Fight The Hypo

In a RICO case, Judge Posner opined on the post-Twombly standard on motions to dismiss under Fed. R. Civ. P. 12(b)(6).

(H/T How Appealing)

The case involved an allegation that a municipal government had pre-empted their efforts at building a marina on their land by conspiring in a “continuing violation” of the RICO statute. The trial judge dismissed for failure to state a claim and Posner agreed (the claim was “threadbare”). But, on Twombly, added:

Bell Atlantic must not be overread. The Court denied requir[ing] heightened fact pleading of specifics,” 127 S. Ct. at 1974; “a complaint . . . does not need detailed actual allegations.” Id. at 1964. Within weeks after deciding Bell Atlantic, the Court reversed a Tenth Circuit decision for requiring fact pleading. Erickson v. Pardus, 127 S. Ct. 2197 (2007) (per curiam). A prisoner, proceeding pro se, had complained that he had Hepatitis C, that he was on a one-year treatment program for it, that shortly after the program began the prison officials withheld treatment, and that his life was in danger as a result. That was the ontext in which the Court said that “specific facts” need not be pleaded. Id. at 2200. A complaint must always, however, allege “enough facts to state a claim to relief that is plausible on its face,” Bell Atlantic Corp. v. Twombly, supra, 127 S. Ct. at 1974, and how many facts are enough will depend on the type of case. In a complex antitrust or RICO case a fuller set of factual allegations than found in the sample complaints in the civil rules’ Appendix of Forms may be necessary to show that the plaintiff’s claim is not “largely groundless.” Phillips v. County of Allegheny, 515 F.3d 224, 231-32 (3d Cir. 2008). If discovery is likely to be more than usually costly, the complaint must include as much factual detail and argument as may be required to show that the plaintiff has a plausible claim. See also Iqbal v. Hasty, 490 F.3d 143, 157-58 (2d Cir. 2007).