Rule 15: A Limited Safety Net for 12(b)(6) Dismissal After Iqbal

Thomas A. Reuland ABSTRACT: The Supreme Courts recent decision in Ashcroft v. Iqbal increases the likelihood that a judge will dismiss a case for failure to state a claim. This Note presents a motion strategy to avoid final dismissal. As a foundation for this strategy, this Note argues that Federal Rules of Civil Procedure 8 and 15, especially after recent changes to both rules, diverge: Iqbal discourages litigation by effectively raising the federal pleading standard of Rule 8, yet Rule 15 encourages litigation by liberally allowing a party to amend pleadings. This Note further argues that Iqbals changes to Rule 8 actually enhance Rule 15s ability to provide litigants with a method to challenge dismissal and maintain access to the courts. In other words, Iqbals aim of restricting litigation actually encourages it. At the same time, however, Iqbal has increased the time and cost associated with bringing a claim in federal court. This effect privileges wealthy litigants and is inconsistent with the historical spirit of federal procedure. I. INTRODUCTION .................................................................................... 1405 II. BACKGROUND ...................................................................................... 1407 A. THE FEDERAL PLEADING STANDARD IS IN FLUX................................ 1407 B. RECENT DEVELOPMENTS IN RULE 15............................................... 1413 1. Amending as a Matter of Course ........................................ 1413 2. Amending with Leave of the Court..................................... 1415 C. CIRCUIT COURTS DISAGREE ABOUT AMENDING A COMPLAINT AFTER 12(B)(6) DISMISSAL ............................................................. 1417 1. Amending After the Rule 15 Revisions .............................. 1417 2. Rule 15s Recent Changes Do Not Resolve the Circuit Split ....................................................................................... 1419 3. The Most Restrictive Mandate to Courts: Give Leave or Give a Good Reason for Denying Leave ............................. 1421

J.D. Candidate, The University of Iowa College of Law, 2011; B.A., Brown University, 2005. I am indebted to the College of Law faculty, the members of the Iowa Law Review, and other colleagues for their input and guidance.

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III. AMENDING A PLEADING AFTER 12(B)(6) DISMISSAL ........................... 1422 A. COURTS LIBERALLY GRANT LEAVE TO AMEND WHEN 12(B)(6) MOTIONS ARE INVOLVED ................................................................ 1422 B. REASONS TO DENY LEAVE ............................................................... 1423 C. A MOTION STRATEGY THAT HARNESSES RULE 15 AND IQBAL .......... 1425 IV. CONCLUSION ....................................................................................... 1426

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This Note explores the outer limits of two Federal Rules of Civil Procedure that control access to the courtsRules 8 and 15.1 Rule 8 requires a pleading to contain a short and plain statement that gives the opposing party notice of the pleaders claim.2 Rule 15 states that courts should freely give leave to amend complaints.3 In enacting these rules, the drafters hoped to equip judges with a liberal standard for assessing claims a standard that does not bar access to justice.4 However, in 2009, the Supreme Court tightened this liberal standard.5 In Ashcroft v. Iqbal, the Court unapologetically confirmed its desire to rein in the outer limits of Rule 8.6 As a consequence of this decision, a description of the federal pleading standard is no longer short and plain; instead, it is laden with buzzwords to which trial and appellate courts must assign meaning.7 In the wake of the Courts decision in Iqbal, a flood of criticism has examined Iqbals impact on ethical, procedural, and economic issues.8
1. FED. R. CIV. P. 8, 15. This Note refers to the Federal Rules of Civil Procedure as the Federal Rules or Rules and individual parts of the Rules as Rule followed by the number (e.g., Rule 8) unless noted otherwise. 2. Id. 8. As of the latest printing, Rule 8(a) states: (a) CLAIM FOR RELIEF. A pleading that states a claim for relief must contain: (1) a short and plain statement of the grounds for the courts jurisdiction ...; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought . . . . Id. 8(a). 3. Id. 15(a)(2). 4. See Colleen McMahon, The Law of Unintended Consequences: Shockwaves in the Lower Courts After Bell Atlantic Corp. v. Twombly, 41 SUFFOLK U. L. REV. 851, 85354 (2008); Michael E. Smith, Judge Charles E. Clark and the Federal Rules of Civil Procedure, 85 YALE L.J. 914, 918, 923 (1976). Moreover, Rule 1 explains the goals and purpose of the Rules: They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding. FED. R. CIV. P. 1. 5. See The Supreme Court, 2006 TermLeading Cases, 121 HARV. L. REV. 305, 30809 (2007) [hereinafter Leading Cases] (explaining that this new change runs counter to the text of the Rules, Supreme Court precedent, and the historical purpose of notice pleading). 6. 129 S. Ct. 1937 (2009). 7. In a public speech, Justice Ginsburg chided these buzzwords that purport to clarify todays pleading standard, concluding: In my view, the Courts majority [in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Iqbal] messed up the Federal Rules. Ruth Bader Ginsburg, Assoc. Justice, Supreme Court of the U.S., Remarks for Second Circuit Judicial Conference (June 12, 2009), available at http://www.supremecourt.gov/publicinfo/speeches/ viewspeeches.aspx?Filename=sp_06-12-09.html. 8. See, e.g., Robert G. Bone, Plausibility Pleading Revisited and Revised: A Comment on Ashcroft v. Iqbal, 85 NOTRE DAME L. REV. 849, 86785 (2010); Arthur R. Miller, From Conley to Twombly to Iqbal: A Double Play on the Federal Rules of Civil Procedure, 60 DUKE L.J. 1 (2010); A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 LEWIS & CLARK L. REV. 185

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This Note contributes to this criticism by isolating Iqbals relationship to a rule that the academic literature rarely addresses but the practicing litigator often usesRule 15. Rule 15 allows a party to amend a pleading, even a pleading that faces dismissal for failure to meet the federal pleading standard described in Rule 8.9 While much of the existing literature discusses the pleading standards general consistency with other rules, this Note focuses on Rules 8 and 15.10 Following this introduction, Part II summarizes the development of the federal pleading standard under Rule 8 and describes recent changes to a partys ability to amend a pleading under Rule 15. As Part II demonstrates, the key language of Rule 8 and Rule 15short and plain and freely given, respectivelyreflects the general unity of the Federal Rules. The more novel revelation of this Note is that a litigant can use Rule 15 to solicit a single courts idiosyncratic perspective on the federal pleading standard. Part III provides the foundation for this conclusion by drawing from the debate among circuit courts over Rule 15 amendments. Compared to Rule 8, Rule 15 is clear and developed even though circuit courts disagree about certain aspects of the rule. A paradox arises out of the gulf between Rule 15s developed jurisprudence and Rule 8s shifting standard: Although the Federal Rules of Civil Procedure share common goals and ideals, a single rule that courts have clearly developed can influence a different rule that might not be as clear. With this paradox in mind, Part III then proposes that rather than allow the restrictions of Rule 8 to upset the liberal standard of Rule 15, parties can instead harness Rule 15 to counterbalance the newly tightened Rule 8, preserve access to the courts, and even reincarnate a claim that a court dismisses under the Iqbal standard. The operation of Rule 15 is not as foggy as that of Rule 8, and applying this liberal rule to pleadings can recapture the dispositions that the federal pleading standard has abandoned since Iqbal reshaped the meaning of Rule 8. This strategy, however, is only a silver lining to a dark cloud. Part IV of this Note considers practical applications of this strategy and concludes with some pessimistic predictions. While the Iqbal standard will not necessarily
(2010); Tony Mauro, Ashcroft Ruling Adds Hurdle for Plaintiffs: U.S. Supreme Court Decision in Iqbal Could Make It Easier for Defendants To Dismiss Civil Complaints, NATL L.J., May 25, 2009, at 11. 9. See FED. R. CIV. P. 8, 12(b)(6), 15. 10. Previous scholarship reveals the modesty of this Notes contribution to the literature. See, e.g., Patricia W. Hatamyar, The Tao of Pleading: Do Twombly and Iqbal Matter Empirically?, 59 AM. U. L. REV. 553 (2010) (evaluating the dismissals before and after Twombly through a multinomial logistic regression on 1039 cases); Miller, supra note 8; Adam N. Steinman, The Pleading Problem, 62 STAN. L. REV. 1293 (2010) (imagining a new type of pleading standard: plain pleading); John P. Sullivan, Twombly and Iqbal: The Latest Retreat from Notice Pleading, 43 SUFFOLK U. L. REV. 1 (2009) (providing both an encyclopedic and critical assessment of federal pleading before and after Iqbal). In fact, this Notes scope does not extend beyond the first two subsections of Rule 15 or consider nonfederal actions.

