rule 15(a)(1) ends or when the evidencethat emerges during the trial does not coincide with the pleading.80

While amending as a matter of course appears to be a bright-line rule,81

amending with leave of the court involves a less predictable standard.82

The

1401 (9th Cir. 1986)) (internal quotation marks omitted)). This nuance results from the basicunderstanding that a responsive pleading is different from a responsive motion. SeeFED.R.CIV.P. 7 (distinguishing pleadings from motions); Shaver v. Operating Engrs Local 428 PensionTrust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); McLellan v. Miss. Power & Light Co., 526F.2d 870, 872 n.2 (5th Cir. 1976) (A motion to dismiss is not a responsive pleading forpurposes of Rule 15(a).), vacated in part en banc, 545 F.2d 919 (5th Cir. 1977).

76. SeeFED.R.CIV.P. 15(a)(1) (2008) (amended 2009).

77. FED. R. CIV. P. 15 advisory committees note to 2009 amendment ([T]he right toamend once as a matter of course is no longer terminated by service of a responsive pleading.).See generallyTime Changes Coming to Federal Rules, THIRD BRANCH NEWSL. (Admin. Office of the

U.S. Courts, Washington, D.C.), June 2009, at 1, available at http://www.uscourts.gov/News/TheThirdBranch/TTBViewer.aspx?doc=/uscourts/news/ttb/archive/2009-06%20jun.pdf(summarizing changes to the Federal Rules regarding deadline calculations).

78. FED.R.CIV.P. 15(a)(2) (In all other cases, a party may amend its pleading only withthe opposing partys written consent or the courts leave. The court should freely give leave

when justice so requires.).

79. Id.; see alsoFoman v. Davis, 371 U.S. 178, 182 (1962) (instructing courts on how toexercise discretion and stating that outright refusal to grant the leave without any justifyingreason appearing for the denial is not an exercise of discretion; it is merely abuse of thatdiscretion and inconsistent with the spirit of the Federal Rules).

80. FED. R. CIV. P. 15(b) (explaining that a party can amend during trial so that thepleading conforms to the proof presented at trial). Like Rule 15(a), 15(b) gives greatdiscretion to the court: The court should freely permit an amendment [during trial] whendoing so will aid in presenting the [actions] merits . . . . Id. 15(b)(1).

81. That is, the ability to amend depends on a particular number of days. See supraPartII.B.1.

82. 6 CHARLESALANWRIGHT,ARTHURR. MILLER & MARY KAY KANE, FEDERAL PRACTICEAND PROCEDURE 1484, at 67679 (3d ed. 2010) (Precise delineation of when an amendmentwill be allowed is impossible because . . . leave to amend is a matter that is within the discretionof the trial court.).


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rule has two overall mandates that judges must follow: (1) liberally giveleave, and (2) use leave as a tool for justice. Factors that courts use todetermine whether justice requires leave to amend include bad faith,prejudice to the opposing party, the impact on timing in light of therequirement for expeditious trials, and the futility of the amendment.83Beyond these factors, some courts deny amendment because they find that

amendment diminishes the sanctity of other rules, especially rules regardingfinal judgments.84

Courts examine these factors in light of all of the circumstances. Forexample, a plaintiff who does not promptly amend a complaint as a matterof course will likely still be able to amend with leave of the court, eventhough this might delay trial.85 That same plaintiff, however, might not beable to amend if such a delay prevents the defendant from fully preparingfor trial.86

On a practical level, another factor a court might use to determinewhether amendment is a tool for justice is whether the party would have aright to appeal the judges decision. If the district court denies a partys

rights under Rule 15, then the appellate courts standard of review variesdepending on the lower courts reason for not granting leave to amend. Forexample, if the district court denies leave to amend on the grounds offutility, then the standard of review in most jurisdictions is de novo.87 Bycontrast, if the district court denies leave to amend because of the otherfactors mentioned abovesuch as bad faith or prejudicethen abuse ofdiscretion is the standard of review.88 Moreover, if a district court denies

83. Foman, 371 U.S. at 182 (identifying undue delay, bad faith or dilatory motive on thepart of the movant, repeated failure to cure deficiencies by amendments previously allowed,undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility

of amendment as reasons to deny leave to amend).84. See,e.g., FED.R.CIV.P. 59(e) (describing the amount of time in which a party must filea motion to alter or amend a judgment); id. 60(b) (allowing a party to file a motion for relieffrom a final judgment or order); Clardy v. Duke Univ., 299 F.2d 368, 36970 (4th Cir. 1962)(If it should be held that plaintiff could amend without leave after . . . the granting of summary

judgment against him, the effect would be to clothe a litigant with the power . . . to reopen acase and . . . set aside a judgment . . . .).

