Codifying Plausibility Discovery: A Proposal to Amend Rule 12

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Introduction

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[1] and Ashcroft v. Iqbal[2]. This change was widely decried in the academy[3] and among many attorneys who typically work for plaintiffs.[4] Others viewed the cases as a welcome, overdue shift in a doctrine they thought too readily allowed “a plaintiff with a ‘largely groundless claim’ [to] be allowed to take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.”[5]

Twombly and Iqbal have been cited enormous numbers of times in federal court cases,[6] reflecting both that pleading occurs at the outset of cases and that Rule 12(b)(6) motions to dismiss for failure to state a claim are now a staple of federal court practice. There is a voluminous scholarly literature on these cases—much of it lamenting them,[7] some suggesting their practical effects are more limited,[8] some trying to measure these effects,[9] some proposing repeal or other alternatives,[10] and at least one relating the remarkable ordeal that the Iqbal case represented for plaintiff Javaid Iqbal himself.[11] For this reason, I will not attempt any kind of comprehensive review of the literature or the evidence on the Supreme Court’s plausibility pleading revolution.

Instead, I will take it as given that such a revolution did occur. I proceed from the assumptions that the pre-Twombly/Iqbal pleading standard was, roughly speaking, the one announced in Conley v. Gibson,[12] 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. These are cases in which (1) the defendant knows or can access information necessary to allege facts about the merits of the case and (2) the plaintiff lacks the capacity to obtain such information on its own via reasonable efforts. Several scholars—including at least Suzette Malveaux,[13] Scott Dodson,[14] and Edward Hartnett[15]—proposed that such a solution was consistent with a careful but direct application of the discovery rules by courts. Scott Dodson referred to such discovery as “New Discovery.”[16] Due to its more readily seen connection to Twombly and Iqbal, I will adopt Suzette Malveaux’s alternative term—“plausibility discovery.”[17]

There are cases in which courts have engaged in one or more aspects of plausibility discovery,[18] and I have no doubt that some—perhaps even many—judges have incorporated such an approach at times. Encouraging judges to do so was an understandable approach early in the post-Iqbal period. But whether a party that needs plausibility discovery to satisfy Iqbal gets it should not depend on the luck of judge assignment, because plausibility discovery will frequently be critical to meet the plausibility standard in asymmetric information cases.

Further, more than fifteen years after the first use of plausibility discovery, the phenomenon appears to be rare and of questionable viability under current interpretations of Twombly and Iqbal. More than one appellate court has held that Iqbal disallows discovery aimed at plausibility.[19] Notwithstanding the fact that the Rules contain no automatic stay of adversarial discovery while a motion to dismiss is pending,[20] Iqbal certainly can be read to prohibit such discovery.[21] My Westlaw searches turned up only fourteen district court cases that used the term “plausibility discovery” and no such cases in the U.S. Courts of Appeals.[22] Of course, a court might allow plausibility discovery without using the specific term “plausibility discovery,” which has clearly happened in some cases.[23] Nevertheless, I doubt that courts commonly deploy plausibility discovery given the language in Twombly and Iqbal, given that some appellate courts have determined that plausibility discover is not allowed, and the near-total absence of the term itself in the federal reports. Therefore, only codification of plausibility discovery promises to secure the benefits promised by plausibility pleading (early dismissal of low-merit cases and incentives to plead informatively in other cases) while broadly dodging what is likely its greatest cost (dismissal of meritorious cases due to the challenge of pleading when only defendants possess the information necessary to meet the plausibility standard).

I am not the first to suggest a Rules amendment to address the drawbacks of the plausibility standard,[24] and despite the failure of such an amendment to materialize in the past, I believe now is the time to try again. Twombly and Iqbal, and pleading policy generally, continue to reflect significant ideological conflict. Right or wrong, I think it’s fair to say that most critics of the plausibility standard worry that this standard harms the plaintiffs whom people on the left generally regard as sympathetic (e.g., workers suing for employment discrimination, prisoners, persons alleging antitrust violations), whereas most supporters of the plausibility standard generally believe litigation previously too easily victimized their favored defendants (e.g., law enforcement agencies and officials, large corporations). But I believe significant changes in the political valence of plaintiffs and defendants are underway, with plaintiffs having ideological positions on the right now launching aggressive litigation against defendants typically supported by those on the left.[25]

Palin v. New York Times—an unusual defamation case that has made many headlines, initially because of Judge Jed Rakoff’s efforts to avoid some of the pathologies of the plausibility pleading regime[26]—perfectly encapsulates this changing dynamic. In this case, a political-media star of the right sued The New York Times for defamation due to its inaccurate characterization of her political action committee’s years-earlier conduct.[27] I leave for later the details of the case and its relationship to my proposal, emphasizing for now only that Palin demonstrates that relaxing the plausibility standard in asymmetric information cases could be attractive to people across the political spectrum. Hopefully, the recognition that this proposal would better reconcile justice and efficiency interests, which the Federal Rules of Civil Procedure aim to balance,[28] will make it easier for pleading reform to pass muster with the rules committees, and with the Supreme Court thereafter.

The remainder of this Essay proceeds as follows. Part I discusses the benefits and costs that inhere in the plausibility standard. Part II discusses the proposed amendment to Rule 12 to address those costs, the text of which is provided in the Appendix. Proposed Rule 12(j) would require defendants who move to dismiss for lack of plausibility to deny plaintiffs’ allegations (or admit or state that they lack sufficient information to do so). Proposed Rule 12(k) would provide plaintiffs access to narrow and targeted discovery, where they otherwise cannot reasonably obtain the information necessary to address a defendant’s motion. In Part III, I discuss Palin v. New York Times. I explain how to see Judge Rakoff’s unusual evidentiary hearing, and its procedural effects, as an illustration of how codifying a requirement for plausibility discovery would change the evaluation of motions to dismiss for lack of plausible pleading.[29] In Part IV, I consider how Twombly and Iqbal might have proceeded had proposed Rules 12(j) and (k) applied to pleading in those cases. I then conclude by emphasizing the Rule amendment’s promotion of fairness and access to justice across the political spectrum.

I. Benefits and Costs of Plausibility Pleading

This Section sequentially discusses the good and bad practical effects of Twombly and Iqbal. I start in Part I.A with two ways in which, I think, everyone should agree the plausibility standard has some positive effects. In Part I.B, I describe several harmful aspects of the plausibility standard. I offer no attempt in this piece to determine whether the various good effects outweigh the various negative effects, or vice versa. That would require both lots of unavailable empirical information and serious normative assessment. My objective in this Section is just to describe the plausibility standard’s practical advantages and disadvantages.

A. Benefits

Twombly and Iqbal are founded on “a belief that district courts will be able to usefully forecast, on the basis of the plaintiffs’ complaints, the set of cases in which discovery will yield evidence of liability.”[30] In cases where that belief is correct, the plausibility standard enables district courts to filter out low-merit cases early. By preventing such cases from moving past the pleading stage, the plausibility standard reduces costs for the judicial system and for the parties. And if it also reduces the threat of frivolous litigation, then the plausibility standard could have salutary primary-behavior effects as well. For example, if businesses spend resources trying to avoid frivolous lawsuits, then reducing the payoff from bringing frivolous lawsuits will free up those resources.[31]

Additionally, the threat that the defendant will file a Rule 12(b)(6) motion raising plausibility grounds provides plaintiffs with substantial incentives to plead more facts than they would under Conley’s no-set-of-facts standard.[32] Pleading in detail not only improves plaintiffs’ chance of beating such a motion, it also reduces defendants’ incentive to file such a motion in the first place. Thus, the plausibility standard may incentivize more detailed, and possibly better, initial pleading by plaintiffs, as well as better pre-filing investigation of claims.

B. Costs

In Twombly and Iqbal, the Court replaced a standard that everyone understood with one that can’t be applied without great subjectivity, potentially making easy decisions hard. Iqbal’s standard, after all, relies on “judicial experience and common sense,”[33] and judges have different experiences and different notions of common sense. This is likely even more true today, given the different pools of lawyers from which the Bush-43, Obama, Trump I, Biden, and Trump-II administrations have drawn in nominating lower court judges. And note that it’s not just district court judges whose heterogeneity matters: Because Rule 12(b)(6) motions are adjudicated de novo on appeal, circuit judges’ views matter, too.

One cost of the plausibility pleading standard is that in every case where the defendant loses a motion to dismiss for lack of plausibility, there will have been substantial time and resources spent litigating a question that has no direct bearing on case merits.[34] Further, there’s a wide middle ground where judges operating under the plausibility pleading standard will disagree about a given complaint’s legal sufficiency. In such cases, it will matter greatly to the parties which federal judge hears their case. That creates forum shopping incentives. These include both incentives to remove or not[35] and to choose a district court within the federal system in cases where the plaintiff has multiple venue options, or in which the defendant might win a transfer.

Further, there is a set of meritorious cases in which the plausibility pleading standard erects a real and possibly dispositive hurdle to relief. The canonical point here is about asymmetric information where the defendant has information the plaintiff needs to plead.[36] Here it’s worth addressing an intriguing argument made by William Hubbard[37]—that the pleading standard actually doesn’t matter at all. Hubbard points out that it’s in a plaintiff’s interests for the complaint to include facts that help maximize the expected settlement amount by signaling the case’s strength.[38] Thus, he argues, even with no pleading standard, plaintiffs’ attorneys would want to plead lots of facts—as many as help them increase settlement value. In sum, Hubbard’s argument is that the plausibility standard represents what economists call a nonbinding constraint: “Plaintiffs’ attorneys set a higher bar than the courts.”[39]

But what about the asymmetric information cases that so many commentators have worried about? You can’t plead information you don’t have, and by construction, plaintiffs lack key facts in those cases. Hubbard argues that plaintiffs will have trouble bringing such cases under the plausibility standard. But, he argues plaintiffs also wouldn’t file those cases with a lower pleading standard—or even with no pleading standard at all. The reason is that plaintiffs and attorneys who lack the information necessary to have a high enough probability of winning to justify suing will rationally recognize that it isn’t in their interests to file suit in the first place. So, the problem in asymmetric information cases isn’t the pleading standard, but rather the fact that plaintiffs just don’t have a good enough chance of winning the case at trial to make litigation worthwhile.

