Debunking Twombly/Iqbal: Plausibility is More than Plausible in Ohio and Other States

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Matthew Marino, Executive Editor, University of Cincinnati Law Review

This article was originally published in Volume 89, Issue 4 of the University of Cincinnati Law Review. Click here to read the article in full.

I. Introduction

Access to justice is a cornerstone of the American judicial system.[1] Although justice is promoted through wide access to the courts, this interest must be balanced to prevent lawsuits that are frivolous, revenge-seeking, or unreasonable.[2] Federal Rule of Civil Procedure 8(a)(2) provides that a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.”[3] In Bell Atlantic v. Twombly,[4] the Supreme Court abruptly departed from the longstanding “notice pleading”standard developed for Rule 8(a)(2) fifty years earlier in Conley v. Gibson. The Conley standard was lenient and justified a complaint’s dismissal only if “no set of facts” could be shown to demonstrate a plaintiff’s entitlement to relief.[5] The Court in Twombly set a more stringent standard to govern complaints, holding antitrust plaintiffs alleging violations of Section 1 of the Sherman Act must plead sufficient factual matter to support a plausible claim for relief.[6] The Supreme Court subsequently extended Twombly to all civil cases in Ashcroft v. Iqbal in 2009.[7]

A major policy motive behind the Twombly/Iqbal standard (“Twombly/Iqbal”) is to protect defendants from burdensome discovery requests, especially from plaintiffs who rely almost exclusively on discovery to uncover whether their claims have merit.[8] “Plausibility” therefore requires a complaint to set out “enough facts to raise a reasonable expectation that discovery will reveal evidence” of a claim for relief.[9] This has become more relevant with the advent of e-discovery, where the use of evidence from large, electronically stored databases has become both necessary and commonplace, making discovery more costly and time-consuming.[10]

State courts remain free to follow notice pleading, and indeed most state courts still follow some form of the Conley standard.[11] Some Ohio courts have adopted Twombly/Iqbal while others have either not decided or expressly rejected plausibility, suggesting the issue is ripe for the Ohio Supreme Court.[12]

This Comment argues that the Ohio Supreme Court should adopt Twombly/Iqbal. Although Twombly/Iqbal is more stringent than notice pleading, implementing Twombly/Iqbal in Ohio and other states will not impair access to the courts as many fear,[13] but rather will serve benefits by encouraging more factually precise complaints and motions at the initial pleading stages of a lawsuit. This will lead to more viable complaints, better case management, and clearer expectations for practitioners, all of which will reduce the costs associated with early pre-trial litigation. Adoption of the standard in Ohio also comports with Ohio’s tradition of modeling its own rules of procedure after the Federal Rules of Civil Procedure (“Federal Rules”) and relying on federal case law to interpret those rules. Further, plausibility does not mark a drastic departure from notice pleading because it has long been implicitly embedded in early pre-trial litigation.

This Comment will proceed as follows. First, Section II will discuss how states have modeled their own procedural rules after the Federal Rules, examine whether states should rely on federal law at all, and outline Ohio’s tradition of modeling its own rules of civil procedure after the Federal Rules and using federal case law to interpret those rules. Section II will also dissect Twombly/Iqbal in its entirety. Sections II-C, II-D, and II-E will serve as a guide for practitioners seeking to understand Twombly/Iqbal. Next, Section III will argue that adoption of Twombly/Iqbal comports with Ohio’s tradition of adopting federal procedural law. Section III will also respond to opponents’ concerns surrounding state court adoption of the Twombly/Iqbal. Section IV will conclude that Twombly/Iqbal is as sensible in application as it is in theory, reasserting that Ohio and other state courts should adopt Twombly/Iqbal to promote pretrial litigants’ best interests.

[1] See Hon. Earl Johnson Jr., Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies, 24 FORDHAM INT’L L.J. 83, 84 (citing Reginald Herber Smith, Justice and the Poor (1919)).

[2] See Erin Schiller & Jeffrey A. Wertkin, Frivolous Filings and Vexatious Litigation, 12 GEO J. LEGAL ETHICS 909 (2000-2001).

[3] Fed. R. Civ. P. 8(a)(2). 

[4] 550 U.S. 544 (2007).

[5] See Conley v. Gibson, 355 U.S. 41, 45 (1957).

[6] Id. at 556.

[7] 556 U.S. 662, 685 (2009).

[8] Twombly, 550 U.S. at 558 (citing Car Carriers v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir. 1984)).

[9] See id. at 556.

[10] See Richard L. Marcus, E-Discovery Beyond The Federal Rules, 37 U. Balt. L. Rev. 321, 322 (2008).

[11] See Darcy Jalandoni & David Shouvlin, Ohio and Twombly/Iqbal: Plausible? Ohio Law. (Ohio State Bar Ass’n), May/June 2015, at 26 (“Inasmuch as Twombly/Iqbal dealt with procedural issues, state courts are not bound to follow their rulings under the Erie Doctrine, and most have not. By our recent count, of the 12 state supreme courts that have substantively examined Twombly/Iqbal, only three—Massachusetts, Nebraska and South Dakota—have adopted the plausibility standard or something akin to it. Nevada has declined to decide. The remaining states have declined to shift from established basic notice pleading principles to the plausibility requirement. They are Arizona, Iowa, Minnesota, Montana, Tennessee, Vermont, Washington and West Virginia.”). Id.

[12] See infra notes 135-138.

[13] See infra notes 144-146.


  • Matthew graduated from UC Law in the Spring of 2022 and served as the Law Review's Executive Editor during his 3L year. Matthew's article Debunking Twombly/Iqbal: Plausibility is More than Plausible in Ohio and Other States is published in Volume 89 Issue 4 of the Law Review. During law school, Matthew also produced articles about defamation law & internet speech, the legal implications of gene-editing technologies, and whether there should be a constitutional right to basic minimum education. An aspiring litigator, Matthew also served on the Moot Court Honor Board. He will be returning to his hometown, Louisville, KY, upon graduation to join the litigation practice at the local law firm Duncan Galloway Greenwald PLLC.

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