85. Cf. Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004) (holdingthat delay in itself is not reason enough to deny leave to amend).

86. SeeKrumme v. WestPoint Stevens Inc., 143 F.3d 71, 8788 (2d Cir. 1998) (denyingleave to amend because the amendment would force the opposing party to find new evidenceand witnesses during the trial).

87. See, e.g., Miller v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10thCir. 2009); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 755 (8th Cir. 2006).

88. See, e.g., Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010) (We . . . review thedenial of leave to amend a complaint for abuse of discretion. (citation omitted)); Wilson v.BruksKlockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010). But seeJohnson v. Buckley, 356 F.3d1067, 1077 (9th Cir. 2004) (stating that [t]he denial of a motion to amend a complaint isreviewed for abuse of discretion after commenting that the district court denied amendmenton grounds of futility).


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2011] RULE 15 1417

leave to amend because the court grants a 12(b)(6) motion to dismiss, thenthe appellate court applies the standard of review appropriate for a12(b)(6) dismissal: de novo.89

C. CIRCUITCOURTSDISAGREEABOUTAMENDINGACOMPLAINTAFTER12(B)(6)DISMISSAL

As this Subpart demonstrates, circuit courts disagree about whether aplaintiff can amend a complaint using Rule 15 after a court grants a12(b)(6) motion to dismiss for failure to state a claim. Some circuits allow aplaintiff to amend as a matter of course, even after a court grants a 12(b)(6)motion.90 Other circuits bar any type of amendment after 12(b)(6)dismissal.91 In between these two extremes is a moderate approach that barsamendment as a matter of course but allows amendment by leave of thecourt. The recent amendments to Rule 15 do not change the effect of thissplit, although the twenty-one-day limit will likely change the terminology ofthe split.92

1. Amending After the Rule 15 Revisions

Prior to the revisions to Rule 15 in December 2009, some circuit courtshad held that a plaintiff could amend a complaint after the district courtdismisses the pleading.93 As discussed above, the older language of Rule 15

89. See, e.g., Wilson, 602 F.3d at 368 (When the district courts sole reason for denyingsuch an amendment is futility, . . . we must scrutinize that decision somewhat more closely,applying a de novo standard of review similar to that under which we review a dismissal underRule 12(b)(6). (emphasis omitted)); Rogers v. White Metal Rolling & Stamping Corp., 249F.2d 262 (2d Cir. 1957).

90. See, e.g., RickMik Enters. Inc. v. Equilon Enters., LLC, 532 F.3d 963, 977 (9th Cir.2008) (noting that the plaintiff could have amended its complaint as a matter of right even

after the lower court had dismissed its entire pleading); see also infra notes 9396 andaccompanying text (discussing these circuits rationale for allowing leave to amend as a matterof course after dismissal).

91. These jurisdictions typically consider a dismissal under 12(b)(6) to constitute a final judgment. Thus, a party must move to alter or amend a judgment rather than to amend apleading. See, e.g., Ahmed v. Dragovich, 297 F.3d 201, 207208 (3d Cir. 2002) (finding that12(b)(6) dismissal constitutes a final judgment and that the liberality of [Rule 15] is no longerapplicable once judgment has been entered); Natl Petrochemical Co. of Iran v. M/T StoltSheaf, 930 F.2d 240, 24445 (2d Cir. 1991) (finding that a court cannot grant amendmentunder Rule 15 unless it can first vacate the judgment under Rule 60).

92. In other words, the outcome and disposition of cases before the different courts willlikely remain the same except for a change in terminology: Amendment as a matter of course

would change to amendment with leave of the court. See generally15A CHARLESALANWRIGHT,ARTHURR.MILLER&EDWARD H.COOPER,FEDERAL PRACTICE AND PROCEDURE 3914.1, at 494

96 (2d ed. 1992 & Supp. 2008) (suggesting that a universal rule about amendment after12(b)(6) dismissal could resolve this circuit split).