Hubbard’s elegant argument has considerable force in general, but it fails to establish the irrelevance of the pleading standard in asymmetric information cases. The simplest evidence against the argument’s sweep is that if plaintiffs would never file suit unless they had sufficient facts to meet a relatively high pleading standard, then neither Twombly nor Iqbal would have been filed. That many cases have been dismissed in the teeth of the plausibility standard since Twombly and Iqbal adds further counterevidence.

And of course, some lawyers litigate to promote their conception of the public interest rather than out of a desire to earn a profit. Fee-shifting statutes make this potentially worthwhile by ensuring that lawyers’ fees will be covered even when the plaintiff obtains a relatively small judgment or settlement.[40] One can see the Court’s concern in Iqbal for protecting high government officials from discovery[41] as partly responding to just this structural fact.

Finally, all that’s necessary for plaintiffs to rationally pursue a case despite initial lack of factual information is for them to believe that discovery would sufficiently increase their probability of winning a judgment or settlement. And that’s exactly the situation in asymmetric information cases. Consider an example in which a Black person wants to sue a city for a policy of deliberate indifference to the use of excessive force against Black people. The would-be plaintiff lacks knowledge necessary to allege the specifics of such a policy—when it was announced, what its parameters are, etc.—but suppose there have been other instances of the city’s use of deadly force against Black people under questionable circumstances. Then under the Conley standard, it makes sense to sue if a lawyer thinks discovery would likely yield enough information to get through summary judgment in this case. But under the plausibility standard, the same case is a likely loser from the start given the requirement that the plaintiff plead specific facts just to get to discovery.[42] In this example, then, the pleading standard is the fulcrum determining the litigation’s viability.[43]

For plaintiffs unlucky enough to be assigned a judge who applies Iqbal strictly in asymmetric information cases, the result will be the pleading standard as a catch-22: They will have no chance to reach discovery to get the information they need to plead adequately to reach discovery. And this will be every bit as true in cases in which the defendant is guilty as sin as in cases where the plaintiff is simply mistaken or on a fishing expedition. Further, because Rule 12(b)(6) motions come before the defendant is required to answer, the defendant needn’t even deny the alleged wrongdoing.[44]

Thus, whatever one thinks about the overall desirability of the plausibility pleading standard, it has some bad features. In place of what was an objective standard, Iqbal substituted one that features enormous subjective discretion, such that the “judicial experience and common sense” of the judges assigned at the trial and appellate levels may be determinative as to whether the merits are reached.[45] That surely induces some defendants to take a shot at getting dismissals in meritorious cases that under Conley would instead have gone right to discovery. A concomitant increase in litigation expense is surely one result for some cases. And critically, in cases where asymmetric information plays an important role—that is, cases where fulsome discovery is especially important to the doing of justice—the plausibility standard will prevent plaintiffs from securing relief even in the most meritorious of circumstances.

II. Codifying Plausibility Discovery

Reasonable people can differ about the ideal pleading standard. The central problem that the plausibility standard was supposed to solve was that under Conley, it was too easy to bring meritless lawsuits. The central problem that the plausibility standard caused was that it made it too hard to bring meritorious lawsuits whose pleading requires information that is under the control of the defendant. A reform that loosens the standard in asymmetric information cases without relaxing it in other cases should thus be broadly attractive. This Section proposes one by suggesting the codification of proposals, from the dawn of the Iqbal era, that courts should use the existing Rules to allow plausibility discovery on their own.[46]

As Malveaux noted, “pre-merits” discovery is widely used in other procedural contexts, “including class certification, qualified immunity, and jurisdiction.”[47] She pointed out that although Rule 26(d)(1) generally disallows adversarial discovery before the Rule 26(f) conference, Rule 26(d)(1) also allows a court order to vitiate that requirement.[48] Malveaux also documented the incipient use of this approach in actual litigation.[49] But as noted in the Introduction, the practice does not seem to have taken off, and relying on judicial discretion to allow plausibility discovery is an inadequate solution to the broad challenges that Twombly and Iqbal created for plaintiffs in asymmetric information cases.

In Part II.A, I offer an overview of how proposed Rule 12(j) would work. Part II.B provides an overview of proposed Rule 12(k). The text of the proposed amendment appears in the Appendix.

A. Proposed Rule 12(j): the Requirement to Deny

Proposed Rule 12(j) would impose a requirement on a defending party who moves to dismiss on plausibility grounds. Such a movant would have to “identify each factual allegation that . . . the movant would like the court to deem” either conclusory or implausible. They would then have to admit, deny, or declare an inability to do either with respect to each of these allegations.

A key justification for this requirement is the normative undesirability of allowing defendants to avoid responsibility for wrongdoing they would be required to admit if they had to file an answer. Another justification is that the requirement will facilitate the response of the party that pleaded the claim sought to be dismissed. The requirement enables the pleader to request limited discovery relevant to the allegations in question (see discussion below of proposed Rule 12(k)).

A defendant who has not engaged in alleged wrongful conduct would be able to truthfully deny the factual allegations advanced to establish liability. Defendants who aren’t sure have the option to respond by truthfully saying so—just as with an answer. Of course, defendants who admit factual allegations sufficient to establish a plaintiff’s plausible entitlement to a claim for relief cannot win a plausibility-based denial. Consequently, the requirement to deny can be expected to deter defendants from moving to dismiss on plausibility grounds when they know facts that would, if pleaded, entitle plaintiffs to get past the Rule 12 stage.[50] Putting all this together, the requirement to admit or deny will both deter unnecessary litigation activity (by eliminating the required adjudication of such motions) and ensure that plaintiffs with meritorious claims will not be prevented from obtaining discovery in the affected cases (by eliminating Rule 12(b)(6) dismissals of meritorious claims). Moreover, the proposed Rule 12(j) provides an incentive for plaintiffs to plead clearly to prevent defendants from artfully avoiding admission.

B. Proposed Rule 12(k): Special Discovery for Plausibility

Proposed Rule 12(k) would give plaintiffs in asymmetric information cases the opportunity to engage in narrow, targeted discovery when defendants move to dismiss on plausibility grounds. Allowed discovery would be limited to information that the plaintiff contends is necessary to negate the contention that the allegations specified by the defendant are conclusory or implausible.

The opportunity to obtain plausibility discovery would be limited in three ways, which should help keep the cost of allowing additional discovery from becoming high. First, proposed Rule 12(k)(1)(A) would allow only discovery that is otherwise allowed under Rule 26(b)(1)’s general scope definition for adversarial discovery, which encompasses “any nonprivileged matter that is relevant to any party’s claim or defense,” provided that it is “proportional to the needs of the case.”[51] Second, proposed Rules 12(k)(1)(B) and (C) ensure that plausibility discovery would be limited to information that plaintiffs cannot reasonably access without the cooperation of defendants or their agents. In this regard, the proposed Rule 12(k) has some similarity to the way work-product exceptions function under Rule 26(b)(3)(A); proposed Rule 12(k)(B) borrows language from that exception directly. And third, proposed Rule 12(k)(C) allows access to the requested plausibility discovery only if it would enable the pleader to provide additional detail sufficient to meet the 12(b)(6) standard. With these three requirements, proposed Rule 12(k)(1) focuses discovery narrowly on claims and material involving asymmetric information, addressing the basis for Justice Souter’s rejection of “careful case management” in Twombly.[52]

In situations where a plaintiff’s requested plausibility discovery meets the foregoing conditions, proposed Rules 12(k)(1)(D), 12(k)(2), and 12(k)(3) guide the court’s response. Proposed Rule 12(k)(1)(D) requires that the court either allow the plaintiff’s requested plausibility discovery or craft an appropriate alternative, unless the court simply denies the defendant’s motion to dismiss outright.[53] Proposed Rule 12(k)(2) requires the court to issue schedule-related and other orders to manage the process of plausibility discovery. Lastly, proposed Rule 12(k)(3) provides authority for any necessary tolling of limitations periods.[54]

Proposed Rule 12(k)(4) sets forth the purpose of the Rule, which is meant to guide its application in the varied contexts that will surely arise. It emphasizes that the point of proposed Rule 12(k) is to provide the plaintiff with an opportunity (subject to the requirements just described) to file an amended complaint that incorporates newly discovered facts and is thereby adequate to meet the plausibility pleading standard. Once such an amended complaint is filed, standard litigation procedure would occur, i.e., the defendant would have a choice between answering and moving to dismiss the amended complaint. If no amendment is filed after plausibility discovery, the court would issue appropriate orders, including potentially granting the motion to dismiss that triggered plausibility discovery.

As Malveaux and others have pointed out, use of plausibility discovery would lower the stakes of motions to dismiss for lack of plausibility.[55] Instead of requiring an all-or-nothing decision that results either in the case going to full discovery or the complaint being dismissed (perhaps with leave to amend), my proposed Rule 12(k) would give plaintiffs the choice to request a round of discovery narrowly targeted at addressing the defendant’s plausibility argument.

Courts would sometimes have to determine what discovery to allow, which adds some judicial burden, but they could do so without having to adjudicate the defendant’s motion to dismiss. This combination plausibly will, overall, save time and resources. Judicial and party resources that are now consumed litigating motions to dismiss instead would be invested in the service of improving the accuracy of pleading-related decisions. And defendants will reasonably choose not to challenge a complaint’s sufficiency in cases where they know the plaintiff will be able to discover key information addressing plausibility. On balance, these effects suggest that proposed Rule 12(k) would reduce litigation costs while increasing adjudicative accuracy and fairness.