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bar meritorious claims, the claims will take longer and cost more to litigate. These barriers to the judicial processtime and moneyare most damning to litigants with few resources. Moreover, these shortcomings conflict with the overarching spirit and purpose of the Federal Rules, including Rule 8. The next Part begins by tracing the development of the federal pleading standard and highlighting the most recent developments in the pleading standard and amendment rules. II. BACKGROUND The Federal Rules operate as a cohesive whole to secure the just, speedy, and inexpensive determination of every action and proceeding.11 The plain meaning of Rule 8 advances the overarching goals of the Rules.12 Rule 8 states that pleadings must contain short and plain statements about where a party can sue, why it can sue, and what relief it seeks.13 As one prominent commentator explains, [T]he functioning of all the procedures in the federal rules for . . . discovery, liberal amendment, judicial management, and [others] are intertwined inextricably with the pleading philosophy embodied in Rule 8.14 The Advisory Committee further supports the interconnectedness of the Rules by acknowledging that Rule 8s meaning emerges not only from the rules plain meaning and the related forms, but also from other intermeshing rules.15 However, as this Part demonstrates, recent developments have upset the harmony of the Federal Rules. A. THE FEDERAL PLEADING STANDARD IS IN FLUX Every civil case in federal court begins with a complaint.16 As a type of pleading,17 the complaint must meet the federal pleading standard that Rule 8 describes.18 Moreover, the Federal Rules provide forms that exemplify sufficient pleadings; half of these examples are each four

11. FED. R. CIV. P. 1; see also Kevin M. Clermont & Stephen C. Yeazell, Inventing Tests, Destabilizing Systems, 95 IOWA L. REV. 821 (2010) (explaining the interconnectedness of the Rules). 12. See Smith, supra note 4, at 92223 (discussing the pleading jurisprudence of Charles Clark, one of the principal drafters of the Rules). 13. FED. R. CIV. P. 8(a). 14. 5 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE 1202, at 88 (3d ed. 2004). 15. ADVISORY COMM. ON RULES FOR CIVIL PROCEDURE, REPORT OF PROPOSED AMENDMENTS TO THE RULES OF CIVIL PROCEDURE FOR THE UNITED STATES DISTRICT COURTS 19 (1955), reprinted in 5 WRIGHT & MILLER, supra note 14, 1201, at 86 n.11. 16. FED. R. CIV. P. 3 (A civil action is commenced by filing a complaint with the court.). 17. Id. 7(a)(1). 18. Id. 8(a).

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sentences long.19 If a party fails to follow Rule 8, Rule 12(b)(6) permits the opposing party to file a motion to dismiss the lawsuit for failure to state a claim.20 The central language of Rule 8the plaintiff must file a short and plain statement of the claim showing that the pleader is entitled to relief has remained the same since 1938.21 Courts commonly refer to this federal standard as notice pleading22 because, on a basic level, this standard requires the plaintiff to notify the court and defendant of its claim in simple terms.23 Notice pleading emerged nearly a century ago, after litigants and judges realized that the pleading standard at the time, code pleading, was so cumbersome that it sometimes barred meritorious claims.24 Even though the notice-pleading standard emerged as a means to simplify code pleading,25 from the time of its inception the new standard has sparked debates that are far from short and plain.26 In 1957, the Supreme Court decided a case that became notice pleadings standard-bearer for decades.27 In Conley v. Gibson, the Court

19. Id. FORMS 1112. For example, a negligence claim that arises under a federal question would meet the Rule 8 pleading standard if it includes only these short lines: 1. This action arises under a federal statute, < > U.S.C. < >. 2. On January 1, 2010, in Blackacre, the defendant negligently drove a motor vehicle against the plaintiff. 3. As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $ < >. >, Therefore, the plaintiff demands judgment against the defendant for $ < plus costs. See id. FORM 11. 20. Id. 12(b)(6). 21. Compare FED. R. CIV. P. 8(a)(2) (1938) (current version at FED. R. CIV. P. 8(a)(2)), with FED. R. CIV. P. 8(a)(2). 22. Conley v. Gibson, 355 U.S. 41, 4748 (1957), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007); THOMAS A. MAUET, PRETRIAL 5.2.1, at 118 (7th ed. 2008). 23. Smith, supra note 4, at 923 (describing how the drafters of the Rules insisted on general statements and minimal facts or legal theories); Koan Mercer, Comment, Even in These Days of Notice Pleadings: Factual Pleading Requirements in the Fourth Circuit, 82 N.C. L. REV. 1167, 1171 & n.27 (2004) (describing how the Rules principle [sic] architect, a Yale law-school dean turned circuit judge, both prioritized Rule 8s goal of giving notice and minimized the importance of providing factual support in ones pleading). 24. See Clarke B. Whittier, Notice Pleading, 31 HARV. L. REV. 501, 50102 (1918) (proposing a shift from code pleading to notice pleading). 25. ADVISORY COMM. ON RULES FOR CIVIL PROCEDURE, supra note 15, at 19 (The intent and effect of [Rule 8] is to permit the claim to be stated in general terms . . . .). 26. 5 WRIGHT & MILLER, supra note 14, 1201, at 86 (Although there has been very little actual revision of Rule 8, it has been the focal point of a fair amount of controversy.); see also Paul Stancil, Balancing the Pleading Equation, 61 BAYLOR L. REV. 90, 10914 (2009) (providing a concise history of the federal pleading standard). 27. Muriel Goode-Trufant, Dispositive Motions in Federal Court, in CURRENT DEVELOPMENTS IN FEDERAL CIVIL PRACTICE 2009, at 37, 52 (PLI Litig. & Admin. Practice, Course Handbook

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emphasized the simplicity of notice pleading.28 It instructed judges not to dismiss a pleading unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.29 This no-set-of-facts requirement depicted Rule 8 as a liberal standard.30 The Court adopted this liberal standard in order to minimize gamesmanship31 and inhibit motion strategy as a method for quashing meritorious claims.32 Conleys clarification of notice pleading served as a sound foundation for pleading jurisprudence.33 However, in a dramatic move, the Supreme Court rejected Conleys pleading standard in its 2007 decision Bell Atlantic Corp. v. Twombly.34 The

Ser. No. H-795, 2009) (characterizing the pre-Twombly pleading standard as well settled); Steinman, supra note 10, at 1300. 28. 355 U.S. 41 (1957), abrogated by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). The Court explained: [A]ll the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests. . . . Such simplified notice pleading is made possible by the liberal opportunity for discovery and the other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts and issues. Id. at 4748 (footnote omitted) (quoting FED. R. CIV. P. 8(a)(2)). 29. Id. at 4546 (emphasis added). 30. Id. at 47; Robert G. Bone, Twombly, Pleading Rules, and the Regulation of Court Access, 94 IOWA L. REV. 873, 89293 (2009) (aligning the judicial interpretation of Rule 8 expressed in Conley with a liberal interpretation of the rule). 31. ADVISORY COMM. ON RULES FOR CIVIL PROCEDURE, supra note 15, at 19 ([T]he rules are designed to discourage battles over mere form of statement and to sweep away the needless controversies which the codes permitted that served either to delay trial on the merits or to prevent a party from having a trial because of mistakes in statement.). See generally LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 96 (3d rev. ed. 2005) (discussing how English common-law pleading led to a type of pretrial gamesmanship that distracted from the merits of a claim). 32. Conley, 355 U.S. at 48 (noting that all pleadings shall be so construed as to do substantial justice before concluding that [t]he Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits (quoting FED. R. CIV. P. 8(f) (1957) (current version at FED. R. CIV. P. 8(e))) (internal quotation marks omitted)). The Conley decision was not only an icon of notice pleading but also a critique of code pleadings pitfalls. 33. ROY L. BROOKS, CRITICAL PROCEDURE 8586 (1998). Furthermore, courts could easily reconcile notice pleading with other aspects of the law. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (suggesting that courts must not forget that the limits of notice pleading depend on whether the litigant is pro se: The Court of Appeals departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pronounced in this particular case because petitioner has been proceeding, from the litigations outset, without counsel); Swierkiewicz v. Sorema N. A., 534 U.S. 506, 51011 (2002) (noting that litigants should not confuse evidentiary standards with pleading standards when determining which facts to include in the pleading). 34. 550 U.S. 544, 555 (2007).