93. E.g., Chemtech Intl, Inc. v. Chem. Injection Techs., Inc., 170 F. Appx 805, 81011(3d Cir. 2006) (allowing amendment as a matter of right even after the court granted a12(b)(6) motion); Brever v. Rockwell Intl Corp., 40 F.3d 1119, 1131 (10th Cir. 1994)(holding that the right to amend as a matter of course still exists after a court grants a 12(b)(6)


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defined amendment as a matter of course in relationship to the type ofpleadings and orders that the pleading faced.94 This group of circuitdecisions preserved a partys right to amend without leave of court byreasoning that 12(b)(6) motions were not responsive pleadings.95Furthermore, they held that a courts dismissal operates as a dismissal of theclaim but not as a final judgment on the complaint.96

Other circuits held that a district courts dismissal prevents amendmentas a matter of course.97 However, these courts generally provided anopportunity to amend with leave of the court.98 In fact, some circuits

motion). The exception to this rule occurs when a court explicitly denies an amendmentbecause, for example, the complaint could not meet a pleading standard. Kirsch v. Barnes, 157F. Supp. 671, 672 (N.D. Cal. 1957) ([T]he Court is given a large measure of discretion undersuch circumstances, and leave to file an amended complaint should not properly be grantedunless new facts are made to appear which would remedy the defects contained in the previouscomplaint.), affd, 263 F.2d 692 (9th Cir. 1959).

94. See supraPart II.B.1. The Advisory Committee note to the 2009 revisions of Rule 15explain that one reason for the changes is to orient the right in terms of time rather than type

of motion or order. FED

. R. CIV

. P. 15 advisory committees note to 2009 amendment. Thisstrategy is only as effective as the time limit is short. That is, the circuits that allow amendmentwithout leave after 12(b)(6) dismissal can still do so as long as the pleading, motion, and orderhappen within the twenty-one-day period. Courts and parties are rarely so efficient.Consequently, the amendments to Rule 15 reduce the likelihood that a court will face thecircumstances that this group of circuit courts depended upon to hold that amendment as amatter of right is permissible.

95. See, e.g., RickMik Enters., Inc., 532 F.3d at 977 (A motion to dismiss is not a responsivepleading within the meaning of Rule 15(a). . . . [The nonmoving party] could have filed anamended complaint even afterthe district court granted the motion. (citations omitted)); Doe

v. United States, 58 F.3d 494, 49697 (9th Cir. 1995) (allowing a party to amend as a matter ofright because an order granting dismissal is not a responsive motion).

96. The Ninth Circuit pioneered this 12(b)(6) distinction between dismissals and finaldismissals that are appealable. SeeDisabled Rights Action Comm. v. Las Vegas Events, Inc., 375

F.3d 861, 870 (9th Cir. 2004); WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir.1997) (en banc); Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987). Seegenerally15A WRIGHT,MILLER&COOPER,supranote92, 3914.1, at 498501 (describing andthen criticizing the Ninth Circuits approach).

97. E.g., Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016, 1031(9th Cir. 2009) (Unless it is clear that the complaint could not be saved by amendment,dismissal with prejudice and without leave to amend is not appropriate.), amended by592 F.3d954 (9th Cir.), petition for cert. filed, 78 U.S.L.W. 3629 (U.S. Apr. 14, 2010) (No. 09-1254);Ballou v. Gen. Elec. Co., 393 F.2d 398, 400 (1st Cir. 1968) (holding that leave to amend shouldaccompany a 12(b)(6) dismissal and that the court must inform the losing party about thereasons for dismissal).

98. These courts maintain the effect of a liberal amendment policy by finding that therequest for the courts leave can be informal or even implied. See, e.g., Oliver Sch., Inc. v. Foley,930 F.2d 248, 253 (2d Cir. 1991) (finding, in the absence of any explicit or formal request for

amendment, that the attorneys comments and actions inferred a desire to amend). Formalrequests, however, provide the court with a clearer impression of whether the amendedpleading will survive a 12(b)(6) motion. SeePorat v. Lincoln Towers Cmty. Assn, 464 F.3d 274,27576 (2d Cir. 2006) (finding that the party implied its desire to amend but that this informalprocess of requesting leave did not provide the court with a sufficient showing that theamended pleading would survive dismissal).


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2011] RULE 15 1419

required that leave to amend accompany every 12(b)(6) dismissal.99 Thisapproach extinguished amendment as a matter of course but preserved thesubstance of that right by immediately giving the party the courts leave toamend.100 Following this approach maintains Rule 15s liberal mandate togive leave freely and ensures that the other party has notice of possiblefurther action.101

Other circuit courts sought a middle ground between those circuits thatalways allowed amendment as a matter of course after 12(b)(6) dismissaland circuits that rarely or never allowed it. This majority approach permitteda party to amend as a matter of course but not as a matter of right after12(b)(6) dismissal.102 However, courts in some of these jurisdictions onlygive leave to amend after dismissal if the court intended to dismiss thecomplaint and did not intend to enter final judgment on the claim.103

