Twombly: Trimming Some of the Possible Worlds
posted by Bruce Boyden
Over at Prawfsblawg, Scott Dodson has a post up commenting on the latest judicial decision to attempt to make sense of the Supreme Court’s civil procedure blockbuster last term, Bell Atlantic v. Twombly. Twombly held, seemingly contrary to what courts had been saying for decades, that a complaint must not only provide a short and plain statement of the claim, but must also plead “enough facts to … nudge[ ] their claims across the line from conceivable to plausible.” Although this set off alarm bells among many commenters suggesting that the Supreme Court had just struck notice pleading dead, the Third Circuit, in Phillips v. County of Allegheny, held that Twombly says only that Rule 8(a)(2) means what it says: a plaintiff must provide not only a short and plain statement of the claim, but one “showing that the pleader is entitled to relief.” No plausible facts, no showing. In that case, Twombly would be a non-event.
Scott proposes a different interpretation:
A better reconciliation of “plausibility” and Rule 8 would have returned to the Third Circuit’s initial insight: context matters. In the unique circumstances of antitrust, inferential allegations of conspiracy must contain facts showing the conspiracy was plausible in order to show entitlement to relief. By contrast, in a garden-variety negligence case, for example, plausibility is not required; rather, even a bare averment of “negligently drove” may need no factual elaboration on the question of negligence in order to show entitlement to relief.
These interpretations are both reasonable. But here’s mine, which I suggested to my Civ Pro class when we covered this case a few weeks ago: Twombly rules out low-probability inferences in complaints.
Philosophers use a neat terminology to discuss counterfactuals and probabilities: they refer to each possible course of events as occurring in a “possible world.” The probability of the event actually occurring (or having occurred) is represented by the “distance” of that possible world from our own. For example, a nearby possible world has me eating a peanut butter and jelly sandwich tomorrow. (It might even be the actual world.) In a much more distant possible world, I win a million dollars tomorrow. In an even more distant possible world, Earth is invaded by aliens tomorrow.
Conley v. Gibson‘s “no set of facts” language — that “a complaint should not be dismissed for failure to state a claim 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 — seems to say that, as long as there is even one possible world, consistent with the allegations in the complaint, in which the plaintiff wins, a 12(b)(6) motion must be denied. Twombly, by contrast, seems to hold that a motion to dismiss can be granted where the plaintiff only wins in very distant possible worlds — i.e., under circumstances that have a low probability of being actual.
I think that’s the only way in which the Twombly complaint could be dismissed, but Form 11 (née 9) and Swierkiewicz remain on the books. In Twombly, the plaintiffs alleged what were, to them, suspicious circumstances: parallel conduct by all of the Baby Bells in denying competing local phone service and internet providers wholesale access to their networks, and in not competing with each other. Therefore, given the parallel conduct, the plaintiffs alleged
upon information and belief that [the Baby Bells] have entered into a contract, combination, or conspiracy to prevent competitive entry in their respective … markets and have agreed not to compete with one another ….
How is that too large a leap from the facts pled, but Form 11 — “on [date], at [place], the defendant negligently drove a motor vehicle against the plaintiff” — isn’t? Or the complaint in Swierkiewicz, which alleged that the plaintiff was a 53-year-old native of Hungary, that he was phased out of his job by some French nationals, and then asserted that he had been fired due to age discrimination and national origin discrimination? I think the Supreme Court is drawing an implicit line between inferences that are relatively probable (although not necessarily 50% probable), and those whose probabilities are below some undeclared threshold. Or, to put it back in possible worlds terminology, there’s a distance limit to how far an inferential leap can travel in a complaint.
The Twombly majority evidently believed the “suspicious circumstances” — the parallel conduct — alleged by the plaintiffs in that case only gave rise to an extremely slim chance of an actual conspiracy; somewhere on the order of my winning a million dollars tomorrow. (Imagine this inference: I had a donut today; therefore, on information and belief, I will win a million dollars tomorrow. Sure, the second fact is consistent with the first. But the donut-eating worlds are hardly anywhere close, as a group, to the million-dollar-winning worlds.) Indeed, Justice Souter in footnote 4 takes the trouble to point to discussions of hypothetical parallel conduct that does make a conspiracy relatively more probable: for example, “complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason.”
Contrast the Supreme Court’s assessment of the Twombly complaint to Form 11. Car accidents happen a lot, and often someone is negligent in them. The mere fact of a car accident, which is what Form 11 pleads, is relatively close to possible worlds in which the driver of the car was negligent. Similarly, the Court has to be saying the same thing about Swierkiewicz: when a middle-aged foreigner is fired by people from a different foreign country attempting to “energize” the company, it’s sometimes due to national origin discrimination and age discrimination. Close enough.
Don’t get me wrong: I’m not saying the Court assessed the probabilities correctly in Twombly. Who says that the world in which the Baby Bells have entered into an antitrust conspiracy is incredibly distant from the world in which 7 Baby Bells all exclude resellers from their networks, and all fail to compete in each others’ markets? Nevertheless, I think the Supreme Court thinks courts can make such intuitive judgements reliably, and the purpose of Twombly is to give district courts the discretion to dismiss when the only “set of facts” under which the plaintiff wins is possible, but highly improbable.