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Court claimed that judges and litigants were oversimplifying the federal standard that Rule 8 conveyed.35 Moreover, the Court concluded that Conleys no set of facts language . . . . has earned its retirement.36 Conleys liberal notice pleading was out, and Twombly filled the void with a more restrictive standard that litigants must meet in order to have their day in court.37 In reaching its decision in Twombly, the Court provided a handful of phrases to indicate what this new standard entailed.38 The Court noted that the plaintiffs recovery must be plausible, but not necessarily probable, to survive a motion to dismiss.39 Moreover, [f]actual allegations must be enough to raise a right to relief above the speculative level.40 In a dramatic departure from Conleys beyond doubt language, the Twombly Court further declared that when plaintiffs do not nudge[] their claims across the line from conceivable to plausible, their complaint must be dismissed.41 Twombly shocked the legal community.42 Meeting the federal pleading standard now required something more than the plain statements espoused by Conley and Rule 8s plain language.43 Perhaps in response to the confusion, the Supreme Court did not wait another fifty years as it did between Conley and Twombly to comment on the pleading standard. In early 2009, the Court heard Iqbal. Javaid Iqbal claimed that highranking government officials were personally liable for the conditions of his confinement after the September 11, 2001 terrorist attacks.44 He filed a Bivens claim45a claim intended to hold government officials liable for

35. Id. at 563 (stating that this standard has been puzzling the profession for 50 years). 36. Id. at 56263. 37. A. Benjamin Spencer, Plausibility Pleading, 49 B.C. L. REV. 431, 433 (2008); Douglas E. Motzenbecker, Supreme Court Raises the Pleadings Bar Again, LITIG. NEWS, Winter 2010, at 10, 10. 38. See supra note 7 and accompanying text. 39. Twombly, 550 U.S. at 556. 40. Id. at 555. 41. Id. at 570. 42. See, e.g., Bone, supra note 30, at 880 (Twombly triggered a sharp response from the academic community almost immediately, most of it criticizing the Court for tightening up on pleading requirements.); McMahon, supra note 4, at 858 (The district courts face thousands of Rule 12(b)(6) motions every year, and while I assume the Supreme Court did not intend to throw those courts into disarray with its Twombly decision, that is, in fact, what is happening.); Leading Cases, supra note 5, at 30910 (criticizing the Twombly decision by concluding that major procedural changes should not be accomplished through judicial opinions and observing that Justices rarely have before them the empirical data necessary to evaluate new procedural innovations). 43. See Anthony Martinez, Case Note, Plausibility Among the Circuits: An Empirical Survey of Bell Atlantic Corp. v. Twombly, 61 ARK. L. REV. 763, 76971 (2009) (noting that courts remain uncertain about the federal pleading standard after Twombly). 44. Ashcroft v. Iqbal, 129 S. Ct. 1937, 194243 (2009). 45. Id. at 1943.

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constitutional violations.46 Accordingly, a Bivens action nearly always includes a statutory or constitutional claim as well.47 Iqbal, for example, claimed that the defendants violated his First and Fifth Amendment rights, as well as the principles enunciated in Bivens, the Alien Tort Claims Act, the Religious Freedom Restoration Act, a civil-rights conspiracy statute, and the Federal Tort Claims Act.48 However, in order for Iqbals Bivens claim to survive a motion to dismiss, the complaint needed to give rise to a plausible inference that Iqbals arrest and imprisonment were fueled by the defendantgovernment officials purposeful and unconstitutional discrimination.49 Iqbal sued dozens of government officials.50 Two of these officials, U.S. Attorney General John Ashcroft and FBI Director Robert Mueller, claimed that they were immune from liability and filed a 12(b)(6) motion to dismiss for failure to state a claim.51 The district court denied the motion, but Ashcroft and Muellers interlocutory appeals reached the Supreme Court.52 The Supreme Court held that Iqbals complaint against Ashcroft and Mueller failed to meet the federal pleading standard because his claim did not provide sufficient facts to raise a plausible inference that Ashcroft and Mueller purposefully violated Iqbals rights.53 The Court began its analysis of Iqbals complaint by identifying which statements were no more than conclusions and noting that legal conclusions do not receive the presumption of truth that factual statements receive.54 This allowed the Court to focus on two statements from the hundreds of statements in the pleading: first, that the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men . . . as part of its investigation of the events of September 11; and, second, that [t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were cleared by the
46. See generally 42 U.S.C. 1983 (2006) (balancing qualified-immunity principles with the right to recover damages from federal officials); Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (allowing a personal cause of action for damages against federal officials); BLACKS LAW DICTIONARY 191 (9th ed. 2009) (defining a Bivens action by analogy to a claim under 42 U.S.C. 1983). 47. Iqbal, 129 S. Ct. at 1948 (The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue.). 48. First Amended Complaint & Jury Demand 3, Elmaghraby v. Ashcroft, 2005 WL 2375202 (E.D.N.Y. Sept. 27, 2005) (No. 04 CV 01809 JG SMG), 2004 WL 3756442 [hereinafter Iqbal Complaint]. 49. Iqbal, 129 S. Ct. at 1952; accord id. at 1948 (Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose.). 50. Id. at 1943. 51. Id. at 1944; id. at 1960 (Souter, J., dissenting). 52. Id. at 1942, 1944 (majority opinion). 53. Id. at 194243, 1952. 54. Id. at 195051.

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FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11, 2001.55 Next, the Court examined the factual statements to see if they passed the plausibility standard that the Court established in Twombly.56 Neither claim passed.57 The Court held that the factual statements in the complaint did not raise a plausible inference that the defendants acted purposefully.58 The Iqbal Court did not necessarily intend to raise the pleading standard developed in Twombly.59 Instead, the Court assured litigants that Twombly was not a fluke.60 Iqbal confronted some of the major theories that scholars, attorneys, and judges had developed to reconcile what they perceived as Twomblys inconsistencies with the Federal Rules. For instance, the Court held that the Twombly standard applies to all federal claims, not just antitrust cases.61 It also confirmed that this standard does not apply to only cases that might involve significant discovery costs.62 In short, Iqbal enshrined Twomblys plausibility standard. Advocates have not been quietly submissive to the new pleading standard.63 Immediately after the Courts decision became public, Iqbal

55. Id. at 1960 (Souter, J., dissenting) (alterations in original) (quoting Iqbal Complaint, supra note 48, 47, 69) (internal quotation marks omitted); see id. at 195152 (majority opinion) (rejecting other sections of the complaint as conclusory). 56. Id. at 1951. 57. Id. at 1952. 58. Id. 59. See Sullivan, supra note 10, at 60 (positing that the Court in Twombly and Iqbal claimed not to, but did, raise the pleading standard). But see Hatamyar, supra note 10, at 575 (characterizing Iqbal as Twombly on [s]teroids). 60. See Iqbal, 129 S. Ct. at 1953 ([Rule 8] governs the pleading standard in all civil actions and proceedings in the United States district courts. (quoting FED. R. CIV. P. 1)). 61. Id. (Though Twombly determined the sufficiency of a complaint sounding in antitrust, the decision was based on our interpretation and application of Rule 8.). For an example of a scholar who had suggested Twombly might be unremarkable because it applied to only antitrust litigation, see Scott Dodson, Essay, Pleading Standards After Bell Atlantic Corp. v. Twombly, 93 VA. L. REV. IN BRIEF 135, 137 (2007), http://www.virginialawreview.org/ inbrief/2007/07/09/dodson.pdf. See generally Sullivan, supra note 10, at 1720 (discussing preTwombly antitrust litigation). 62. Iqbal, 129 S. Ct. at 1953 ([T]he question presented by a motion to dismiss a complaint for insufficient pleadings does not turn on the controls placed upon the discovery process.); Goode-Trufant, supra note 27, at 37, 56. See generally Sullivan, supra note 10, at 61 65 (summarizing and criticizing Twomblys effect on discovery costs). 63. See, e.g., Andre Sophia Blumstein, Twombly Gets Iqbal-ed: An Update on the New Federaland Tennessee?Pleading Standard, TENN. B.J., July 2009, at 23, 2324; Hatamyar, supra note 10, at 555 (If Twombly caused a shock, Iqbal struck a blow.); Tony Mauro, Groups Unite To Keep Cases on Docket, NATL L.J., Sept. 21, 2009, at 1; Mark Herrmann, James M. Beck & Stephen B. Burbank, Debate, Plausible Denial: Should Congress Overrule Twombly and Iqbal?, 158 U. PA. L. REV. PENNUMBRA 141, 15153 (2009), http://www.pennumbra.com/debates/pdfs/Plausible Denial.pdf (arguing that congressional intervention would prudently inhibit courts from overzealously applying Iqbal based on naive reasons, like rumors about discovery costs and frivolous lawsuits); Debra Cassens Weiss, As Judges Cite Iqbal To Toss Pleadings, Lawyers Plot