2. Rule 15s Recent Changes Do Not Resolve the Circuit Split

The 2009 amendments to Rule 15 modified amending as a matter ofcourse under Rule 15(a)(1) but did not modify the provisions governing

when a court should give leave to amend under Rule 15(a)(2).104

Notably,

99. In other words, judges in some circuits must, absent extraordinary circumstances,grant leave to amend before a 12(b)(6) dismissal even if the nonmoving party does not requestthe courts leave. For examples of Third Circuit decisions that discuss this requirement, seeAlston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004), andDistrict Council 47, American Federation ofState, County and Municipal Employees v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986). For a NinthCircuit example, seeDoe, 58 F.3d at 497. Other circuits, however, are not so willing to burdenthe judge with such a task. SeeTucker v. MiddleburgLegacy Place, LLC, 539 F.3d 545, 55152(6th Cir. 2008) (noting that the district court was not supposed to play a guessing game about

whether the losing party wanted to amend (quoting Meehan v. United Consumers ClubFranchising Corp., 312 F.3d 909, 914 (8th Cir. 2002) (internal quotation marks omitted)); In

reAm. Express Co. Sholder Litig., 39 F.3d 395, 402 (2d Cir. 1994) (The district court surelydid not abuse its discretion in not sua spontegranting leave to replead.); Bank of Waunakee v.Rochester Cheese Sales, Inc., 906 F.2d 1185, 1192 (7th Cir. 1990) (noting that a party whodoes next to nothing in seeking an amendment cannot successfully argue that the courtshould have given the party leave to amend).

100. Some critics condemned the practice because it gave the pleader two bites at theapple. If a judge says that the pleading does not meet the pleading standard, then the partycan first appeal the judges decisionthe first bite. If the appeal fails, then the party can ask the

judge for leave to amendthe second bite. SeeWagner v. Daewoo Heavy Indus. Am. Corp., 314F.3d 541, 54345 (11th Cir. 2002) (reversing a lower courts decision that gave a party twobites at the apple (internal quotation marks omitted)).

101. 15A WRIGHT, MILLER & COOPER, supra note 92, 3914.1, at 496, 503; 6 WRIGHT,MILLER&KANE,supranote82, 1483, at 66574.

102. 3 JAMESWM.MOORE ET AL., MOORES FEDERAL PRACTICE 15.13[1] n.5, at 1518 (3d

ed. 2010) (describing this as the majority approach); see, e.g., Bausch v. Stryker Corp., No. 09-3434, 2010 WL 5186062, at *14 (7th Cir. Dec. 23, 2010) (exemplifying this approach).

103. Cf. 6 WRIGHT, MILLER & KANE, supra note 82, 1483, at 66566 (Prior to itsamendment in 2009, Rule 15(a) specifically limited a partys ability to amend without leave ofcourt to the time before beging served with a responsive pleading.).

104. CompareFED.R.CIV.P. 15(a),withFED.R.CIV.P. 15(a) (2008) (amended 2009).


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the Committee notes comment on only one approach to the right to amendafter 12(b)(6) dismissal: [Under former Rule 15(a),] [t]he right to amendsurvived beyond decision of [a 12(b)(6)] motion unless the decisionexpressly cut off the right to amend.105 In other words, the notes describeone of the more liberal approaches to amend.106 Moreover, this approachsuggests that if an order grants a motion to dismiss but does not explicitly

grant or deny leave to amend, then the party still has the option to amend asa matter of right. However, as explained above, appellate precedentindicates otherwise.107

While it is unlikely that the Committee underestimated ormisunderstood the circuit split, the text of the rule does not technicallybridge the circuit split. All approaches to amendment as a matter of coursecan continue under the rules new language, albeit with some limitation.108For example, the approach that allows for amendments as a matter of courseeven after dismissal will rarely occur. After all, few courts and litigants are soefficient as to file all the necessary motions, responses, and orders within thetwenty-one-day limit that the revised Rule 15(a)(1) imposes.

Nevertheless, the changes to Rule 15 do remedy some of the circuitsplits problems. For example, a plaintiff whose claim is dismissed underRule 12(b)(6) can no longer lie dormant on his or her amendment rightand later stun the winning party by not promptly exercising a right to amendas a matter of coursethat right does not exist after twenty-one days. 109 Also, the rules new emphasis on time limitations, rather than on type ofmotion, prevents parties from buying more time through the amendmentprocess.110 These revisions change Rule 15s impact on litigation, but they

105. FED.R.CIV.P. 15 advisory committees note to 2009 amendment.

106. A party could argue that the Committees language endorses only one view. This view

would be somewhere between the most liberal viewin which parties can always amend afterdismissaland the moderate view that prevents dismissal only when the order explicitly says so.

107. See supra Part II.C.1 (tracing the circuit split regarding how and when a party canamend a complaint after a judge grants a 12(b)(6) motion).

