Codifying Plausibility Discovery: A Proposal to Amend Rule 12

In 2007 and 2009, the Supreme Court upended the long-understood notice pleading framework, replacing it with the plausibility standard introduced in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal‍. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson, and that courts now generally apply the framework set forth in Twombly and Iqbal—which instructs judges to determine whether the nonconclusory allegations in a complaint plausibly show entitlement to relief—when defendants move to dismiss for failure to state a claim. The raison d’être of this Essay is my proposal, in Part II, for an amendment to Rule 12. In substance, this proposal amounts to a rebooting of efforts in the period shortly after Iqbal’s decision, to promote limited pre-dismissal discovery as a means of blunting Twombly and Iqbal’s effects on cases involving asymmetric information.