Proposed Rule 12(k) responds to the legitimate concerns of both supporters and critics of the plausibility pleading standard. Supporters get a system with a built-in expectation that claims for relief should be pleaded with nonconclusory allegations of plausible facts by those claimants who can do so without requiring discovery from the defendant. Critics get a mechanism for appropriate discovery in cases where plaintiffs can’t reasonably be expected to meet the plausibility standard on their own.[56] Parties and judges get a reduced-stakes litigation stage that is targeted more precisely on the concerns that gave rise to the plausibility standard, and that incentivizes them to behave in cost-reducing ways given the merits. And crucially, allowing plausibility discovery addresses exactly the concern raised by Judge Easterbrook’s Discovery as Abuse article quoted by Justice Souter: “The timing” would no longer be “all wrong” because the Rules would allow judges to make the threshold determination of plausibility using only narrowly targeted discovery obtained before the gates to full discovery are thrown wide.[57]

III. Palin v. New York Times as a Prototype for Special Discovery

In 2011, Jared Lee Loughner rampaged through an outdoor shopping center in Tucson, Arizona.[58] He shot and killed several people, including a federal judge, and wounded many others, including then-Rep. Gabby Giffords, the Democrat who represented Tucson in Congress. Giffords survived but suffered a serious brain injury in the attack.[59] Not long before Loughner’s attack, the political action committee associated with former Alaska Governor and 2008 Republican Vice-Presidential nominee Sarah Palin (SarahPAC)[60] had publicized a map with crosshairs over multiple congressional districts represented by Democrats, including Giffords’.[61] Pictures of those Democrats appeared lower down in the SarahPAC graphic.[62] Speculation swirled that Loughner’s shooting spree might have been partly motivated by this map, but as the district court in Palin later observed, ultimately “articles published in the [New York] Times and elsewhere stated that no such connection had been established between the circulation of the SarahPAC Map and the Loughner shooting.”[63]

Six years later in Virginia, James Hodgkinson targeted a congressional baseball game during his own shooting spree, badly wounding Rep. Steve Scalise of Louisiana, who was a member of the Republican House leadership.[64] Later that evening, The New York Times (henceforth, the Times) published an unsigned editorial online, decrying both that day’s shooting and the wider American political climate.[65] This editorial, which was also published in the print edition of the Times the next day, compared the shootings of Scalise and Giffords.[66] The editorial said that in the Giffords shooting, “the link to political incitement was clear” ostensibly because, the Times said, the SarahPAC map “put Ms. Giffords and 19 other Democrats under stylized cross hairs.”[67] The editorial went on to say that with respect to the Scalise shooting, there was “no sign of incitement as direct as in the Giffords attack.”[68] The Times came under withering attack for its mischaracterization of the facts involving the SarahPAC map, and it published a revised version of the editorial and issued corrections online and in its print edition.[69]

Palin soon after filed a federal lawsuit against the Times in the Southern District of New York, alleging one count of defamation for the initial editorial’s errors.[70] Under the Supreme Court’s Sullivan standard for public figures who sue for defamation, Palin had to establish that the Times had made its statements with “actual malice,” meaning “with knowledge that it was false or with reckless disregard of whether it was false or not.”[71] Not long before her filing, the Second Circuit had specifically held that the element of actual malice not only had to be proved, but also had to be plausibly pleaded in line with Iqbal.[72]

Asserting that the complaint failed to plausibly plead actual malice, the Times advanced two arguments.[73] First, the Times argued that the factual context was inconsistent with Palin’s assertion that the Times, as an institution, had set out to damage her.[74] The Times pointed out that it had “swiftly and prominently” corrected the errant statements in the editorial, that it had soon after the editorial’s publication published two other articles that “expressly reported that no connection between Loughner and the Crosshairs Map was ever established,” and that the editorial “itself included a link to another article that disclosed the same information.”[75] All of these facts were included in the complaint itself.[76] Thus, the Times argued that “[t]he only plausible inference a reasonable person might draw from these facts is that The Times made a mistake,” so that “it is inherently implausible to urge, as Mrs. Palin does, that The Times as an institution deliberately set out to defame her, while simultaneously arming its readers, including Mrs. Palin, with the very information she claims it was attempting to falsify.”[77]

Second, the Times pointed out that “the actual malice inquiry properly focuses on the state of mind of those who actually were responsible for the content of the publication at issue in a given case, not the collective knowledge imputed to their corporate employer.”[78] But the complaint pleaded “no facts which, even if proven, could plausibly support a finding that those employees of The Times responsible for the Editorial’s publication intentionally included in it statements about her that they knew to be false or probably false.”[79]

In its arguments regarding plausibility, the Times effectively highlighted the asymmetric information problem Palin faced. It observed that actual malice involves “a subjective standard focused on a defendant’s awareness of probable falsity” so that “an alleged failure [by the Times] to conduct [a pre-publication] investigation cannot plausibly establish actual malice unless the person responsible for the challenged statement’s publication already had ‘obvious reasons’ to doubt its accuracy.”[80] The complaint did allege that the Times must have known, organizationally, that its statements about SarahPAC were false due to its earlier publication of articles stating that no link had been established between SarahPAC’s crosshairs map and the shooting of Giffords.[81] But because the Times editorial was unsigned,[82] Palin couldn’t have pleaded sufficient facts regarding actual malice without an internal whistleblower. With its emphasis on subjective awareness and its focus on “the person responsible,”[83] this argument lays bare the asymmetric information problem facing Palin at the pleading stage.

Judge Rakoff characterized the motion to dismiss as presenting a “close question” regarding whether the complaint had plausibly pleaded actual malice.[84] He observed that the answer depends on “what inferences favorable to the plaintiff are reasonable given the circumstances alleged in the Complaint.”[85] The fact that the Times had previously published articles stating there was no link between SarahPAC’s crosshairs map and the Giffords shooting “would only evidence actual malice if the person(s) who wrote the editorial were aware of them.”[86] And, critically, “[t]his is information peculiarly within the knowledge of defendant.”[87] Again, asymmetric information.

No doubt, Judge Rakoff could have written an opinion either granting or denying the motion to dismiss by emphasizing the arguments he believed favored each respective outcome. Instead, Judge Rakoff issued what the Second Circuit would later call an “unusual” order,[88] one that led the case to take on a “unique form”[89]:

[T]o help inform the Court of what inferences are reasonable or unreasonable in this context, the Court, pursuant to Rule 43(c), will convene an evidentiary hearing on Wednesday, August 16 at 2:00 PM EST. At the hearing, defense counsel must produce the author(s) of the editorial, who (or each of whom, if there is more than one author) will be examined under oath by defense counsel for no more than thirty (30) minutes, to be followed by cross-examination of plaintiff’s counsel of no more than forty-five (45) minutes, to be followed by no more than fifteen (15) minutes of redirect by defense counsel. The Court also may question each such witness.[90]

This hearing occurred with editorial page editor James Bennet taking the stand.[91] The Second Circuit summarized Mr. Bennet’s testimony:

Bennet explained at the hearing that his reference to Palin in the editorial was intended to make a rhetorical point about the present atmosphere of political anger. He also recounted the editorial’s research and publication process and answered inquiries about his prior knowledge of the Loughner shooting six years earlier and any connection to Palin. Bennet testified that he was unaware of any of the earlier articles published by the Times, or by The Atlantic (where he had previously been the editor-in-chief), that indicated that no connection between Palin or her political action committee and Loughner had ever been established.[92]

After Palin and the Times filed supplemental memoranda in light of Mr. Bennet’s testimony, Judge Rakoff dismissed Palin’s complaint with prejudice.[93] Notwithstanding his earlier characterization of the actual malice element as raising a close question, he wrote that he “would readily grant the motion to dismiss” if he “were to solely limit [his] evaluation to the face of the complaint.”[94] An important part of that determination appears to be Judge Rakoff’s agreement with the Times that, as a matter of law, it was fatal that the complaint failed “to identify any individual who possessed the requisite knowledge and intent and, instead, attribute[d] it to the Times in general.”[95]

But Judge Rakoff went further, explaining that even if he were to construe the complaint as attributing actual malice specifically to Mr. Bennet, the resulting complaint would still fail to plead sufficiently.[96] From the factual context and testimony, Judge Rakoff determined that Mr. Bennet’s “behavior [was] much more plausibly consistent with making an unintended mistake and then correcting it than with acting with actual malice.”[97] Judge Rakoff also rejected, as inconsistent with New York Times Co. v. Sullivan, the idea that two other facts could count as evidence of actual malice—that Mr. Bennet had a “long association with liberal publications” and the fact that “his brother [was] the Democratic senator from Colorado who was endorsed by Congresswoman Giffords’ political action committee in his 2016 election and whose opponent was endorsed by Mrs. Palin in that same election.”[98] Nonetheless, Palin moved for reconsideration and to alter the judgment to allow an amended complaint, attaching a proposed amended complaint as an exhibit.[99] Judge Rakoff determined that this amendment would be futile, and he denied this motion.[100]

Palin then appealed to the Second Circuit, which vacated Judge Rakoff’s judgment and found that he had committed multiple errors. First was the use of the evidentiary hearing pursuant to Rule 43(c), which, the Second Circuit said, had “nothing to do with the proceedings at the motion-to-dismiss stage.”[101]

Second, and of greater interest here, the Second Circuit noted that Mr. Bennet’s testimony involved “matters outside the pleadings.”[102] The court therefore held that Judge Rakoff’s consideration of the testimony required applying the Rule 56 summary judgment standard, pursuant to Rule 12(d).[103] The Second Circuit also determined that Judge Rakoff’s dismissal couldn’t be construed as a summary judgment grant, in part because Judge Rakoff credited Mr. Bennet’s testimony, which was a future jury’s province.[104]

Third, the Second Circuit found that Judge Rakoff erred in finding Palin’s proposed amendments futile.[105] Moreover, it found that her proposed amended complaint did plausibly allege actual malice thanks to its extensive reliance on Mr. Bennet’s testimony from the evidentiary hearing—none of which, of course, was included in the original complaint.[106] The Second Circuit therefore reversed and remanded.[107]

With the benefit of this detailed (but I assure weary readers, still quite inexhaustive) discussion of events in Palin v. New York Times, I will now highlight some key points that the case teaches about proposed Rule 12(k) allowing plausibility discovery.