108. See supranote 92 (commenting on the new languages effect).

109. This is a small improvement, however, given that a party can ask the court to continuethe litigation under Rule 59(e) (motion to alter or amend a judgment), Rule 60 (relief from a

judgment or order), or Rule 73(c) (magistrate appeals).

110. The Department of Justice explained and supported Rule 15s new time-basedapproach:

The Committee seeks to address what it considers to be the anomalous treatmentof a partys right to amend its pleading, one that depends on whether the opposingparty has served a response (such as an answer) or has moved to dismiss. In doing

so, the Committee achieves some measure of certainty, by giving the party a 21-daywindow within which to make its amendment.

Letter from Jeffrey S. Bucholtz, Acting Assistant Atty Gen., U.S. Dept of Justice, to Peter G.McCabe, Secy of the Comm. on Rules of Practice & Procedure 10 (Feb. 15, 2008), available athttp://www.uscourts.gov/uscourts/RulesAndPolicies/rules/CV%20Comments%202007/07-CV-015.pdf.


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2011] RULE 15 1421

do not change Rule 15s liberal mandate to permit a party to amend apleading.

3. The Most Restrictive Mandate to Courts: Give Leaveor Give a Good Reason for Denying Leave

Regardless of the reasons for giving leave, an appellate court will reverse

the district courts denial if the rationale for denial is unclear.111 In one ofthe few discussions of Rule 15(a) by the Supreme Court, the Foman v. Davisdecision endorsed a liberal approach to amendments by emphasizing that acourts reasons for denying leave must be clear.112 The Court stated thatoutright refusal to grant the leave without any justifying reason appearingfor the denial is not an exercise of discretion and called such refusal anabuse of discretion inconsistent with the spirit of the Federal Rules.113Some courts interpret this statement to mean that the district court is notthe only court that can come up with the justification for denialthat is, when the trial court does not give good reasons, the reviewing court cansearch the record on its own for good reasons to deny amendment. 114 Even

with this restrictive interpretation, the Supreme Courts message is clear:Give leave to amend or give a good reason not to.Although the disagreement between the circuits regarding amendments

of pleadings might seem negligible, it is actually stunning evidence of howliberal a liberal standard can be. The side of the circuit split that is the leastamenable to giving leave holds that the judge who does not give leave musthave a solid reason for doing so. On the other extreme of the split, allowinga party to amend, even after dismissal, is nearly a requirement.

Equipped with the approaches to Rule 15 amendments in general, thisNote now examines how circuit courts respond to Rule 12(b)(6) dismissalsin particular.

111. Foman v. Davis, 371 U.S. 178, 182 (1962) (prohibiting arbitrary denial); Figgie Intl,Inc. v. Miller, 966 F.2d 1178, 1181 (7th Cir. 1992) (noting that the lower courts failure toexplain denial reasons is an act that strays from Rule 15 and requires reversal).

112. 371 U.S. at 182.

113. Id.

114. See Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 347 (6th Cir.2007) ([W]hen a district court fails to articulate the basis for denying a motion to amend, theerror may be harmless if the proposed amendment would be futile.); Jet, Inc. v. Sewage

Aeration Sys., 165 F.3d 419, 425 (6th Cir. 1999) (concluding that although it was an abuse of

discretion for the magistrate judge to fai[l] to state the basis for [his] denial of leave toamend, this error was harmless because the courts review uncovered sufficient reasons for thedenial (alteration in original) (citation omitted) (quoting Moore v. City of Peducah, 790 F.2d557, 559 (6th Cir. 1986))); Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 691 (9th Cir.1993) (reversing the district courts unexplained denial of leave to amend after the reviewingcourts search for an adequate reason to deny was unfruitful).


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III. AMENDING APLEADINGAFTER12(B)(6)DISMISSAL

The standard of review for a denial of leave to amend gives deference tothe district-court judges legal decision.115 However, a judge abuses his orher discretion if the denial does not explain the reasons for barringamendment.116 With this in mind, this Part analyzes the most commonreasons that judges give for denying leave to amend, focusing on the

explanations that implicate Rule 12(b)(6) and Iqbals pleading standard.