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galvanized the critics of Twombly and created new opposition from people who had believed that Twomblys standard was not universal.64 The Iqbal decision will likely cause just as much discussion as Twombly.65 As a practical result of Iqbals fortification of Twombly, more defendants will file 12(b)(6) motions, more judges will grant 12(b)(6) motions, more parties will drop or lose their causes of action, and fewer litigants will have their day in court.66 However, as the next Subpart explains, some parties might look to Rule 15 for a safety net. B. RECENT DEVELOPMENTS IN RULE 15 Rule 15 allows a party to amend a pleadingeven a pleading that is vulnerable to a 12(b)(6) dismissal for failure to meet the federal pleading standard. In other words, Rule 15 provides a second chance at success for claims that a court might otherwise reject after Iqbal. A party can amend either as a matter of course, or with permission from the opposition or leave of the court.67 1. Amending as a Matter of Course Amending as a matter of course, sometimes referred to as amending as a matter of right, means that a party has a right to amend its pleading without permission from the court or other party. Amending as a matter of course allows a party to fix oversights without needing to take up the courts

Reform, A.B.A. J., Sept. 21, 2009, http://www.abajournal.com/news/article/little-noticed_9-11_ ruling_cited_1500_times_spurring_move_to_undo_the_damag/. Senator Arlen Specter, for example, introduced a bill that would force courts to return to the Rule 8 standard that Conley established. See David Ingram, Bill Would Revive Pleading Standard, NATL L.J., July 27, 2009, at 12. 64. See, e.g., Kenneth S. Klein, Ashcroft v. Iqbal Crashes Rule 8 Pleading Standards on to Unconstitutional Shores, 88 NEB. L. REV. 261, 263, 27475 (2009); Adam Liptak, Case About 9/11 Could Lead to a Broad Shift on Civil Lawsuits, N.Y. TIMES, July 21, 2009, at A10. But see Editorial, Abuse and Accountability: The Supreme Court Turns Back a Detainees Lawsuit Against Top Justice Department Officials, WASH. POST, May 19, 2009, at A18 (applauding the Iqbal decision as a prudent protection of immunity for government officials); Neal R. Stoll & Shepard Goldfein, Defense for Twombly: Plausibility Standard Was Never More Plausible, N.Y. L.J., Aug. 18, 2009, at 1, 2 (Critics of Twombly and Iqbal argue that these cases go against the liberal pleading standard of the Federal Rules because they allow for a complaint to be dismissed on the merits before plaintiffs have the chance to develop facts obtained through discovery.). 65. Steven P. Garmisa, U.S. Supreme Court Calls for Fact-Pleading in Rights Case, CHI. DAILY L. BULL., July 7, 2009, at 1; Mauro, supra note 63 (With remarkable speed and success, Iqbal motions to dismiss because of insufficient pleadings have become commonplace in federal courts, already producing more than 1,500 district court and 100 appellate court decisions according to a Westlaw search. Many more are pending.). 66. Hatamyar, supra note 10, at 556, 624; Motzenbecker, supra note 37, at 11; see Clermont & Yeazell, supra note 11, at 84849 (affirming findings that 12(b)(6) dismissals increased after Twombly and explaining the shortcomings of empirical studies that have found otherwise). 67. FED. R. CIV. P. 15.

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time.68 For example, a party who files a complaint on Monday but finds new evidence on Tuesday can submit an amended complaint on Wednesday. The Judicial Conference recently modified when and how parties can exercise this right.69 As of December 1, 2009, Rule 15(a)(1) limits the time to amend as a matter of course to twenty-one days, depending on the situation: (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.70 However, the amendments do not change the general spirit of the rule.71 Instead, the Conferences changes to Rule 15(a) modify a partys ability to amend as a matter of course in two subtle ways.72 First, the amendments extend the time, from twenty to twenty-one days, in which a party can amend a pleading as a matter of course after an opposing party submits a motion to dismiss.73 Second, a responsive pleading no longer automatically prevents a party from amending.74 Before the changes, a partys ability to amend as a matter of course depended on how, if at all, the opposing party reacted to the partys initial complaint. For instance, a motion to dismiss for failure to state a claim would not terminate a partys right to amend as a matter of course.75 By

68. JACK H. FRIEDENTHAL, MARY KAY KANE & ARTHUR R. MILLER, CIVIL PROCEDURE 310 (3d ed. 1999). 69. Technically, the amendment process involves more than the input and effort of the Judicial Conference. See generally 28 U.S.C. 2072(a) (2006) (giving the Supreme Court power to prescribe the Federal Rules of Civil Procedure); Bone, supra note 30, at 877 n.9 (providing a concise account of the legislative process for amending the Rules). 70. FED. R. CIV. P. 15(a)(1). By comparison, the previous version of Rule 15 stated: (1) Amending as a Matter of Course. A party may amend its pleading once as a matter of course: (A) before being served with a responsive pleading; or (B) within 20 days after serving the pleading if a responsive pleading is not allowed and the action is not yet on the trial calendar. FED. R. CIV. P. 15(a)(1) (2008) (amended 2009). 71. FED. R. CIV. P. 15 advisory committees note to 2009 amendment. 72. Id. 73. Id. 74. Id. 75. FED. R. CIV. P. 15(a)(1)(A) (2008) (amended 2009); Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995) (Neither the filing nor granting of . . . a motion [to dismiss] before answer terminates the right to amend; an order of dismissal denying leave to amend at that stage is improper. (quoting Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393,

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contrast, a responsive pleadingsuch as an answerfrom the other party would preclude amendment because the old Rule 15 prevented amendment after the opposing party served a responsive pleading.76 Thus, under the old Rule 15, a defendant could file a 12(b)(6) motion along with a response and thereby strip the plaintiff of a right to amend as a matter of course. The changes to Rule 15(a)(1) simplify the right to amend by focusing on the timing, rather than the type, of filings.77 2. Amending with Leave of the Court A party can also amend with leave of the court. After the expiration of Rule 15(a)(1)s twenty-one-day limitation period, a party may amend its pleading only with the opposing partys written consent or the courts leave.78 The rule instructs that a court should freely give leave when justice so requires.79 With this leeway, courts grant leave even, for example, after the response period described in Rule 15(a)(1) ends or when the evidence that emerges during the trial does not coincide with the pleading.80 While amending as a matter of course appears to be a bright-line rule,81 amending with leave of the court involves a less predictable standard.82 The

1401 (9th Cir. 1986)) (internal quotation marks omitted)). This nuance results from the basic understanding that a responsive pleading is different from a responsive motion. See FED. R. CIV. P. 7 (distinguishing pleadings from motions); Shaver v. Operating Engrs Local 428 Pension Trust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003); McLellan v. Miss. Power & Light Co., 526 F.2d 870, 872 n.2 (5th Cir. 1976) (A motion to dismiss is not a responsive pleading for purposes of Rule 15(a).), vacated in part en banc, 545 F.2d 919 (5th Cir. 1977). 76. See FED. R. CIV. P. 15(a)(1) (2008) (amended 2009). 77. FED. R. CIV. P. 15 advisory committees note to 2009 amendment ([T]he right to amend once as a matter of course is no longer terminated by service of a responsive pleading.). See generally Time Changes Coming to Federal Rules, THIRD BRANCH NEWSL. (Admin. Office of the U.S. Courts, Washington, D.C.), June 2009, at 1, available at http://www.uscourts.gov/News/ TheThirdBranch/TTBViewer.aspx?doc=/uscourts/news/ttb/archive/2009-06%20jun.pdf (summarizing changes to the Federal Rules regarding deadline calculations). 78. FED. R. CIV. P. 15(a)(2) (In all other cases, a party may amend its pleading only with the opposing partys written consent or the courts leave. The court should freely give leave when justice so requires.). 79. Id.; see also Foman v. Davis, 371 U.S. 178, 182 (1962) (instructing courts on how to exercise discretion and stating that outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules). 80. FED. R. CIV. P. 15(b) (explaining that a party can amend during trial so that the pleading conforms to the proof presented at trial). Like Rule 15(a), 15(b) gives great discretion to the court: The court should freely permit an amendment [during trial] when doing so will aid in presenting the [actions] merits . . . . Id. 15(b)(1). 81. That is, the ability to amend depends on a particular number of days. See supra Part II.B.1. 82. 6 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE AND PROCEDURE 1484, at 67679 (3d ed. 2010) (Precise delineation of when an amendment will be allowed is impossible because . . . leave to amend is a matter that is within the discretion of the trial court.).