·         A plaintiff’s complaint ran into the asymmetric information problem with respect to a necessary element of its claim.[108]

·         The defendant emphasized the plaintiff’s lack of information about this element in moving to dismiss on plausibility grounds.[109]

·         The district court found it a close question whether the plaintiff had plausibly alleged the necessary element, and it observed that the requisite information was uniquely within the control of the defendant.[110]

·         The district court therefore issued an order giving the plaintiff narrow, targeted discovery from the defendant.[111]

·         With the benefit of this discovery, the plaintiff was able to craft an amended complaint that satisfied the plausibility standard. In this case, the special discovery was, by itself, sufficient to get the plaintiff past discovery.[112]

These elements of Palin v. New York Times embody the procedure that my proposed Rule 12(k) is meant to provide, as well as its potential utility. Palin illustrates how effective plausibility discovery can be in allowing cases to move forward when they should. To be sure, I am not saying that Palin’s case was a strong one substantively; juries have found against her twice.[113] But the dismissal of her case with no discovery perfectly illustrates the asymmetric information catch-22 that critics of Twombly and Iqbal have identified. The fact that the case’s pleading-stage merit could be demonstrated to the satisfaction of a three-judge Court of Appeals panel on the strength of an hour’s worth of oral testimony from a representative of the defendant demonstrates the potential power of narrowly targeted plausibility discovery.[114]

Judge Rakoff’s decisions in Palin v. New York Times don’t directly implicate proposed Rule 12(j). However, it’s clear from the facts set forth above that if the Times had been required to satisfy proposed Rule 12(j), it would have had no problem issuing a denial of actual malice as part of its motion to dismiss on plausibility grounds: Mr. Bennet’s testimony itself was essentially that he simply made a good faith, if sloppy, mistake, which is enough to support a denial of actual malice.

In my experience, the plaintiff’s roadblock Twombly and Iqbal erect generally has been opposed by those on the political left and viewed as beneficial by those on the right. But Palin v. New York Times illustrates that there is no reason this need be true. Further, as I noted above, there is reason to think right-wing interests now, and in the future, will find themselves more often in the role of plaintiffs.

Consider, for example, actions filed to challenge the 2020 election results, such as King v. Whitmer.[115] Or consider the creation of America First Legal (AFL), “a nonprofit law firm founded to unapologetically and boldly defend the rights of everyday Americans,” which touts its “rigorous litigation and government accountability efforts” to “oppose lawless government overreach and fight to restore the rule of law in the United States,”[116] and was co-founded by current White House Deputy Chief of Staff Stephen Miller.[117] AFL’s website lists priorities that include “Dismantling Diversity, Equity, and Inclusion,”[118] and it lists many cases reflecting priorities on the ideological right.[119]

Litigants on the political right thus can be expected to find themselves more frequently suffering the vagaries and asymmetric information–driven catch-22 aspects of Twombly and Iqbal. This might broaden the base of potential support for rules reforms such as my proposed Rules 12(j)–(k).

IV. How Twombly and Iqbal Might Have Proceeded Had the Proposed Amendments Been in Place

In this Section, I consider how Twombly[120] and Iqbal[121] might have played out if proposed Rules 12(j) and 12(k) had applied in those cases.

Consider first Rule 12(j). In Twombly, the defendant company executives and employees would have known whether they’d engaged in any agreements with other companies not to compete. So, if they had not engaged in any agreement with other companies, they should have been able to simply deny this pivotal allegation. If the complaint were too vaguely constructed for them to do so in good faith, they could have declared that they lacked information sufficient to admit or deny.[122] Similarly, in Iqbal, Attorney General John Ashcroft and FBI Director Robert Mueller would have had to either admit or deny having designed, ordered the implementation of, or approved a policy to detain people because of their religion or national origin, or assert that they lacked enough information sufficient to admit or deny. Had Ashcroft and Mueller admitted to these pivotal allegations, that would have reversed the Rule 12 result in the case—under circumstances in which such reversal would have inarguably been the right result. Such admissions also might have sped up the resolution of at least some merits issues.

Of course, admissions will happen rarely under proposed Rule 12(j), if ever. A defendant who would be forced to admit to the key alleged wrongful conduct in a complaint would be better off not bringing an implausibility-based motion to dismiss in the first place. And that itself would be a systemic improvement, because it would increase the odds of accurate determination of cases on the merits while giving parties appropriate incentives to avoid wasting the time, money, and judicial resources necessary to litigate a Rule 12(b)(6) motion.[123] And where plausibility-related motions are still brought, the civil litigation system will have the added benefit of the defendant’s averment that its conduct was not wrongful.

Next, consider how Rule 12(k) would have affected events in Twombly and Iqbal. The plaintiff in Twombly might have been able to secure plausibility discovery to help him plead details about an agreement not to compete. This discovery could have included, for example, a short deposition involving Richard Notebaert, the CEO of defendant Qwest, who might have known of an agreement that did exist.[124] Had the Court denied plausibility discovery, the case would have ended as it actually did—but only after a considered determination, pursuant to proposed Rule 12(k), weighing the merits of limited discovery that was tailored to the question. On the other hand, if the Court had determined that plausibility discovery should have been granted, then the case would have continued. The result would have been enough discovery to allow a considered determination about the plausibility of the allegations after the plaintiff had had a chance to obtain information to plead the existence of an agreement not to compete, as substantive antitrust law requires.[125]

Turning to Iqbal, if proposed Rule 12(k) had been available there, the Court could have considered several different options for Mr. Iqbal to engage in plausibility discovery. For example, he might have requested short oral depositions of Ashcroft and Mueller. Perhaps the court would have determined that this request would fail proportionality under Rule 26(b)(1) given the time pressures on the Attorney General and FBI Director.[126] It is also possible that the qualified immunity defense would also have blocked any such discovery.[127] This is not a given, to be sure, but proposed Rule 12(k)(1)(D)(i) would then require the court to consider granting access to “alternative special discovery sufficient to achieve the same aim” as what the plaintiff requested. That might have included narrowly focused written depositions under Rule 31, interrogatories under Rule 33, or documentary production under Rule 34.[128]

Maybe such limited discovery would not have resulted in enough for Mr. Iqbal to amend his complaint sufficiently to meet the plausibility standard the Supreme Court set forth in Iqbal. That would have been bad for Mr. Iqbal—just as bad as what actually happened in his case. But at least the dismissal of his claims against the Attorney General and FBI Director would have occurred only after he’d been given a chance to address plausibility concerns. There would have been a systemic-legitimacy value to that result. Rather than simply shutting down the case against the Attorney General and the FBI Director on the basis that uncabined discovery would be too costly,[129] the decision would have been the result of an on-the-ground conclusion that allowable targeted discovery was insufficient, or too costly, to support the claims. Reasonable observers could differ about whether the pleading hurdle in this resolution would be warranted. But such an argument would be a more general one about system design rather than a rote closing of the courthouse door without any attention to the stated concerns that motivated dismissal.[130]

Conclusion

Widely cited and deeply controverted, Iqbal cemented the pleading revolution that Twombly started. Taking seriously the divergence between Iqbal’s language and the cases that came before it yields the conclusion that Iqbal has shaped a federal pleading system with greater subjectivity and a higher pleading hurdle for plaintiffs to meet—most operatively in asymmetric information cases.

Iqbal recognizes the subjectivity point in its declaration that plausibility determinations will be a “context-specific task” whose valence will be resolved by “judicial experience and common sense.”[131] Unavoidably, a case like Palin might be dismissed by some judges and not others—as is illustrated by the Second Circuit’s reversal of Judge Rakoff’s determination that Palin’s proposed amended complaint failed to plausibly show entitlement to relief. Thus, under Iqbal’s plausibility standard, access to discovery is partly luck-of-the-draw for some cases.

Adding my proposed Rule 12(j) and 12(k) would, in many cases, refocus attention on the merits by eliminating gamesmanship in the use of the Rule 12(b)(6) motion to dismiss. By requiring access to plausibility discovery, it would eliminate much speculation over the likelihood that different types of facts would surface if (unfettered) discovery were allowed. Codifying plausibility discovery thus would help secure the primary benefits of the plausibility standard—an earlier mechanism for weeding out low-merit cases—while eliminating the baleful effect on plaintiffs with meritorious claims that are difficult to plead plausibly without discovery.

Adopting this proposal would therefore be a step forward for fairness, horizontal equity, and access to justice—all via access to only limited discovery provided when “the timing is all [right].”[132] And as the unorthodox use of pre-dismissal discovery in Palin v. New York Times demonstrates, this proposal offers something attractive for people across the political spectrum.

Appendix: Text of Proposed Rules 12(j) and 12(k)

Rule 12 of the Federal Rules of Civil Procedure is amended to insert the following text after Rule 12(i):

(j)  Requirement to Admit, Deny, or Declare Inability to Do Either. When a party defending against a claim seeks dismissal of that claim on the ground that the nonconclusory allegations in the pleading that sets out the claim fail to do so plausibly, the party must:

(1) identify each factual allegation that the movant would like the court to deem conclusory;

(2)  identify each factual allegation that the movant would like the court to deem implausible; and

(3) for each allegation identified in Rule 12(j)(1) and each allegation identified in Rule 12(j)(2), admit or deny the allegation, or declare that the party lacks knowledge or information sufficient to form a belief about the truth of the factual allegation.