A. COURTSLIBERALLYGRANTLEAVETOAMENDWHEN12(B)(6)MOTIONSAREINVOLVED

Courts liberally grant leave to amend pleadings in general and when a12(b)(6) dismissal is at stake.117 This liberal standard spans across all typesof actions. In a securities action, for example, the Second Circuit vacated thedistrict courts dismissal, stating: When a motion to dismiss is granted, theusual practice is to grant leave to amend the complaint. Although thedecision whether to grant leave to amend is within the discretion of thedistrict court, refusal to grant leave must be based on a valid ground.118 In a

tort claim against the federal government, the Ninth Circuit remanded thecase when the district court abused its discretion by barring amendment.119The court remanded the case because the district-court judge was uncertainabout the partys ability to fix the pleading.120 In a case dealing with theEmployee Retirement Income Security Act, the Eleventh Circuit reversedthe district courts decision to deny a party leave to amend a complaint. 121The reviewing court found that the denial was an abuse of discretionbecause there was at least some possibility the losing party could meet the12(b)(6) standard.122

Notably, this liberal standard is an interpretation of Rule 15. It is not aliberal interpretation of Rule 8 filtered through the language of Rule 15 but

115. See supranotes 8789 and accompanying text (discussing the standard of review).

116. See supraPart II.C.3 (describing cases where courts found abuse of discretion); supranotes 8389 and accompanying text.

117. SeeFoman, 371 U.S. at 182; Oliver Sch., Inc. v. Foley, 930 F.2d 248, 253 (2d Cir.1991); 3 MOORE ET AL., supranote 102, 15.14[1], at 15-25 (The policy in favor of allowingamendments is extremely liberal.); 6 WRIGHT,MILLER&KANE, supranote82, 1484, at 687(noting that Rule 15(a) sets forth an overall liberal amendment policy); supra Part II.C.3(concluding that leave to amend is a liberal standard). The principal drafter of the FederalRules also intended a liberal standard and applied a liberal standard when he later became a

judge. Smith, supranote 4, at 918.

118. Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990) (citations omitted) (quoting

2AJAMESWM.MOORE &JO DESHALUCAS,MOORES FEDERAL PRACTICE 12.4, at 1299 (2d ed.1989)).

119. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).

120. Id.

121. Rosen v. TRW, Inc., 979 F.2d 191, 19495 (11th Cir. 1992).

122. Id.


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a separate analysis of both rules. Accordingly, even when a partys ability toplead successfully no longer involves a liberal interpretation of Rule 8, thepartys ability to amend must still involve a liberal interpretation of Rule 15.

How liberal is this standard? The next Subpart explains when and whyappellate courts condone dismissing a pleading without leave to amend.

B. REASONSTODENYLEAVE

A party facing 12(b)(6) dismissal is in a difficult position. If a judgegives leave to amend after explaining the basis for a 12(b)(6) dismissal, theamending party must comply with the explanation.123 If the amending partychooses not to follow the judges suggestions, this can support the reviewingcourts decision to affirm the lower courts denial.124 In Friedlander v. Nims,for example, a district-court judge threatened attorney sanctions under Rule11 if the amending party did not sufficiently amend its claim of securitiesfraud.125 On appeal, the Eleventh Circuit commented that when a judgegives specific instructions or advice about how to amend a pleading, a partythat does not follow that advice can lose its chance to amend.126 The court

observed: A district court may dismiss a case for failure to comply with thepleading rules. Although this is a severe sanction, its imposition is justifiedwhen a party chooses to disregard the sound and proper directions of thedistrict court.127 Essentially, the judges advice influences the content of theamended pleading. This influence seems suspect given that the adjudicator,rather than the advocate, might determine the theory of the case.128

On most occasions, a judges reasons for denying leave to amend do notinclude Rule 11 threats. Instead, a judge simply finds that amending is futile.Examples of futile amendments include a complaint that adds parties that

123. Amending under these circumstances might hinder a partys trial strategy by forcingthe party to divulge strategic decisions about evidence.

124. See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 66668(7th Cir. 2007) (holding that the district court did not abuse its discretion by dismissing apleading when the amending party did not satisfactorily take into account the judgessuggestions on how to amend the pleading).

125. 571 F. Supp. 1188, 119495 (N.D. Ga. 1983) (Counsel is cautioned that the strictestcompliance with Rule 11 will be expected if amendment is made. (citation omitted)), affd,755 F.2d 810 (11th Cir. 1985). Rule 11 prohibits frivolous submissions to the court. SeeFED.R.CIV.P. 11(b).

126. Friedlander, 755 F.2d at 81314 (It is difficult to imagine how the district court couldhave been more explicit in expressing its concern over the complaints deficiencies and inrecommending the changes necessary to correct them.); see supra note 123 (discussing trial

strategy).127. Id. at 813.

128. Smith, supra note 4, at 92527; Liptak, supra note 64 (It obviously licenses highlysubjective judgments . . . . This is a blank check for federal judges to get rid of cases theydisfavor. (quoting civil-procedure scholar Stephen B. Burbank on Iqbal) (internal quotationmarks omitted)).


