Another analytical skills test: What does “conclusory” mean in the context of Iqbal?

In Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), the Court admonishes that “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to satisfy the pleading standards in Rule 8 of the Federal Rules of Civil Procedure and to survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief may be granted. (My emphasis.)

Go ahead, make my day: tell me what “conclusory” means as used by Iqbal.  

Does the word have a firm legal meaning that can be applied as a neutral principle?  Or, is the word more like the meaning of “pornography” proffered by one of the Justices:  I know it when I see it.  If the latter is your view, what does Iqbal stand for?

Please respond if you have time today.  Later today, or perhaps tomorrow, I will provide a fascinating guide to these questions.

But for now, tell me, what does “conclusory” mean in the context of Iqbal?

RGK

PS. One of the attributes of my blog platform is that it speel checks.  Anyway, the spell-checker does not like “conclusory.”  What does that mean?

13 responses

  1. Judge:

    Aspiring fiction writers are urged to “show, not tell.” And we all know what that means:

    “The Modern Lawyer was disappointed by the Court’s order denying the Motion to Dismiss.” – Tells.

    “The Modern Lawyer’s computer chimed to signal a new e-mail message. Seeing it was from federal court, and he had waited four months for the order, he quickly clicked on the link. He blinked, attempted to scroll down, but only found one page. His face reddened as he turned from the screen. He slammed the door to his office, dictated a 600-word Motion to Reconsider, told his secretary not to transcribe it, and went for a walk.” Shows.

    Same thing here.

    Fed R. Civ. P. 8 says a pleading has to have a “short and plain statement *showing* the pleader is entitled to relief.” Facts, laid atop the law, entitle the pleader to relief.

    “The defendant was negligent in his operation of the motor vehicle” is a conclusion and, without more, doesn’t do any “showing.” I’m just telling the Court I’m entitled to relief. This, Iqbal says (and given that the denial of a Rule 12 motion will necessarily cost my client tens or hundreds of thousands, I think rightly), is insufficient.

    “The Defendant was operating his vehicle at a speed in excess of the posted speed limit, and failed to stop at the intersection while traveling westbound on Main at First Street, despite the presence of a stop sign.” – Those are facts (or at least allegations) and they are capable of showing something. And the Court can determine whether these facts are (a) plausible and (b) if proved would entitle the pleader to relief.

    If an allegation tells, it’s conclusory. If it shows, it’s not. Not that the Complaint should read like a screenplay, but it should show more than it tells.

    I look forward to your further comments.

    ML

  2. Lest I be accused of merely airing a “defense lawyer’s” prejudices (The Modern Lawyer actually bats from both sides of the plate), the above goes just as well for the horse-hockey defenses pleaded in answers, such as “Plaintiff’s claims are barred by the doctrine of unclean hands.” Not only is this a defense which has, so far as I know, not worked since Blackstone, but it’s totally a conclusion and deserves the same Twombly/Iqbal treatment.

    ML

  3. My attempt to answer your question. Tellingly, I think it may be no more helpful than Iqbal itself:

    Conclusory allegations are assertions of the bare conclusions necessary to support a cause of action. They are known by their accompanying lack of factual allegations that, if true, would tend to support the ultimate conclusion.

  4. Stanford rising 2L here. Here is what is in my outline from my Fall 1L Civ Pro class: “A. Disregard all conclusory allegations. Conclusory allegations 1) simply restate liability language for the cause of action 2) are entirely comprised of generalizations or summaries of what the underlying facts are. B. Take all non-conclusory allegations as true (non-conclusory: case specific facts addressed to legal elements in the claim).

    Thanks for the great blog.

  5. We get a lot of Sec. 1983 prisoner suits for deliberate indifference to serious medical needs. (For background for your other readers, because I’m sure RGK (Your Honor!) knows this: these kinds of cases can be dismissed before the defendants are even served via a 28 U.S.C. 1915A merit review hearing.) So I will use that as an example (since I am most familiar with that scenario.)

    If the prisoner alleges, “My doctor was deliberately indifferent to my serious medical needs” (and during his hearing cannot allege any more) then we can treat that as “conclusory” and his claim is dismissed (perhaps with a strike).

    Other statements often also dismissed for failure to state a claim upon which relief may be granted (which is often because the allegation is “conclusory”) would be, for example, the following:

    “The doctor did not see me when I wanted”; “The doctor did not give my medication”; “The doctor did not give me surgery when I wanted it”.[1]

    But if the prisoner further alleges, either sua sponte, or on questioning, that he was experiencing pain in the lower abdomen and was vomiting up blood, that he went to the infirmary and saw Nurse Ratchet, who set up an appointment with Doctor Strangelove, who saw him on May 12, 2012 and May 13, 2012, and who gave him ibuprofen and told him to sleep it off — is enough to not be “conclusory”, whether he has a medically valid injury or not,

    It feels like the general rule is that if there’s enough detail (and I shy away from the word “facts”) for the defendant to identify the alleged injury, alleged cause of action, and the person who was allegedly responsible, that’s close enough for horseshoes, hand grenades and Iqbal.