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rule has two overall mandates that judges must follow: (1) liberally give leave, and (2) use leave as a tool for justice. Factors that courts use to determine whether justice requires leave to amend include bad faith, prejudice to the opposing party, the impact on timing in light of the requirement for expeditious trials, and the futility of the amendment.83 Beyond these factors, some courts deny amendment because they find that amendment diminishes the sanctity of other rules, especially rules regarding final judgments.84 Courts examine these factors in light of all of the circumstances. For example, a plaintiff who does not promptly amend a complaint as a matter of course will likely still be able to amend with leave of the court, even though this might delay trial.85 That same plaintiff, however, might not be able to amend if such a delay prevents the defendant from fully preparing for trial.86 On a practical level, another factor a court might use to determine whether amendment is a tool for justice is whether the party would have a right to appeal the judges decision. If the district court denies a partys rights under Rule 15, then the appellate courts standard of review varies depending on the lower courts reason for not granting leave to amend. For example, if the district court denies leave to amend on the grounds of futility, then the standard of review in most jurisdictions is de novo.87 By contrast, if the district court denies leave to amend because of the other factors mentioned abovesuch as bad faith or prejudicethen abuse of discretion is the standard of review.88 Moreover, if a district court denies
83. Foman, 371 U.S. at 182 (identifying undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment as reasons to deny leave to amend). 84. See, e.g., FED. R. CIV. P. 59(e) (describing the amount of time in which a party must file a motion to alter or amend a judgment); id. 60(b) (allowing a party to file a motion for relief from a final judgment or order); Clardy v. Duke Univ., 299 F.2d 368, 36970 (4th Cir. 1962) (If it should be held that plaintiff could amend without leave after . . . the granting of summary judgment against him, the effect would be to clothe a litigant with the power . . . to reopen a case and . . . set aside a judgment . . . .). 85. Cf. Dubicz v. Commonwealth Edison Co., 377 F.3d 787, 792 (7th Cir. 2004) (holding that delay in itself is not reason enough to deny leave to amend). 86. See Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 8788 (2d Cir. 1998) (denying leave to amend because the amendment would force the opposing party to find new evidence and witnesses during the trial). 87. See, e.g., Miller v. Bd. of Educ. of Albuquerque Pub. Sch., 565 F.3d 1232, 1249 (10th Cir. 2009); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 755 (8th Cir. 2006). 88. See, e.g., Chavis v. Chappius, 618 F.3d 162, 167 (2d Cir. 2010) (We . . . review the denial of leave to amend a complaint for abuse of discretion. (citation omitted)); Wilson v. BruksKlockner, Inc., 602 F.3d 363, 368 (5th Cir. 2010). But see Johnson v. Buckley, 356 F.3d 1067, 1077 (9th Cir. 2004) (stating that [t]he denial of a motion to amend a complaint is reviewed for abuse of discretion after commenting that the district court denied amendment on grounds of futility).

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leave to amend because the court grants a 12(b)(6) motion to dismiss, then the appellate court applies the standard of review appropriate for a 12(b)(6) dismissal: de novo.89 C. CIRCUIT COURTS DISAGREE ABOUT AMENDING A COMPLAINT AFTER 12(B)(6) DISMISSAL As this Subpart demonstrates, circuit courts disagree about whether a plaintiff can amend a complaint using Rule 15 after a court grants a 12(b)(6) motion to dismiss for failure to state a claim. Some circuits allow a plaintiff to amend as a matter of course, even after a court grants a 12(b)(6) motion.90 Other circuits bar any type of amendment after 12(b)(6) dismissal.91 In between these two extremes is a moderate approach that bars amendment as a matter of course but allows amendment by leave of the court. The recent amendments to Rule 15 do not change the effect of this split, although the twenty-one-day limit will likely change the terminology of the split.92 1. Amending After the Rule 15 Revisions Prior to the revisions to Rule 15 in December 2009, some circuit courts had held that a plaintiff could amend a complaint after the district court dismisses the pleading.93 As discussed above, the older language of Rule 15
89. See, e.g., Wilson, 602 F.3d at 368 (When the district courts sole reason for denying such an amendment is futility, . . . we must scrutinize that decision somewhat more closely, applying a de novo standard of review similar to that under which we review a dismissal under Rule 12(b)(6). (emphasis omitted)); Rogers v. White Metal Rolling & Stamping Corp., 249 F.2d 262 (2d Cir. 1957). 90. See, e.g., RickMik Enters. Inc. v. Equilon Enters., LLC, 532 F.3d 963, 977 (9th Cir. 2008) (noting that the plaintiff could have amended its complaint as a matter of right even after the lower court had dismissed its entire pleading); see also infra notes 9396 and accompanying text (discussing these circuits rationale for allowing leave to amend as a matter of course after dismissal). 91. These jurisdictions typically consider a dismissal under 12(b)(6) to constitute a final judgment. Thus, a party must move to alter or amend a judgment rather than to amend a pleading. See, e.g., Ahmed v. Dragovich, 297 F.3d 201, 207208 (3d Cir. 2002) (finding that 12(b)(6) dismissal constitutes a final judgment and that the liberality of [Rule 15] is no longer applicable once judgment has been entered); Natl Petrochemical Co. of Iran v. M/T Stolt Sheaf, 930 F.2d 240, 24445 (2d Cir. 1991) (finding that a court cannot grant amendment under Rule 15 unless it can first vacate the judgment under Rule 60). 92. In other words, the outcome and disposition of cases before the different courts will likely remain the same except for a change in terminology: Amendment as a matter of course would change to amendment with leave of the court. See generally 15A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & EDWARD H. COOPER, FEDERAL PRACTICE AND PROCEDURE 3914.1, at 494 96 (2d ed. 1992 & Supp. 2008) (suggesting that a universal rule about amendment after 12(b)(6) dismissal could resolve this circuit split). 93. E.g., Chemtech Intl, Inc. v. Chem. Injection Techs., Inc., 170 F. Appx 805, 81011 (3d Cir. 2006) (allowing amendment as a matter of right even after the court granted a 12(b)(6) motion); Brever v. Rockwell Intl Corp., 40 F.3d 1119, 1131 (10th Cir. 1994) (holding that the right to amend as a matter of course still exists after a court grants a 12(b)(6)