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are beyond the courts jurisdiction or a complaint that states a cause ofaction that breaches the statute of limitations.129

Similar to futility, courts can also deny leave to amend if the complaintis frivolous, meaning no facts could possibly cure the complaints faults.130Given the standard of review, this disposition must not depend on the factsof the case but on questions of law and an application of the Rules instead.

However, this line between fact and law is not always clear.131

The Seventh Circuit illustrated this point when it reviewed a case

involving a group of horticulturalists in Chicago who alleged that the citys weed ordinance was unconstitutional.132 The district court dismissed theclaim because the fact that the plaintiffs neighbors were receiving tickets for violating the ordinance was not enough to show that the citys ordinanceharmed the plaintiffs or that the city had threatened them with sanctions.133 While reviewing whether denial of leave to amend was an abuse ofdiscretion, the Seventh Circuits language suggested a fact-based disposition:[B]ecause the plaintiffs have not alleged sufficient facts to show that theCity has threatened them with prosecution under the current weed

ordinance, we find their claims of genuine fear unrealistic.134

The courtdecided that the facts had no legal merit.135Courts also deny amendment when they predict that the amended

pleading would not, or could not, add facts that meet the pleadingthreshold.136 For example, in Acito v. IMCERA Group, Inc., the Second

129. See Moore v. Indiana, 999 F.2d 1125, 1128, 113031 (7th Cir. 1993); Long v. U.S.Dept of Def., 616 F. Supp. 1280, 1284 (E.D.N.Y. 1985). In Long, when a discharged servicemancontested the status of his discharge and the army managed to dismiss his complaint, the courtfound that [g]ranting leave to amend the original complaint . . . would be futile, because evenif leave to amend the original complaint was granted, plaintiffs claims would still be barred bythe statute of limitations [and laches]. Id.; see alsoMiller v. RykoffSexton, Inc., 845 F.2d 209,214 (9th Cir. 1988) (finding that an amendment to add an affirmative defense to an answerpleading was not futile because it added facts).

130. Cox v. Warden, 911 F.2d 1111, 1114 n.6 (5th Cir. 1990) (denying a party leave toamend his complaint when the proposed amendment involved calculating jail time because nocalculation could fulfill the elements of the cause of action); seeConsumers Petroleum Co. v.Texaco, Inc., 804 F.2d 907, 91314 (6th Cir. 1986) (holding that the denial of leave to amend

was improper when the amendment could have met the pleading standard).

131. Cf. supranotes 5466 and accompanying text (criticizing the IqbalCourts method ofstripping the substance of the plaintiffs complaint on the tenuous distinction between facts andconclusions).

132. Schmidling v. City of Chi., 1 F.3d 494, 495 (7th Cir. 1993).

133. Id. at 500 (We do not find the allegations . . . have demonstrated that the plaintiffs

are in real and immediate danger of sustaining some direct injury . . . .).134. Id. at 499.

135. Id. at 501.

136. This could involve the court positing that it is impossible for the pleader to provideadditional, or more specific, facts. Long v. U.S. Dept of Def., 616 F. Supp. 1280, 1284(E.D.N.Y. 1985) ([P]laintiffs proposed amended complaint merely remedies certain


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Circuit held that the new information that the plaintiff planned to add to afraud complaint failed to show a strong inference of the defendantsfraudulent intent.137 The plaintiff intended to add facts that the defendantcompany delayed material disclosures to investors.138

Even though courts liberally give leave to amend, this Subpart hasdescribed some of the limits to amending. A party that faces 12(b)(6)

dismissal but asks the court for leave to amend could find its case in aprecarious position. As the next Subpart shows, Rule 15 could help.

C. AMOTIONSTRATEGY THATHARNESSESRULE15 ANDIQBAL

The Supreme Courts decision in Iqbalrestricted the pleading standardof Rule 8 from the more liberal Conleystandard.139 Rule 15, however, stillmandates a liberal approach to amending pleadings.140 Because Iqbal didnot restrict Rule 15, it is still possible for a party to exploit the differencesbetween Rule 8 and Rule 15.

Moreover, when a district court denies leave because amending acomplaint to prevent dismissal under Rule 12(b)(6) would be futile,

frivolous, or impossible, appellate courts agree that the particular reasonsfor denial must be clear.141 This creates two significant advantages for aparty facing dismissal. First, a party that is aggressive enough to solicit the judges reason for denial and agile enough to amend its pleadingaccordingly will either win the judges approval of the amended complaintor, if the district court dismisses the amended complaint, enjoy a record thatfavors the party on appeal. Appellate courts are looking for an abuse of thedistrict courts discretion not to allow the party to amend, and an arbitrarydenial of leave to amend constitutes abuse.142

The second advantage depends directly on Iqbal. The district courtsreason for denying leave to amend must be clear.143 YetTwomblyand Iqbal

have complicated the analysis that courts are supposed to use to evaluate the

jurisdictional and other errors that existed in the original complaint but raises no new issues ofmaterial fact.).