In ruling on the motion to dismiss, the court must accept as true any allegation for which the party seeking dismissal has not complied with Rule 12(j)(1)–(3).

(k) Plausibility Discovery in Instances of Asymmetric Information. When a defending party moves for dismissal of or judgment on a claim on the ground that the nonconclusory allegations in the pleading setting out the claim fail to plausibly show that the pleader is entitled to relief, the pleader may seek limited plausibility discovery as follows:

(1) Listed Allegations and Limited Discovery. For each allegation listed by the movant in compliance with Rule 12(j), the person asserting the claim may seek limited discovery from one or more defending parties or their agents, provided that:

(A) the requested information must be otherwise discoverable under Rule 26(b)(1);

(B) the requested discovery should be denied if the requesting party could, without undue hardship, use other means to obtain information proposed to be discovered or its substantial equivalent; and

(C) the person asserting the claim cannot reasonably plead the listed allegations with enough detail to satisfy Rule 8(a)(2), but the person would be able to do so if given access to the information proposed to be discovered.

(D) The court shall either order the requested limited discovery or order alternative limited discovery that may be sufficient to allow the pleader to plead with sufficient detail to satisfy Rule 8(a)(2), unless the court determines that:

(i) the defending party’s motion should be denied even without such discovery, or

(ii) no reasonably available discovery would satisfy Rule 12(k)(1)(A)–(C).

(2) Timing and Administration. If the court issues an order granting requested special discovery, it must issue appropriate orders regarding timing of plausibility discovery and the filing of an amended pleading, as well as any other appropriate matters.

(3) Tolling. If the person asserting the claim responds as described in Rule 12(k)(1) within the time available to amend the pleading following service of the defending party’s motion, any limitation on that period of available time that would otherwise apply is tolled until the court rules on whether plausibility discovery will be allowed. If the pleader does not file an amended pleading within the allowed time, the court should issue any appropriate orders, including with respect to the motion to dismiss governed by this Rule 12(k).

(4) Purpose. The purpose of this Rule 12(k) is to allow a fair opportunity for a pleader to obtain the information necessary to file an amended pleading that includes nonconclusory allegations sufficient to satisfy Rule 8(a)(2) in cases where asymmetric access to necessary information otherwise prevents or substantially frustrates such amendment.

Copyright © 2026 Jonah B. Gelbach, Herman F. Selvin Professor of Law, University of California, Berkeley, School of Law. For insightful comments and suggestions, I thank participants at the California Law Review Symposium, “Iqbal at 15,” which took place at UC Berkeley Law in August 2025, with special thanks to Scott Dodson, Allan Erbsen, William Hubbard, and Adam Lauridsen. I also thank all the California Law Review editors who have worked on this piece for their diligent and helpful efforts.

       [1]. 550 U.S. 544 (2007).

       [2]. 556 U.S. 662 (2009).

       [3]. See, e.g., Alexander A. Reinert, The Costs of Heightened Pleading, 86 Ind. L.J. 119, 169 (2011) (arguing that his data “suggest that the costs imposed by heightened pleading may be substantial and may not create the assumed benefits”); Michael C. Dorf, Iqbal and Bad Apples, 14 Lewis & Clark L. Rev. 217, 228 (2010) (criticizing Iqbal’s “few-bad-apples narrative”); Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 Am. U. L. Rev. 553, 625 (2010) (criticizing the plausibility standard as too subjective); Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 Duke L.J. 1, 130 (2010) (suggesting that Twombly and Iqbal have sacrificed just resolutions for speedy and inexpensive ones); Mark Herrmann, James M. Beck & Stephen B. Burbank, Debate, Plausible Denial: Should Congress Overrule Twombly and Iqbal?, 158 U. Pa. L. Rev. PENNumbra 141, 148–53, 160–65 (2009) (advocating for Congress to supersede Twombly and Iqbal).

       [4]. See, e.g., Joshua Civin & Debo P. Adegbile, Restoring Access to Justice: The Impact of Iqbal and Twombly on Federal Civil Rights Litigation, 5 Advance 19, 35–36 (2011) (suggesting the plausibility pleading standard destabilized civil litigation and advocating for congressional intervention).

       [5]. Twombly, 550 U.S. at 558 (quoting Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 347 (2005)). For examples of defense-side lawyers’ statements in favor of the plausibility standard, see Jonah B. Gelbach, Note, Locking the Doors to Discovery? Assessing the Effects of Twombly and Iqbal on Access to Discovery, 121 Yale L.J. 2270, 2284 n.55, 2285 n.57 (2012) (collecting federal committee hearing statements by Andrew Pincus, Partner, Mayer Brown LLP; Gregory P. Garre, Partner, Latham & Watkins LLP, and former Solicitor General of the United States; and Gregory C. Katsas, former Assistant Attorney General of the United States and now Judge on the United States Court of Appeals for the D.C. Circuit; and comments by Daniel R. Karon, class-action defense lawyer; and Mark Herrmann and James M. Beck).

       [6]. Westlaw, “Bell Atlantic Corp. v. Twombly, 550 U.S. 544”, 402,932 results (Mar. 17, 2026) (on file with the California Law Review) (Keycite citing references filtered by “Cases”); Westlaw, “Ashcroft v. Iqbal, 556 U.S. 662”, 384,565 results (Mar. 17, 2026) (on file with the California Law Review) (Keycite citing references filtered by “Cases”).

       [7]. See, e.g., sources cited supra note 3.

       [8]. See, e.g., Alexander A. Reinert, Notice Pleading’s Quiet Return, 103 Wash. U. L. Rev. 353, 407–08 (2025) (studying post-Iqbal Supreme Court cases involving pleading—such as NRA v. Vullo, 602 U.S. 175 (2024)—and concluding that “the notice pleading principles which originated in 1938 still dominate the Court’s jurisprudence”); Adam N. Steinman, The Rise and Fall of Plausibility Pleading?, 69 Vand. L. Rev. 333, 389 (2016) (suggesting that Twombly and Iqbal can be read to maintain notice pleading); Adam N. Steinman, Notice Pleading in Exile, 41 Cardozo L. Rev. 1057, 1065 (2020) (pointing out cases that continue to endorse notice pleading and advocating for that view).

       [9]. See, e.g., Jonah B. Gelbach, Material Facts in the Debate over Twombly and Iqbal, 68 Stan. L. Rev. 369, 424 (2016) (analyzing nearly 2,000 cases and finding that “it is not possible to clearly determine the quality-filtering effects” of Twombly and Iqbal); Gelbach, supra note 5. See generally Joe S. Cecil, George W. Cort, Margaret S. Williams & Jared J. Bataillon, Fed. Jud. Ctr., Motions to Dismiss for Failure to State a Claim After Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules (2011); Joe S. Cecil, George W. Cort, Margaret S. Williams, Jared J. Bataillon & Jacqueline G. Campbell, Fed. Jud. Ctr., Update on Resolution of Rule 12(b)(6) Motions Granted with Leave to Amend: Report to the Judicial Conference Advisory Committee on Civil Rules (2011); William H. J. Hubbard, Testing for Change in Procedural Standards, with Application to Bell Atlantic v. Twombly, 42 J. Legal Stud. 35 (2013); Patricia Hatamyar Moore, An Updated Quantitative Study of Iqbal’s Impact on 12(b)(6) Motions, 46 U. Rich. L. Rev. 603 (2012); Alexander A. Reinert, Measuring the Impact of Plausibility Pleading, 101 Va. L. Rev. 2117 (2015); David Freeman Engstrom, The Twiqbal Puzzle and Empirical Study of Civil Procedure, 65 Stan. L. Rev. 1203 (2013).

     [10]. In favor of repeal, see, for example, Notice Pleading Restoration Act of 2009, S. 1504, 111th Cong. § 2 (2009), which proposed rolling the pleading standard back to notice pleading, and Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. § 2 (2009), which proposed the same. In favor of reform, whether Rule-based, statutory, or doctrinal, see, for example, Suzette M. Malveaux, Front Loading and Heavy Lifting: How Pre-Dismissal Discovery Can Address the Detrimental Effect of Iqbal on Civil Rights Cases, 14 Lewis & Clark L. Rev. 65, 69 (2010) (arguing that courts may and should use “pre-merits discovery at the pleading stage”). See also, e.g., Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 Iowa L. Rev. 821, 852–59 (2010) (supporting various potential amendments to the Rules, or Congressional action); Alex Reinert, Pleading as Information-Forcing, 75 Law & Contemp. Probs. 1, 33–35 (2012) (arguing that “heightened pleading under Twombly and Iqbal” might “be limited to circumstances in which plaintiffs are at an informational advantage and where there is a good reason to require disclosure of that information at the pleading stage”).

     [11]. Shirin Sinnar, The Lost Story of Iqbal, 105 Geo. L.J. 379, 379 (2017) (“reconstruct[ing] the facts of Iqbal’s immigrant life, his arrest and detention in the wake of the September 11 attacks, and the enduring consequences of being labeled a suspected terrorist” and investigating “the profound questions of race, law, and security” that persist in its wake).

     [12]. 355 U.S. 41, 45–46 (1957).

     [13]. Malveaux, supra note 10, at 69.

     [14]. Scott Dodson, New Pleading, New Discovery, 109 Mich. L. Rev. 53, 72 (2010); Scott Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors? 196–209 (2013). Much of Dodson’s discussion is about the idea of using pre-suit discovery with post-filing/pre-dismissal discovery serving as a reasonably close substitute; for a discussion of the role of pre-suit discovery in the states and how the device might blunt the effects of the plausibility standard, see Scott Dodson, Federal Pleading and State Presuit Discovery, 14 Lewis & Clark L. Rev. 43, 45–46 (2010).