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defined amendment as a matter of course in relationship to the type of pleadings and orders that the pleading faced.94 This group of circuit decisions preserved a partys right to amend without leave of court by reasoning that 12(b)(6) motions were not responsive pleadings.95 Furthermore, they held that a courts dismissal operates as a dismissal of the claim but not as a final judgment on the complaint.96 Other circuits held that a district courts dismissal prevents amendment as a matter of course.97 However, these courts generally provided an opportunity to amend with leave of the court.98 In fact, some circuits
motion). The exception to this rule occurs when a court explicitly denies an amendment because, for example, the complaint could not meet a pleading standard. Kirsch v. Barnes, 157 F. Supp. 671, 672 (N.D. Cal. 1957) ([T]he Court is given a large measure of discretion under such circumstances, and leave to file an amended complaint should not properly be granted unless new facts are made to appear which would remedy the defects contained in the previous complaint.), affd, 263 F.2d 692 (9th Cir. 1959). 94. See supra Part II.B.1. The Advisory Committee note to the 2009 revisions of Rule 15 explain that one reason for the changes is to orient the right in terms of time rather than type of motion or order. FED. R. CIV. P. 15 advisory committees note to 2009 amendment. This strategy is only as effective as the time limit is short. That is, the circuits that allow amendment without leave after 12(b)(6) dismissal can still do so as long as the pleading, motion, and order happen within the twenty-one-day period. Courts and parties are rarely so efficient. Consequently, the amendments to Rule 15 reduce the likelihood that a court will face the circumstances that this group of circuit courts depended upon to hold that amendment as a matter of right is permissible. 95. See, e.g., RickMik Enters., Inc., 532 F.3d at 977 (A motion to dismiss is not a responsive pleading within the meaning of Rule 15(a). . . . [The nonmoving party] could have filed an amended complaint even after the district court granted the motion. (citations omitted)); Doe v. United States, 58 F.3d 494, 49697 (9th Cir. 1995) (allowing a party to amend as a matter of right because an order granting dismissal is not a responsive motion). 96. The Ninth Circuit pioneered this 12(b)(6) distinction between dismissals and final dismissals that are appealable. See Disabled Rights Action Comm. v. Las Vegas Events, Inc., 375 F.3d 861, 870 (9th Cir. 2004); WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1135 (9th Cir. 1997) (en banc); Gerritsen v. de la Madrid Hurtado, 819 F.2d 1511, 1514 (9th Cir. 1987). See generally 15A WRIGHT, MILLER & COOPER, supra note 92, 3914.1, at 498501 (describing and then criticizing the Ninth Circuits approach). 97. E.g., Von Saher v. Norton Simon Museum of Art at Pasadena, 578 F.3d 1016, 1031 (9th Cir. 2009) (Unless it is clear that the complaint could not be saved by amendment, dismissal with prejudice and without leave to amend is not appropriate.), amended by 592 F.3d 954 (9th Cir.), petition for cert. filed, 78 U.S.L.W. 3629 (U.S. Apr. 14, 2010) (No. 09-1254); Ballou v. Gen. Elec. Co., 393 F.2d 398, 400 (1st Cir. 1968) (holding that leave to amend should accompany a 12(b)(6) dismissal and that the court must inform the losing party about the reasons for dismissal). 98. These courts maintain the effect of a liberal amendment policy by finding that the request for the courts leave can be informal or even implied. See, e.g., Oliver Sch., Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991) (finding, in the absence of any explicit or formal request for amendment, that the attorneys comments and actions inferred a desire to amend). Formal requests, however, provide the court with a clearer impression of whether the amended pleading will survive a 12(b)(6) motion. See Porat v. Lincoln Towers Cmty. Assn, 464 F.3d 274, 27576 (2d Cir. 2006) (finding that the party implied its desire to amend but that this informal process of requesting leave did not provide the court with a sufficient showing that the amended pleading would survive dismissal).

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required that leave to amend accompany every 12(b)(6) dismissal.99 This approach extinguished amendment as a matter of course but preserved the substance of that right by immediately giving the party the courts leave to amend.100 Following this approach maintains Rule 15s liberal mandate to give leave freely and ensures that the other party has notice of possible further action.101 Other circuit courts sought a middle ground between those circuits that always allowed amendment as a matter of course after 12(b)(6) dismissal and circuits that rarely or never allowed it. This majority approach permitted a party to amend as a matter of course but not as a matter of right after 12(b)(6) dismissal.102 However, courts in some of these jurisdictions only give leave to amend after dismissal if the court intended to dismiss the complaint and did not intend to enter final judgment on the claim.103 2. Rule 15s Recent Changes Do Not Resolve the Circuit Split The 2009 amendments to Rule 15 modified amending as a matter of course under Rule 15(a)(1) but did not modify the provisions governing when a court should give leave to amend under Rule 15(a)(2).104 Notably,

99. In other words, judges in some circuits must, absent extraordinary circumstances, grant leave to amend before a 12(b)(6) dismissal even if the nonmoving party does not request the courts leave. For examples of Third Circuit decisions that discuss this requirement, see Alston v. Parker, 363 F.3d 229, 235 (3d Cir. 2004), and District Council 47, American Federation of State, County and Municipal Employees v. Bradley, 795 F.2d 310, 316 (3d Cir. 1986). For a Ninth Circuit example, see Doe, 58 F.3d at 497. Other circuits, however, are not so willing to burden the judge with such a task. See Tucker v. MiddleburgLegacy Place, LLC, 539 F.3d 545, 55152 (6th Cir. 2008) (noting that the district court was not supposed to play a guessing game about whether the losing party wanted to amend (quoting Meehan v. United Consumers Club Franchising Corp., 312 F.3d 909, 914 (8th Cir. 2002) (internal quotation marks omitted)); In re Am. Express Co. Sholder Litig., 39 F.3d 395, 402 (2d Cir. 1994) (The district court surely did not abuse its discretion in not sua sponte granting leave to replead.); Bank of Waunakee v. Rochester Cheese Sales, Inc., 906 F.2d 1185, 1192 (7th Cir. 1990) (noting that a party who does next to nothing in seeking an amendment cannot successfully argue that the court should have given the party leave to amend). 100. Some critics condemned the practice because it gave the pleader two bites at the apple. If a judge says that the pleading does not meet the pleading standard, then the party can first appeal the judges decisionthe first bite. If the appeal fails, then the party can ask the judge for leave to amendthe second bite. See Wagner v. Daewoo Heavy Indus. Am. Corp., 314 F.3d 541, 54345 (11th Cir. 2002) (reversing a lower courts decision that gave a party two bites at the apple (internal quotation marks omitted)). 101. 15A WRIGHT, MILLER & COOPER, supra note 92, 3914.1, at 496, 503; 6 WRIGHT, MILLER & KANE, supra note 82, 1483, at 66574. 102. 3 JAMES WM. MOORE ET AL., MOORES FEDERAL PRACTICE 15.13[1] n.5, at 1518 (3d ed. 2010) (describing this as the majority approach); see, e.g., Bausch v. Stryker Corp., No. 093434, 2010 WL 5186062, at *14 (7th Cir. Dec. 23, 2010) (exemplifying this approach). 103. Cf. 6 WRIGHT, MILLER & KANE, supra note 82, 1483, at 66566 (Prior to its amendment in 2009, Rule 15(a) specifically limited a partys ability to amend without leave of court to the time before beging served with a responsive pleading.). 104. Compare FED. R. CIV. P. 15(a), with FED. R. CIV. P. 15(a) (2008) (amended 2009).

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the Committee notes comment on only one approach to the right to amend after 12(b)(6) dismissal: [Under former Rule 15(a),] [t]he right to amend survived beyond decision of [a 12(b)(6)] motion unless the decision expressly cut off the right to amend.105 In other words, the notes describe one of the more liberal approaches to amend.106 Moreover, this approach suggests that if an order grants a motion to dismiss but does not explicitly grant or deny leave to amend, then the party still has the option to amend as a matter of right. However, as explained above, appellate precedent indicates otherwise.107 While it is unlikely that the Committee underestimated or misunderstood the circuit split, the text of the rule does not technically bridge the circuit split. All approaches to amendment as a matter of course can continue under the rules new language, albeit with some limitation.108 For example, the approach that allows for amendments as a matter of course even after dismissal will rarely occur. After all, few courts and litigants are so efficient as to file all the necessary motions, responses, and orders within the twenty-one-day limit that the revised Rule 15(a)(1) imposes. Nevertheless, the changes to Rule 15 do remedy some of the circuit splits problems. For example, a plaintiff whose claim is dismissed under Rule 12(b)(6) can no longer lie dormant on his or her amendment right and later stun the winning party by not promptly exercising a right to amend as a matter of coursethat right does not exist after twenty-one days.109 Also, the rules new emphasis on time limitations, rather than on type of motion, prevents parties from buying more time through the amendment process.110 These revisions change Rule 15s impact on litigation, but they
105. FED. R. CIV. P. 15 advisory committees note to 2009 amendment. 106. A party could argue that the Committees language endorses only one view. This view would be somewhere between the most liberal viewin which parties can always amend after dismissaland the moderate view that prevents dismissal only when the order explicitly says so. 107. See supra Part II.C.1 (tracing the circuit split regarding how and when a party can amend a complaint after a judge grants a 12(b)(6) motion). 108. See supra note 92 (commenting on the new languages effect). 109. This is a small improvement, however, given that a party can ask the court to continue the litigation under Rule 59(e) (motion to alter or amend a judgment), Rule 60 (relief from a judgment or order), or Rule 73(c) (magistrate appeals). 110. The Department of Justice explained and supported Rule 15s new time-based approach: The Committee seeks to address what it considers to be the anomalous treatment of a partys right to amend its pleading, one that depends on whether the opposing party has served a response (such as an answer) or has moved to dismiss. In doing so, the Committee achieves some measure of certainty, by giving the party a 21-day window within which to make its amendment. Letter from Jeffrey S. Bucholtz, Acting Assistant Atty Gen., U.S. Dept of Justice, to Peter G. McCabe, Secy of the Comm. on Rules of Practice & Procedure 10 (Feb. 15, 2008), available at http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/CV%20Comments%202007/07CV-015.pdf.

