Cecil (FJC) et al., Motions to Dismiss for Failure to State a Claim after Iqbal: Report to the Judicial Conference Advisory Committee on Civil Rules:
This report presents the findings of a Federal Judicial Center study on the filing and resolution of motions to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. The study was requested by the Judicial Conference Advisory Committee on Civil Rules. The study compared motion activity in 23 federal district courts in 2006 and 2010 and included an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.
After excluding cases filed by prisoners and pro se parties, and after controlling for differences in motion activity across federal district courts and across types of cases and for the presence of an amended complaint, we found the following: There was a general increase from 2006 to 2010 in the rate of filing of motions to dismiss for failure to state a claim (see infra section III.A); In general, there was no increase in the rate of grants of motions to dismiss without leave to amend. There was, in particular, no increase in the rate of grants of motions to dismiss without leave to amend in civil rights cases and employment discrimination cases (see infra section III.B.1); Only in cases challenging mortgage loans on both federal and state law grounds did we find an increase in the rate of grants of motions to dismiss without leave to amend. Many of these cases were removed from state to federal court. This category of cases tripled in number during the relevant period in response to events in the housing market (see infra section III.B.1). There is no reason to believe that the rate of dismissals without leave to amend would have been lower in 2006 had such cases existed then; There was no increase from 2006 to 2010 in the rate at which a grant of a motion to dismiss terminated the case (see infra section III.B.1).
Of course, there could be hidden effects that the study is not picking up. Some judges are going to be resistant to Twombly and Iqbal; others were already applying a heightened standard of review of complaints before Twombly (recall that Twombly itself involved an appeal to the Second Circuit from a plaintiff who had had his complaint dismissed). And the mix of cases that are going to be brought post-Twombly are different. We will still see cases dismissed because of lawyers pushing the envelope and failing to create new law. But, after Twombly, the hypothetical 100-page complaint alleging wildly implausible conspiracies is much more likely to be filed by a deranged pro se than a lawyer who cares about adhering to ethical standards. Meritless implausible complaints that would have been filed in 2005 are less likely to be filed in 2011, but it's hard to say that that is a bad thing.