     [15]. Edward A. Hartnett, Taming Twombly, Even After Iqbal, 158 U. Pa. L. Rev. 473, 509 (2010).

     [16]. Dodson, New Pleading, New Discovery, supra note 14, at 55.

     [17]. Malveaux, supra note 10, at 108 (“Courts should consider narrow, targeted plausibility discovery at the pleadings stage to insure [sic] that the trans-substantive application of the Rules does not work an injustice against those cases involving informational inequities.”).

     [18]. Malveaux, supra note 10, at 129 (citing Kregler v. City of New York, 608 F. Supp. 2d 465, 475–77 (S.D.N.Y. 2009) (decided before the Supreme Court’s Iqbal decision), aff’d, 375 F. App’x 143 (2d Cir. 2010)); Edward A. Hartnett, Taming Twombly: An Update After Matrixx, 75 Law & Contemp. Probs. 37, 49 n.57 (2012) (citing two 2011 cases from the District of Connecticut and the Eastern District of Arkansas). See also Justice Stevens’s Twombly dissent, which detailed the many case management tools that district court judges might use to cabin the risk of “sprawling, costly, and hugely time-consuming discovery” that worried the majority. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 593 n.13 (2007) (Stevens, J., dissenting).

     [19]. The two cases I have in mind did not use the term “plausibility discovery,” but both squarely addressed the issue of its allowability. See Mujica v. AirScan Inc., 771 F.3d 580, 593 n.7 (9th Cir. 2014) (calling it “simply incompatible with Iqbal and Twombly” for a court “to permit discovery whenever a plaintiff has failed to satisfy Rule 8’s plausibility standard”); Carter v. DeKalb Cnty., 521 F. App’x 725, 728 (11th Cir. 2013) (concluding that under Iqbal, “discovery follows the filing of a well-pleaded complaint” (citation omitted)). For further discussion, see Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?, supra note 14, at 176, 176 n.781 (citing a number of appellate and district court cases from 2008 and 2009 in support of the proposition that lower courts have adopted the approach of staying discovery pending resolution of motions to dismiss on plausibility grounds).

     [20]. Cf. 15 U.S.C. § 77z-1(b) (Private Securities Litigation Reform Act of 1995’s automatic stay).

     [21]. Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”). To be sure, this statement could be regarded as dicta, given that other aspects of the Federal Rules are consistent with allowing warranted pre-merits discovery.

     [22]. I searched for this phrase on March 18, 2026, separately among all U.S. District Court cases and all U.S. Court of Appeals cases. Westlaw, “plausibility discovery”, 14 results (Mar. 18, 2026) (on file with California Law Review) (filtered by “Fed. Dist.”, “Cases”); Westlaw, “plausibility discovery”, 0 results (Mar. 18, 2026) (on file with California Law Review) (filtered by “Fed. Ct. App.”, “Cases”). By way of comparison, there are many uses of other types of pre-merits discovery: Searching district court cases on Westlaw, “class discovery” returned 2,945 hits, and “jurisdictional discovery” returned over 10,000. Westlaw, “class discovery”, 2,945 results (Mar. 18, 2026) (on file with the California Law Review) (filtered by “All Federal”, “Cases”); Westlaw, “jurisdictional discovery”, 10,000 results (Mar. 18, 2026) (on file with the California Law Review) (filtered by “All Federal”, “Cases”). Of the fourteen district court cases that did use the term, seven denied it or otherwise described it as generally unavailable: Persian Gulf Inc. v. BP West Coast Products LLC, 225 F. Supp. 3d 1178, 1180 (S.D. Cal. 2016); In re German Automotive Manufacturers Antitrust Litigation, 335 F.R.D. 407, 409 (N.D. Cal. 2020); Merritt v. Redwood Investments, LLC, No. 18-cv-01793-JLS, 2019 WL 4416130, at 4 (S.D. Cal. Sep. 13, 2019); London v. Heh, No. 22-cv-00491-DKW-KJM, 2024 WL 1331949, at 7 n.10 (D. Haw. Mar. 27, 2024); Bratton v. Town of Fortville, No. 09-cv-1391-SEB-JMS, 2010 WL 2291853, at 3 n.3 (S.D. Ind. June 2, 2010); Monterey Bay Military Housing, LLC v. Ambac Assurance Corp., No. 17-cv-04992, 2018 WL 11405618, at 3 (N.D. Cal. Oct. 9, 2018); Hu Honua Bioenergy, LLC v. Hawaiian Electric Industries, Inc., No. 16-00634 JMS-KJM, 2017 WL 11139576, at 3 (D. Haw. July 6, 2017); Phillips v. Cobham Advanced Electronic Solutions, Inc., No. 23-CV-03785-EKL, 2025 WL 4481078, at 3 (N.D. Cal. Mar. 21, 2025); Museum of Handcar Technology LLC v. Transportation Agency for Monterey County, No. 24-CV-08598-EKL, 2025 WL 4481075, at 4 (N.D. Cal. May 6, 2025); Jane Doe ex rel. Janie Doe, Minor Child v. Deer Park Independent School District, No. 25-CV-2778, 2025 WL 4353685, at 6 (S.D. Tex. Nov. 12, 2025), report and recommendation adopted sub nom, Doe v. Deer Park Independent School District, No. 25-CV-02778, 2026 WL 489826 (S.D. Tex. Feb. 20, 2026); Crema Social, Inc. v. Apple Inc., No. 25-CV-08905-EKL, 2026 WL 686311, at 8 (N.D. Cal. Mar. 11, 2026); and Freeland v. Nippon Steel Corp., No. 25-CV-01240-EKL, 2026 WL 747417, at 7 (N.D. Cal. Mar. 17, 2026). All of these decisions except Bratton and Jane Doe were in district courts located in the Ninth Circuit (Bratton was in the Southern District of Indiana; Jane Doe was in the Southern District of Texas). One case that used the phrase, Zhang v. Emory University, No. 21-cv-868, 2023 WL 4750188, at 1–2 (N.D. Ga. June 16, 2023), aff’d, No. 23-12365, 2025 WL 1482873 (11th Cir. 2025), referenced a previous order allowing at least some plausibility discovery. A case from the Southern District of New York, Etheridge v. AlliedBarton Security Services, LLC, No. 12 Civ. 05057(PAC)(GWG), 2013 WL 1832141, at 1 (S.D.N.Y. May 1, 2013), mentioned the term without rejecting plausibility discovery as a category or allowing it in the case at bar.

     [23]. Malveaux, supra note 10, at 129 (citing Kregler, 608 F. Supp. 2d at 475–77 (decided before the Supreme Court’s Iqbal decision)); Hartnett, supra note 18, at 49 n.57 (citing two 2011 cases from the District of Connecticut and the Eastern District of Arkansas).

     [24]. For example, Hartnett suggests an amendment to Rule 12 with significant similarity to my proposal. Edward A. Hartnett, Responding to Twombly and Iqbal: Where Do We Go from Here?, 95 Iowa L. Rev. Bull. 24, 33–34. Dodson also discusses the possibility of amendment in detail alongside reasons to believe amendment by the then-constituted rules committees was unlikely. Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?, supra note 14, at 168–71.

     [25]. See the discussion at the end of Part III below.

     [26]. See Palin v. N.Y. Times Co. (Palin I), 264 F. Supp. 3d 527, 530 (S.D.N.Y. 2017), vacated, 940 F.3d 804 (2d Cir. 2019).

     [27]. See id. at 529–32.

     [28]. Cf. Fed. R. Civ. P. 1. (“These rules . . . should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”).

     [29]. Palin I directly demonstrates how plausibility discovery could work in one context, so it usefully illustrates proposed Rule 12(k). Its relationship to Rule 12(j) is at most implicit, because the defendant New York Times was not required to admit or deny allegations it argued should be treated as conclusory or implausible. However, as I discuss in Part III, events in Palin I made clear that The New York Times would have been able to deny key allegations pursuant to Rule 12(j) had it been required to do so.

     [30]. Gelbach, Material Facts in the Debate over Twombly and Iqbal, supra note 9, at 381.

     [31]. In making this point, I do not mean to take a position as to the actual facts about how common frivolous lawsuits are or the resources spent avoiding them. My point is simply one about incentives and predictable responses to them.

     [32]. In Part B below, I discuss William Hubbard’s argument that plaintiffs’ incentives to plead in detail actually do not depend on the pleading standard at all.

     [33]. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

     [34]. By contrast, a dismissal for failure to state a claim due to, say, the fact that the statute of limitations had run does bear directly on the merits and also saves resources by terminating litigation early where it should end in only one way.

     [35]. For example, in Branham v. Dolgencorp, Inc., No. 09-CV-00037, 2009 WL 2604447, at *1 (W.D. Va. Aug. 24, 2009), a defendant in a simple slip-and-fall-in-a-store Virginia state court case removed to federal court and secured an initial dismissal because the plaintiff’s short state court complaint had not provided Dickensian detail. See Dolgencorp, Inc.’s Memorandum Supporting its Motion to Dismiss Holly Branham’s Complaint at 5, Branham v. Dolgencorp, Inc., No. 09-CV-00037, 2009 WL 5211511 (W.D. Va. June 30, 2009) (“Nowhere does Branham allege how she purportedly slipped and fell while at Dolgencorp’s premises – she alleges only that she slipped and fell, and that Dolgencorp acted negligently by not removing some unknown liquid from the floor and/or by not warning of that unknown liquid.”).