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do not change Rule 15s liberal mandate to permit a party to amend a pleading. 3. The Most Restrictive Mandate to Courts: Give Leave or Give a Good Reason for Denying Leave Regardless of the reasons for giving leave, an appellate court will reverse the district courts denial if the rationale for denial is unclear.111 In one of the few discussions of Rule 15(a) by the Supreme Court, the Foman v. Davis decision endorsed a liberal approach to amendments by emphasizing that a courts reasons for denying leave must be clear.112 The Court stated that outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion and called such refusal an abuse of discretion inconsistent with the spirit of the Federal Rules.113 Some courts interpret this statement to mean that the district court is not the only court that can come up with the justification for denialthat is, when the trial court does not give good reasons, the reviewing court can search the record on its own for good reasons to deny amendment.114 Even with this restrictive interpretation, the Supreme Courts message is clear: Give leave to amend or give a good reason not to. Although the disagreement between the circuits regarding amendments of pleadings might seem negligible, it is actually stunning evidence of how liberal a liberal standard can be. The side of the circuit split that is the least amenable to giving leave holds that the judge who does not give leave must have a solid reason for doing so. On the other extreme of the split, allowing a party to amend, even after dismissal, is nearly a requirement. Equipped with the approaches to Rule 15 amendments in general, this Note now examines how circuit courts respond to Rule 12(b)(6) dismissals in particular.

111. Foman v. Davis, 371 U.S. 178, 182 (1962) (prohibiting arbitrary denial); Figgie Intl, Inc. v. Miller, 966 F.2d 1178, 1181 (7th Cir. 1992) (noting that the lower courts failure to explain denial reasons is an act that strays from Rule 15 and requires reversal). 112. 371 U.S. at 182. 113. Id. 114. See Commercial Money Ctr., Inc. v. Ill. Union Ins. Co., 508 F.3d 327, 347 (6th Cir. 2007) ([W]hen a district court fails to articulate the basis for denying a motion to amend, the error may be harmless if the proposed amendment would be futile.); Jet, Inc. v. Sewage Aeration Sys., 165 F.3d 419, 425 (6th Cir. 1999) (concluding that although it was an abuse of discretion for the magistrate judge to fai[l] to state the basis for [his] denial of leave to amend, this error was harmless because the courts review uncovered sufficient reasons for the denial (alteration in original) (citation omitted) (quoting Moore v. City of Peducah, 790 F.2d 557, 559 (6th Cir. 1986))); Levald, Inc. v. City of Palm Desert, 998 F.2d 680, 691 (9th Cir. 1993) (reversing the district courts unexplained denial of leave to amend after the reviewing courts search for an adequate reason to deny was unfruitful).

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III. AMENDING A PLEADING AFTER 12(B)(6) DISMISSAL The standard of review for a denial of leave to amend gives deference to the district-court judges legal decision.115 However, a judge abuses his or her discretion if the denial does not explain the reasons for barring amendment.116 With this in mind, this Part analyzes the most common reasons that judges give for denying leave to amend, focusing on the explanations that implicate Rule 12(b)(6) and Iqbals pleading standard. A. COURTS LIBERALLY GRANT LEAVE TO AMEND WHEN 12(B)(6) MOTIONS ARE INVOLVED Courts liberally grant leave to amend pleadings in general and when a 12(b)(6) dismissal is at stake.117 This liberal standard spans across all types of actions. In a securities action, for example, the Second Circuit vacated the district courts dismissal, stating: When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint. Although the decision whether to grant leave to amend is within the discretion of the district court, refusal to grant leave must be based on a valid ground.118 In a tort claim against the federal government, the Ninth Circuit remanded the case when the district court abused its discretion by barring amendment.119 The court remanded the case because the district-court judge was uncertain about the partys ability to fix the pleading.120 In a case dealing with the Employee Retirement Income Security Act, the Eleventh Circuit reversed the district courts decision to deny a party leave to amend a complaint.121 The reviewing court found that the denial was an abuse of discretion because there was at least some possibility the losing party could meet the 12(b)(6) standard.122 Notably, this liberal standard is an interpretation of Rule 15. It is not a liberal interpretation of Rule 8 filtered through the language of Rule 15 but

115. See supra notes 8789 and accompanying text (discussing the standard of review). 116. See supra Part II.C.3 (describing cases where courts found abuse of discretion); supra notes 8389 and accompanying text. 117. See Foman, 371 U.S. at 182; Oliver Sch., Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991); 3 MOORE ET AL., supra note 102, 15.14[1], at 15-25 (The policy in favor of allowing amendments is extremely liberal.); 6 WRIGHT, MILLER & KANE, supra note 82, 1484, at 687 (noting that Rule 15(a) sets forth an overall liberal amendment policy); supra Part II.C.3 (concluding that leave to amend is a liberal standard). The principal drafter of the Federal Rules also intended a liberal standard and applied a liberal standard when he later became a judge. Smith, supra note 4, at 918. 118. Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990) (citations omitted) (quoting 2A JAMES WM. MOORE & JO DESHA LUCAS, MOORES FEDERAL PRACTICE 12.4, at 1299 (2d ed. 1989)). 119. Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995). 120. Id. 121. Rosen v. TRW, Inc., 979 F.2d 191, 19495 (11th Cir. 1992). 122. Id.

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a separate analysis of both rules. Accordingly, even when a partys ability to plead successfully no longer involves a liberal interpretation of Rule 8, the partys ability to amend must still involve a liberal interpretation of Rule 15. How liberal is this standard? The next Subpart explains when and why appellate courts condone dismissing a pleading without leave to amend. B. REASONS TO DENY LEAVE A party facing 12(b)(6) dismissal is in a difficult position. If a judge gives leave to amend after explaining the basis for a 12(b)(6) dismissal, the amending party must comply with the explanation.123 If the amending party chooses not to follow the judges suggestions, this can support the reviewing courts decision to affirm the lower courts denial.124 In Friedlander v. Nims, for example, a district-court judge threatened attorney sanctions under Rule 11 if the amending party did not sufficiently amend its claim of securities fraud.125 On appeal, the Eleventh Circuit commented that when a judge gives specific instructions or advice about how to amend a pleading, a party that does not follow that advice can lose its chance to amend.126 The court observed: A district court may dismiss a case for failure to comply with the pleading rules. Although this is a severe sanction, its imposition is justified when a party chooses to disregard the sound and proper directions of the district court.127 Essentially, the judges advice influences the content of the amended pleading. This influence seems suspect given that the adjudicator, rather than the advocate, might determine the theory of the case.128 On most occasions, a judges reasons for denying leave to amend do not include Rule 11 threats. Instead, a judge simply finds that amending is futile. Examples of futile amendments include a complaint that adds parties that

123. Amending under these circumstances might hinder a partys trial strategy by forcing the party to divulge strategic decisions about evidence. 124. See Airborne Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 66668 (7th Cir. 2007) (holding that the district court did not abuse its discretion by dismissing a pleading when the amending party did not satisfactorily take into account the judges suggestions on how to amend the pleading). 125. 571 F. Supp. 1188, 119495 (N.D. Ga. 1983) (Counsel is cautioned that the strictest compliance with Rule 11 will be expected if amendment is made. (citation omitted)), affd, 755 F.2d 810 (11th Cir. 1985). Rule 11 prohibits frivolous submissions to the court. See FED. R. CIV. P. 11(b). 126. Friedlander, 755 F.2d at 81314 (It is difficult to imagine how the district court could have been more explicit in expressing its concern over the complaints deficiencies and in recommending the changes necessary to correct them.); see supra note 123 (discussing trial strategy). 127. Id. at 813. 128. Smith, supra note 4, at 92527; Liptak, supra note 64 (It obviously licenses highly subjective judgments . . . . This is a blank check for federal judges to get rid of cases they disfavor. (quoting civil-procedure scholar Stephen B. Burbank on Iqbal) (internal quotation marks omitted)).