    The thing is that the vast majority of people (much less prisoners) with an honest grievance (whether compensable or not) has, due to their dull axe, many details. This, to my inexperienced mind, fits roughly in with the bare rudiments of notice pleading. I’m not so sure about how the whole plausibility thing fits in, but it does make for lovely language when granting a motion to dismiss.

    [1] Notably, because this colloquy is at a hearing, as long as the prisoner provides this much, the court queries the prisoner as to further details. If the prisoner cannot provide any more detail, I think it’s hard to think of it as anything but dismissible. (Google spell check doesn’t like that word either.)

  6. Rich, time again for the underrated legal scholar Humpty Dumpty to weigh in:

    “When I use a word,’ Humpty Dumpty said in rather a scornful tone, ‘it means just what I choose it to mean — neither more nor less.”
    “The question is,” said Alice, “whether you can make words mean so many different things.”
    “The question is,” said Humpty Dumpty, “which is to be master— that’s all.” (Carroll, Lewis, “Through the Looking Glass, and What Alice Found There” (1871), ch. 6).

    Iqbal and Twombly are fools’ errands ordered by the Supreme Court, with District Courts the errand boys and girls. Every affirmative statement is conclusory in some sense. (Including the preceding sentence.) Before these fool cases came along, I used to tell my Civil Procedure students that the primary result of making a 12(b)(6) motion will be to give the plaintiff a roadmap of what he/she/it needs to prove, with perhaps the possible inconvenience of forcing the plaintiff to re-plead.

    Now I can’t really say that anymore, and I’m teaching Civil Procedure for the first time in several years this fall. Now I’m trying to figure out how to say: “Well, take a run at it, you might just get lucky.”

    Of course, perhaps the Court could have been troubled to look at Form 9, which provides that the following suffices to plead negligence: “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.”

    I hope this clears things up for you. Pat.

  7. This is not entirely responsive to your point, but it seems a good time to point out that Twombly does refer to Form 9 in a footnote:

    [10] If the complaint had not explained that the claim of agreement rested on the parallel conduct described, we doubt that the complaint’s references to an agreement among the ILECs would have given the notice required by Rule 8. Apart from identifying a seven-year span in which the §1 violations were supposed to have occurred (i.e., “[b]eginning at least as early as February 6, 1996, and continuing to the present,” id., ¶64, App. 30), the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies. This lack of notice contrasts sharply with the model form for pleading negligence, Form 9, which the dissent says exemplifies the kind of “bare allegation” that survives a motion to dismiss. Post, at 6. Whereas the model form alleges that the defendant struck the plaintiff with his car while plaintiff was crossing a particular highway at a specified date and time, the complaint here furnishes no clue as to which of the four ILECs (much less which of their employees) supposedly agreed, or when and where the illicit agreement took place. A defendant wishing to prepare an answer in the simple fact pattern laid out in Form 9 would know what to answer; a defendant seeking to respond to plaintiffs’ conclusory allegations in the §1 context would have little idea where to begin.

    The dissent, as indicated, relies on it even more. My only real point is that I think Form 9 (and its exemplar) survives Twiqbal, if only because it is expressly endorsed my the Tombly majority. Iqbal did nothing to change that.

  8. If it survives, it does so in a vegetative state. The complaints in the two Supreme Court cases provided vastly more information than Form 9. The two relevant questions should be: 1) Does the complaint provide enough so that the defendant can figure out what the plaintiff is griping about? 2) Looking just at the pleadings, is there a chance that the plaintiff could win? If the answer to both of those question is “yes” then the complaint should survive a 12(b)(6) motion. If Congress (or someone) wants to require that the plaintiff come forward with more information at the pleading standard (as Congress did with securities litigation) then let it happen in the light of day. But plaintiffs are at an enormous information disadvantage early on. They know that something bad happened. They know enough to know that the defendant(s) are the likely culprit(s). They have a legal theory. They need to do some discovery to fill in the blanks. If they can’t, then that’s what summary judgment is for. I know that prisoner litigation, for instance, is a pain. Then create a process by which someone can sort out which cases might have some merit from those that are wastes of time. FRCP 8 is poorly equipped to perform that function.

  9. Pat,

    I agree entirely that the Supreme Court should not use substantive law as a Trojan horse to make procedural changes thereby bypassing the rule-making process.

    There are really two ways to look at Twombly and Iqbal. (1) They don’t mean a damn thing because they merely sanctified what most trial judges were really doing. (2) They are a huge sea change, but nobody knows what they mean except that pesky plaintiffs are always at peril.

    I prefer (1). That way I can continue in my lazy ass ways developed over the last decades. If I smell a distinct odor, pass go. If I smell nothing but air freshener, you’re done. I should say that I was never one to take Conley v. Gibson too seriously. But, then again, I am activist judge.

    All the best.

    RGK

  10. I think your point is an especially good one. Incidentally, I manage the pro lawyers here in Nebraska.

    I agree entirely that “[Twombly and Iqbal] . . . make for lovely language when granting a motion to dismiss” in a pro se case. But, like you, I don’t really see that we will be much tougher than we were before.

    All the best.

    RGK

  11. Ryan,

    Read the subsequent post. The article mentioned in it does a fantastic job of explaining the trouble caused by using a word that may have no meaning save for the words around the word.

    All the best.

    RGK

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