              The plaintiff filed an amended complaint setting forth various factual details—she went to the Dollar General store at issue to buy clothespins, the liquid on the store’s floor was water, etc. Amended Complaint at 1, Branham v. Dolgencorp, Inc., No. 09-CV-00037, 2009 WL 5211509 (W.D. Va. Nov. 9, 2009). The case then went to discovery and ultimately it was either settled or dismissed by agreement of the parties. Branham, 2009 WL 2604447 (listing docket entry number 47, entered on February 8, 2010, as a stipulation and order of dismissal). Thus, in Branham the plausibility standard enabled the consumption of a lot of party and judicial resources to formalize the pleading of facts that undoubtedly would otherwise have come out in discovery and presumably were sufficient to get to a jury.

     [36]. See, e.g., Reinert, supra note 10, at 3 (discussing the challenging role of information asymmetry when the defendant’s state of mind is at issue).

     [37]. William H.J. Hubbard, A Fresh Look at Plausibility Pleading, 83 U. Chi. L. Rev. 693 (2016).

     [38]. Id. at 740–41. Rule 11(b) includes an overlapping requirement:

By presenting to the court a pleading, . . . an attorney . . . certifies that to the best of the [attorney]’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . (2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law . . . .

Fed. R. Civ. P. 11(b) (emphasis added). And of course, Hubbard is hardly the only observer to point out that plaintiffs have incentives to plead in detail to demonstrate their cases are meritorious. See, e.g., Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?, supra note 14, at 133 (observing that plaintiffs have incentives to plead in detail to demonstrate that their cases are meritorious).

     [39]. Hubbard, supra note 37, at 710. The fact that plaintiffs’ attorneys take many cases on a contingency-fee basis strengthens this effect: Attorneys who bear the risks of early dismissal will be willing to invest significant efforts to avoid that result.

     [40]. See, e.g., 42 U.S.C. § 1988.

     [41]. Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009).

     [42]. Hubbard dismisses examples like this one as a question-beg:

This scenario begs the question of how it is that the plaintiff has formed her belief in the merits of her grievance. This belief must come from something that the plaintiff, or someone known to the plaintiff, saw, heard, or experienced—in other words, it must come from facts. If so, then all the plaintiff needs to do is plead those facts that led her to conclude that her claim was meritorious. The only paradox here is why someone with no facts indicating that she has a claim would nonetheless believe that she has a claim.

Hubbard, supra note 37, at 715–16. What squares the circle here is that courts deploying the plausibility standard do not credit all facts that lead plaintiffs to believe they have meritorious claims. Judges’ “experience and common sense,” to use Iqbal’s operative standard, 556 U.S. at 679, sometimes will lead them to quite different—and inaccurate—inferences about which allegations may be ignored because they are deemed conclusory, as well as about what inferences are plausible given those allegations, see Dorf, supra note 3, at 227 (discussing the broad factual background against which Iqbal was decided); id. (“Human beings, including Supreme Court Justices, are prone to view facts as conforming to pre-existing stock scripts or narratives.”).

     [43]. The example also shows why shifting from Conley to the plausibility standard can be expected to cause plaintiff selection—the selection of cases out of being filed in the first place. For more on plaintiff selection, see, for example, Gelbach, supra note 5, at 2276.

     [44]. The Twombly dissent archly addressed this issue: “The Court worries that a defendant seeking to respond to [a] ‘conclusory’ allegation ‘would have little idea where to begin.’ A defendant could, of course, begin by either denying or admitting the charge.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 593 n.12 (2007) (Stevens, J., dissenting) (citation omitted).

     [45]. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

     [46]. Malveaux, supra note 10, at 69.

     [47]. Id. at 108.

     [48]. Id. at 124.

     [49]. See, e.g., id. at 137 (discussing Kregler v. City of New York, 608 F. Supp. 2d 465, 475 (S.D.N.Y. 2009), aff’d, 375 F. App’x 143 (2d Cir. 2010)).

     [50]. Failure to respond with candor is, of course, subject to Rule 11 like any other such failure. See Fed. R. Civ. P. 11(b) (stating that presenting papers to the court entails a “certifi[cation] that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances: . . . (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information”).

     [51]. Fed. R. Civ. P. 26(b)(1). Proportionality itself is assessed with respect to six largely qualitative criteria described in this Rule. See id. (requiring the court to “consider[] the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit”). For extended discussion of these criteria, see generally Jonah B. Gelbach & Bruce H. Kobayashi, The Law and Economics of Proportionality in Discovery, 50 Ga. L. Rev. 1093 (2016).

     [52]. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559 (2007) (“It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through ‘careful case management,’ . . . given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side.” (citing Frank H. Easterbrook, Discovery as Abuse, 69 B.U. L. Rev. 635, 638 (1989) (“Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves.”))).

     [53]. But if the court determines that “no reasonably available discovery would satisfy” the requirements for plausibility discovery just described, it may deny the discovery without denying the defendant’s motion. Infra Appendix (proposed Rule 12(k)(1)(D)(ii)).

     [54]. The text also ensures that if the district court denies the plaintiff’s request for special discovery related to plausibility, the plaintiff retains the ability to file an amended pleading. Infra app. (proposed Rule 12(k)(3)). In other words, the time taken to adjudicate the request for special discovery doesn’t count against the plaintiff’s time to amend. Id.

     [55]. For example, as Malveaux pointed out

[t]he pre-dismissal plausibility discovery contemplated here furthers, rather than contravenes, the Supreme Court’s goal of prohibiting defendants from being forced to engage in burdensome discovery and expending significant time, resources, and attention on meritless litigation. By permitting the parties plausibility discovery, district courts can more easily resolve those cases that are close calls—resulting in early dismissals that protect defendants from burdensome merits discovery where appropriate. This approach benefits defendants as well as plaintiffs.

Malveaux, supra note 10, at 129.

     [56]. In asymmetric information cases, “plaintiffs’ shortfall does not arise from any ethical or professional flaw on their part” because even “a Rule 11(b)(3) ‘inquiry reasonable under the circumstances’ may produce a complaint lacking in facts sufficient to overcome the plausibility standard.” Id. at 130 (quoting Fed. R. Civ. P. 11(b)).

     [57]. Twombly, 550 U.S. at 560 n.6 (quoting Easterbrook, supra note 52, at 638–39).

     [58]. Palin I, 264 F. Supp. 3d 527, 531 (S.D.N.Y. 2017), vacated, 940 F.3d 804 (2d Cir. 2019); Tom Zoellner, How Arizona’s Culture Helped Shape the Shooting of Gabrielle Giffords, High Country News (Feb. 27, 2012), https://www.hcn.org/issues/44-3/how-arizonas-culture-helped-shape-the-shooting-of-gabrielle-giffords/ [https://perma.cc/VN9W-TQCJ] (describing the “strip mall[]” where Loughner’s shooting occurred).

     [59]. Palin I, 264 F. Supp. 3d at 531; Gina Shaw, Aphasia Won’t Stop Gabby Giffords from Speaking Out, Brain & Life (Oct./Nov. 2022), https://www.brainandlife.org/articles/gabby-giffords-doesnt-let-aphasia-stop-her [https://perma.cc/6LDN-J3TK].

[60].   Who is Sarah Palin?, PBS Newshour Classroom, https://www.pbs.org/newshour/classroom/daily-videos/2023/08/who-is-sarah-palin [https://perma.cc/HZ32-4GNH].

     [61]. Palin I, 264 F. Supp. 3d at 531.

     [62]. Id.

     [63]. Id.

     [64]. Id. at 530; Gunman Shoots Four People, Including GOP Congressman, at Baseball Practice, Hist. (Sept. 7, 2018), https://www.history.com/this-day-in-history/june-14/james-hodgkinson-shooting-republicans-baseball-game [https://perma.cc/GR3V-F56M].

     [65]. Palin I, 264 F. Supp. 3d at 530–32.

     [66]. Id. at 531–32.

     [67]. Id. at 532.

     [68]. Id.

     [69]. See id.

     [70]. Id. at 527, 532–33.

     [71]. Palin v. N.Y. Times Co. (Palin III), 940 F.3d 804, 809 (2d Cir. 2019) (quoting Church of Scientology Int’l v. Behar, 238 F.3d 168, 173–74 (2d Cir. 2001) (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 280 (1964))), vacating 264 F. Supp. 3d 527 (S.D.N.Y. 2017).

     [72]. See Biro v. Condé Nast, 807 F.3d 541, 544–45 (2d Cir. 2015) (relying on Iqbal to reject a plaintiff’s argument that the plausibility standard should not apply to allegations of actual malice due to Rule 9(b)’s language allowing states of mind to be alleged generally).

     [73]. See Defendant’s Memorandum of Law in Support of Its Motion to Dismiss the Complaint at 12–14, Palin I, 264 F. Supp. 3d 527 (S.D.N.Y 2017) (No. 17-cv-4853), Dkt. No. 25 [hereinafter Times MTD].

     [74]. Id. at 13.

     [75]. Id. (citing Complaint ¶¶ 42, 46, 52–55, Palin I, 264 F. Supp. 3d 527 (S.D.N.Y. 2017) (No. 17-cv-4853), Dkt. No. 1).

     [76]. Id. (citing Complaint, supra note 75, at ¶¶ 42, 46, 52–55).

     [77]. Id.

     [78]. Id. (citing N.Y. Times Co. v. Sullivan, 376 U.S. 254, 287 (1964); Dongguk Univ. v. Yale Univ., 734 F.3d 113, 123–24 (2d Cir. 2013)).

     [79]. Id. at 13–14.

     [80]. Id. at 15 (quoting Dongguk, 734 F.3d at 124).

     [81]. See Complaint, supra note 75, ¶¶ 41–47.

     [82]. See Palin I, 264 F. Supp. 3d. 527, 530 (S.D.N.Y. 2017) (“[T]he editorial in question was signed by ‘The Editorial Board’ of the Times.”), vacated, 940 F.3d 804 (2d Cir. 2019).