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are beyond the courts jurisdiction or a complaint that states a cause of action that breaches the statute of limitations.129 Similar to futility, courts can also deny leave to amend if the complaint is frivolous, meaning no facts could possibly cure the complaints faults.130 Given the standard of review, this disposition must not depend on the facts of the case but on questions of law and an application of the Rules instead. However, this line between fact and law is not always clear.131 The Seventh Circuit illustrated this point when it reviewed a case involving a group of horticulturalists in Chicago who alleged that the citys weed ordinance was unconstitutional.132 The district court dismissed the claim because the fact that the plaintiffs neighbors were receiving tickets for violating the ordinance was not enough to show that the citys ordinance harmed the plaintiffs or that the city had threatened them with sanctions.133 While reviewing whether denial of leave to amend was an abuse of discretion, the Seventh Circuits language suggested a fact-based disposition: [B]ecause the plaintiffs have not alleged sufficient facts to show that the City has threatened them with prosecution under the current weed ordinance, we find their claims of genuine fear unrealistic.134 The court decided that the facts had no legal merit.135 Courts also deny amendment when they predict that the amended pleading would not, or could not, add facts that meet the pleading threshold.136 For example, in Acito v. IMCERA Group, Inc., the Second

129. See Moore v. Indiana, 999 F.2d 1125, 1128, 113031 (7th Cir. 1993); Long v. U.S. Dept of Def., 616 F. Supp. 1280, 1284 (E.D.N.Y. 1985). In Long, when a discharged serviceman contested the status of his discharge and the army managed to dismiss his complaint, the court found that [g]ranting leave to amend the original complaint . . . would be futile, because even if leave to amend the original complaint was granted, plaintiffs claims would still be barred by the statute of limitations [and laches]. Id.; see also Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (finding that an amendment to add an affirmative defense to an answer pleading was not futile because it added facts). 130. Cox v. Warden, 911 F.2d 1111, 1114 n.6 (5th Cir. 1990) (denying a party leave to amend his complaint when the proposed amendment involved calculating jail time because no calculation could fulfill the elements of the cause of action); see Consumers Petroleum Co. v. Texaco, Inc., 804 F.2d 907, 91314 (6th Cir. 1986) (holding that the denial of leave to amend was improper when the amendment could have met the pleading standard). 131. Cf. supra notes 5466 and accompanying text (criticizing the Iqbal Courts method of stripping the substance of the plaintiffs complaint on the tenuous distinction between facts and conclusions). 132. Schmidling v. City of Chi., 1 F.3d 494, 495 (7th Cir. 1993). 133. Id. at 500 (We do not find the allegations . . . have demonstrated that the plaintiffs are in real and immediate danger of sustaining some direct injury . . . .). 134. Id. at 499. 135. Id. at 501. 136. This could involve the court positing that it is impossible for the pleader to provide additional, or more specific, facts. Long v. U.S. Dept of Def., 616 F. Supp. 1280, 1284 (E.D.N.Y. 1985) ([P]laintiffs proposed amended complaint merely remedies certain

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Circuit held that the new information that the plaintiff planned to add to a fraud complaint failed to show a strong inference of the defendants fraudulent intent.137 The plaintiff intended to add facts that the defendant company delayed material disclosures to investors.138 Even though courts liberally give leave to amend, this Subpart has described some of the limits to amending. A party that faces 12(b)(6) dismissal but asks the court for leave to amend could find its case in a precarious position. As the next Subpart shows, Rule 15 could help. C. A MOTION STRATEGY THAT HARNESSES RULE 15 AND IQBAL The Supreme Courts decision in Iqbal restricted the pleading standard of Rule 8 from the more liberal Conley standard.139 Rule 15, however, still mandates a liberal approach to amending pleadings.140 Because Iqbal did not restrict Rule 15, it is still possible for a party to exploit the differences between Rule 8 and Rule 15. Moreover, when a district court denies leave because amending a complaint to prevent dismissal under Rule 12(b)(6) would be futile, frivolous, or impossible, appellate courts agree that the particular reasons for denial must be clear.141 This creates two significant advantages for a party facing dismissal. First, a party that is aggressive enough to solicit the judges reason for denial and agile enough to amend its pleading accordingly will either win the judges approval of the amended complaint or, if the district court dismisses the amended complaint, enjoy a record that favors the party on appeal. Appellate courts are looking for an abuse of the district courts discretion not to allow the party to amend, and an arbitrary denial of leave to amend constitutes abuse.142 The second advantage depends directly on Iqbal. The district courts reason for denying leave to amend must be clear.143 Yet Twombly and Iqbal have complicated the analysis that courts are supposed to use to evaluate the

jurisdictional and other errors that existed in the original complaint but raises no new issues of material fact.). 137. 47 F.3d 47, 52 (2d Cir. 1995). 138. Id. at 5052. 139. See supra Part II.A (discussing how and when the Court restricted the pleading standard). 140. See supra Part II.C (discussing how liberal a liberal standard for leave to amend can be); Part III.A (characterizing leave to amend as a liberal standard, even following a 12(b)(6) dismissal). 141. See supra Part II.C.3 (discussing how, when, and why courts need to give reasons for denying leave); see also supra Part III.B (discussing futile, frivolous, and impossible amendments as reasons for a court to deny leave). 142. See supra Part II.C.3 (concluding that courts must either give leave to amend or give a good reason to deny leave to amend); see also supra notes 8789 and accompanying text (discussing the standards of review relevant to Rule 15). 143. See supra Parts II.C.3, III.B.

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federal pleading standard.144 This confusion can serve as an additional argument for appellants. In order to gain an edge in the argument, the appellant can reference the liberal precedent of Rule 15. Unfortunately, this motion strategy is neither inexpensive nor quick. In a sense then, the Twombly and Iqbal decisions fail to encourage judicial economy and expediency.145 The two decisions have forced, or likely will force, parties to abandon fundamental aims of civil procedure.146 For example, prior to the Iqbal decision, parties with few resources would attempt to avoid the need to amend by filing a complaint like the drafters of the Rules intended, the plain meaning of the Rules suggest, and the forms illustrate. After Iqbal, however, these same parties will feel the need to go beyond the short and simple statements of the past in order to feel confident that they will not need to redraft the complaint. While parties can resort to Rule 15s steadfast and universally liberal amendment process if their complaint fails to meet Iqbals new pleading standard, the amendment process takes time and money. Ultimately, a party might plead before trial, replead, appeal, and then need to start the process all over again if the appellate court remands the case. Rule 15 provides a safeguard to 12(b)(6) dismissal after Iqbal, but the motion strategy behind this safeguard can be difficult and expensive. IV. CONCLUSION This Note explored a partys ability to amend a pleading under Rule 15 that a court might otherwise dismiss under Rule 8s post-Iqbal pleading standard. The analysis demonstrated that circuit courts offer diverse approaches to some aspects of Rule 15. At the same time, they share a nearuniversal appreciation for a liberal standard that favors the opportunity to amend a pleading. This Note presented a motion strategy based on Rule 15 that reduces the sting of Rule 8s new restrictive approach to the once-liberal federal pleading standard. However, while this strategy provides a path for

144. Moreover, this analysis is rife with inconsistencies. See supra Part II (arguing that the new pleading standard of Rule 8 conflicts with the history of the Rules, appellate jurisprudence, and other procedural rules). Commentators have particularly identified Iqbals distinction between fact and legal argument as complicated or even capricious. Bone, supra note 8, at 862 67; Elizabeth Thornburg, Law, Facts, and Power, 114 PENN ST. L. REV. PENN STATIM 1 (2010), http://www.pennstatelawreview.org/114/114%20Penn%20Statim%201.pdf; see also supra notes 5455 and accompanying text (discussing the Iqbal Courts distinction between fact and legal conclusion); cf. Walter Wheeler Cook, Statements of Fact in Pleading Under the Codes, 21 COLUM. L. REV. 416 (1921) (providing an early account of courts struggling with the nebulous distinction between law and fact). 145. Frugality and efficiency are also goals; however, the method to achieve these goals is not, and has never been, a heightened pleading standard. See FED. R. CIV. P. 1; supra Part II.A. 146. See BROOKS, supra note 33, at 8896 (concluding that a heightened pleading standard adversely affects women and racial minorities in particular); Stancil, supra note 26, at 11417 (describing the economic benefits of a liberal pleading standard).

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litigants with meritorious claims to circumvent the barriers to justice that a restrictive pleading standard creates, the strategy also requires time and resources. These additional costs are contrary to the Rules overarching interests in judicial efficiency and access to the courts. Thus, rather than enhancing the goals of federal procedure, Twombly and Iqbal diminished them by stripping Rule 8 of its once-liberal standard. Nevertheless, Rule 15 can ensure that litigants have access to the courts, but now the path is longer, more difficult, and involves sorting through a diverse appellate jurisprudence.