137. 47 F.3d 47, 52 (2d Cir. 1995).

138. Id. at 5052.

139. See supra Part II.A (discussing how and when the Court restricted the pleadingstandard).

140. See supraPart II.C (discussing how liberal a liberal standard for leave to amend canbe); Part III.A (characterizing leave to amend as a liberal standard, even following a 12(b)(6)dismissal).

141. See supraPart II.C.3 (discussing how, when, and why courts need to give reasons for

denying leave); see also supraPart III.B (discussing futile, frivolous, and impossible amendmentsas reasons for a court to deny leave).

142. See supraPart II.C.3 (concluding that courts must either give leave to amend or give agood reason to deny leave to amend); see also supra notes 8789 and accompanying text(discussing the standards of review relevant to Rule 15).

143. See supraParts II.C.3, III.B.


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federal pleading standard.144 This confusion can serve as an additionalargument for appellants. In order to gain an edge in the argument, theappellant can reference the liberal precedent of Rule 15.

Unfortunately, this motion strategy is neither inexpensive nor quick. Ina sense then, the Twombly and Iqbal decisions fail to encourage judicialeconomy and expediency.145 The two decisions have forced, or likely will

force, parties to abandon fundamental aims of civil procedure.146

Forexample, prior to the Iqbal decision, parties with few resources wouldattempt to avoid the need to amend by filing a complaint like the drafters ofthe Rules intended, the plain meaning of the Rules suggest, and the formsillustrate. After Iqbal, however, these same parties will feel the need to gobeyond the short and simple statements of the past in order to feelconfident that they will not need to redraft the complaint. While parties canresort to Rule 15s steadfast and universally liberal amendment process iftheir complaint fails to meetIqbals new pleading standard, the amendmentprocess takes time and money. Ultimately, a party might plead before trial,replead, appeal, and then need to start the process all over again if the

appellate court remands the case. Rule 15 provides a safeguard to 12(b)(6)dismissal after Iqbal, but the motion strategy behind this safeguard can bedifficult and expensive.

IV. CONCLUSION

This Note explored a partys ability to amend a pleading under Rule 15that a court might otherwise dismiss under Rule 8s post-Iqbal pleadingstandard. The analysis demonstrated that circuit courts offer diverseapproaches to some aspects of Rule 15. At the same time, they share a near-universal appreciation for a liberal standard that favors the opportunity toamend a pleading. This Note presented a motion strategy based on Rule 15

that reduces the sting of Rule 8s new restrictive approach to the once-liberalfederal pleading standard. However, while this strategy provides a path for

144. Moreover, this analysis is rife with inconsistencies. See supraPart II (arguing that thenew pleading standard of Rule 8 conflicts with the history of the Rules, appellate jurisprudence,and other procedural rules). Commentators have particularly identified Iqbals distinctionbetween fact and legal argument as complicated or even capricious. Bone, supranote 8, at 86267; Elizabeth Thornburg, Law, Facts, and Power, 114 PENN ST.L.REV.PENN STATIM 1 (2010),http://www.pennstatelawreview.org/114/114%20Penn%20Statim%201.pdf; see also supranotes 5455 and accompanying text (discussing the IqbalCourts distinction between fact andlegal conclusion); cf. Walter Wheeler Cook, Statements of Fact in Pleading Under the Codes, 21COLUM.L.REV. 416 (1921) (providing an early account of courts struggling with the nebulous

distinction between law and fact).145. Frugality and efficiency are also goals; however, the method to achieve these goals is

not, and has never been, a heightened pleading standard. SeeFED.R.CIV.P. 1; supraPart II.A.

146. SeeBROOKS,supranote 33, at8896 (concluding that a heightened pleading standardadversely affects women and racial minorities in particular); Stancil, supranote 26, at 11417(describing the economic benefits of a liberal pleading standard).


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litigants with meritorious claims to circumvent the barriers to justice that arestrictive pleading standard creates, the strategy also requires time andresources. These additional costs are contrary to the Rules overarchinginterests in judicial efficiency and access to the courts. Thus, rather thanenhancing the goals of federal procedure, Twombly and Iqbal diminishedthem by stripping Rule 8 of its once-liberal standard. Nevertheless, Rule 15

can ensure that litigants have access to the courts, but now the path islonger, more difficult, and involves sorting through a diverse appellatejurisprudence.

Documents

Rule 15 a Limited Safety Net for 12b6 After Iqbal ILR96 4 Reuland