     [83]. Times MTD, supra note 73, at 15.

     [84]. Order at 1, Palin I, 264 F. Supp. 3d 527 (S.D.N.Y. 2017) (No. 17-cv-4853), Dkt. No. 35.

     [85]. Id.

     [86]. Id.

     [87]. Id.

     [88]. Palin III, 940 F.3d 804, 809 (2d Cir. 2019).

     [89]. Id. at 813.

     [90]. Order, supra note 84, at 2. This avant-garde aspect of Judge Rakoff’s case management garnered substantial public attention at the time. See generally, e.g., Sydney Ember, New York Times Editorial Writer Must Testify in Sarah Palin Lawsuit, N.Y. Times (Aug. 10, 2017), https://www.nytimes.com/2017/08/10/business/media/sarah-palin-new-york-times-defamation-lawsuit.html [https://perma.cc/3MMF-2L97].

              After the Second Circuit vacated his judgment (see below for discussion), Palin III, 940 F.3d at 817, Judge Rakoff took a subsequent misstep by announcing in open court, while the jury was deliberating, that he intended to grant the defendant’s Rule 50 motion for judgment as a matter of law. See Order at 1–2, Palin v. N.Y. Times Co. (Palin IV), 588 F. Supp. 3d 375 (S.D.N.Y. 2022) (No. 17-cv-4853), vacated, 113 F.4th 245 (2d Cir. 2024), Dkt. No. 172. Some jurors became aware of this determination due to media push notifications received by their phones. Id. at 1. These facts surfaced after the jury delivered its verdict for the Times. Id.

              For this reason and others, the Second Circuit later ordered a new trial, Palin v. N. Y. Times Co. (Palin V), 113 F.4th 245, 255 (2d Cir. 2024), vacating, 588 F. Supp. 3d 375 (S.D.N.Y. 2022)—which also ended with a verdict for the Times, Verdict at 1, Palin v. N. Y. Times Co. (Palin VI), No. 17-cv-4853, 2025 WL 3625632 (S.D.N.Y. Dec. 15, 2025), appeal docketed, No. 25-1375 (2d Cir. Dec. 16, 2025), Dkt. No. 241. As of this writing, the judgment following that verdict remains under appeal at the Second Circuit.

              In sum, Palin’s one-count complaint has been dismissed, then resuscitated by the Second Circuit, then the subject of a trial whose verdict for the Times was vacated, and then the subject of a second trial whose verdict for the Times is currently on appeal.

     [91]. Palin III, 940 F.3d at 809.

     [92]. Id.

     [93]. Palin I, 264 F. Supp. 3d 527, 529–30, 540 (S.D.N.Y. 2017), vacated, 940 F.3d 804 (2d Cir. 2019).

     [94]. Id. at 530.

     [95]. See id. at 536.

     [96]. See id. at 536–37.

     [97]. Id. at 537. In vacating Judge Rakoff’s judgment, the Second Circuit would later comment: “It is not the district court’s province to dismiss a plausible complaint because it is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation.” Palin III, 940 F.3d at 815 (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). The Second Circuit cited Iqbal’s statement that “[t]he plausibility standard is not akin to a probability requirement.” Id. at 815 n.38 (quoting 556 U.S. at 678). But the Second Circuit could say that only by ignoring that Iqbal itself engaged in just the sort of comparative assessment Judge Rakoff did. See Iqbal, 556 U.S. at 681 (“Taken as true, [the complaint’s] allegations are consistent with petitioners’ purposefully designating detainees ‘of high interest’ because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.” (emphasis added)); see also id. at 682 (determining that “discrimination is not a plausible conclusion” about post-9/11 arrests given the “‘obvious alternative explanation’” of nondiscriminatory intent (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 567 (2007))).

     [98]. Palin I, 264 F. Supp. 3d at 537–38 (citing 376 U.S. 254 (1964)).

     [99]. See Declaration of Shane B. Vogt, Exhibit A, at 1, Palin II, No. 17-cv-4853, 2017 WL 5514371 (S.D.N.Y. 2017), vacated, 940 F.3d 804 (2d Cir. 2019), Dkt. No. 54.

   [100]. Palin II, 2017 WL 5514371, at *2–3.

   [101]. Palin III, 940 F.3d at 810. At least one other district court in the Southern District of New York has employed a similar hearing for purposes of determining plausibility-related issues, but that court located its authority in Rule 12(i) rather than Rule 43(c). See Kregler v. City of New York, 608 F. Supp. 2d 465, 475 (S.D.N.Y. 2009), aff’d, 375 F. App’x 143 (2d Cir. 2010); see also Malveaux, supra note 10, at 137 (discussing the use of the hearing in Kregler as a type of plausibility discovery).

   [102]. Palin III, 940 F.3d at 810–11 (quoting Fed. R. Civ. P. 12(d)).

   [103]. Id. at 810–12.

   [104]. Id. at 812. But see Palin I, 264 F. Supp. 3d 527, 530 n.1 (S.D.N.Y. 2017) (stating that in its dismissal of the complaint, “the Court . . . ma[de] no credibility determinations” as to “any disputed fact,” implicitly rejecting the Second Circuit’s assertion to the contrary), vacated, 940 F.3d 804 (2d Cir. 2019). This aspect of Palin highlights an ironic privileging of speculation over information. At the pleading stage, Twombly and Iqbal allow judges to dismiss a claim on the basis of judicial speculation as to factual matters. Yet for judges to decide the same question on the basis of actual evidence coming from outside the pleadings, Rule 12 requires them to apply the summary judgment standard. See Fed. R. Civ. P. 12(d) (“If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.”). Remarkably, then, Twombly and Iqbal created a system in which the summary judgment standard can be more forgiving to plaintiffs than the pleading standard—a characterization that had been risible before Twombly and Iqbal were decided.

   [105]. Palin III, 940 F.3d at 813–15.

   [106]. Id.

   [107]. Id. at 817.

   [108]. See Times MTD, supra note 73, at 15.

   [109]. See id.

   [110]. Order, supra note 84, at 1.

   [111]. Id. at 2.

   [112]. See Palin III, 940 F.3d 804, 813–15 (2d Cir. 2019).

   [113]. See Order, supra note 90, at 1; Verdict, supra note 90, at 1.

   [114]. Palin III, 940 F.3d at 813–15.

   [115]. 71 F.4th 511, 517–18 (6th Cir. 2023) (affirming multiple bases for sanctions for failure to plead plausibly and reversing as to others).

   [116]. Mission, Am. First Legal Found., https://aflegal.org/mission/ [https://perma.cc/NGJ6-9XKP].

   [117]. Leadership, Am. First Legal Found., https://aflegal.org/leadership/ [https://perma.cc/78CD-D5F4].

   [118]. America First Legal Litigation, Am. First Legal Found., https://aflegal.org/litigation/ [https://perma.cc/QPA2-ZLZM].

   [119]. See, e.g., Texas, et al. v. Biden, et al., Am. First Legal Found., https://aflegal.org/litigation/texas-et-al-v-biden-et-al/ [https://perma.cc/VCG3-MPJ2] (describing AFL’s role in suing the Biden Administration over a program AFL describes as “created . . . to allow illegal aliens from El Salvador, Guatemala, and Honduras to petition the federal government to bring their minor children, and in some cases, a parent, legal guardian, or primary caregiver, into the United States”).

   [120]. Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007).

   [121]. Ashcroft v. Iqbal, 556 U.S. 662 (2009).

   [122]. The Rules already contain a provision that addresses such a situation—the motion for a more definite statement. See Fed. R. Civ. P. 12(e) (“A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response.”). After Twombly and Iqbal, there is little reason to move under Rule 12(e), given that the post-Iqbal Rule 12(b)(6) may be expected to secure a dismissal when a Rule 12(e) motion would achieve only a modified complaint.

   [123]. See Fed. R. Civ. P. 1 (“These rules . . . should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”).

   [124]. The Supreme Court’s Twombly opinion quoted the operative complaint’s allegation that, in describing competition against other telecom carriers, Mr. Notebaert had said that doing so “might be a good way to turn a quick dollar but that doesn’t make it right.” 550 U.S. at 551 (quoting Consolidated Amended Class Action Complaint ¶ 42, Twombly v. Bell Atl. Corp., 313 F. Supp. 2d 174 (S.D.N.Y. 2003) (No. 02 Civ. 10220 (GEL))). Writing in dissent, Justice Stevens suggested that the plaintiff should have been able to take discovery from Notebaert in the form of a “sworn deposition[] or other limited discovery,” id. at 572 (Stevens, J., dissenting), as proposed Rule 12(k) would facilitate.

   [125]. For similar discussion of how management of discovery could have worked in Twombly even after the motion to dismiss stage (i.e., in the context of conventional discovery), see Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?, supra note 14, at 161–62.

   [126]. See Fed. R. Civ. P. 26(b)(1).

   [127]. See Dodson, New Pleading in the Twenty-First Century: Slamming the Federal Courthouse Doors?, supra note 14, at 162–64 (discussing this issue).

   [128]. This list is not exhaustive. See id. (presenting additional suggestions).

   [129]. See Ashcroft v. Iqbal, 556 U.S. 662, 685 (2009).

   [130]. I note that on remand after the Supreme Court decision in his case, Mr. Iqbal ultimately settled with the U.S. Government. Sinnar, supra note 11, at 408. He agreed to dismiss all his claims—including those against Ashcroft and Mueller, who were still in the case because the claims against them were dismissed with leave to amend—in return for $265,000. Id.

   [131]. 556 U.S. at 679.

   [132]. Cf. Easterbrook, supra note 52, at 638–39 (lamenting that “the timing is all wrong” under the current regime of discovery sequencing).