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New standard for MTD (Motion to Dismiss)


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This will require some reading;

In addressing a motion to dismiss under Federal Rule of Civil Procedure 12(B)(6), the Court must follow the new standard of review articulated by the United States Supreme Court in Bell Atlantic Corp. v. Twombley, 127 S.Ct 1955 (May 21, 2007).

The Supreme Court determined that the standard set forth in Conley v. Gibson, 355 U.S 41, 45-46 (1957), “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 [her] claim which would entitle [her] to relief[,]” has “earned its retirement.” Twombly, 127 S.Ct at 1968, 1969.

The Supreme Court held that a viable complaint must now include “enough facts to state a claim to relief that is plausible on its face.” Id. at 1974. That is, “[f]actual allegations must be enough to raise a right to relief above the speculative level....” Id. at 1965. The new standard is not a “heightened fact pleading” requirement, but “simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [the claim].” Id. at 1965, 1974. Hogue v. Palisades Collection, LLC, Slip Copy 2007 WL 1892938 (S.D.Iowa, 2007).

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What it means is that a JDB can sue you, and immediately file for MSJ under the rules of procedure. The bar to obtain a summary judgment in fed court is now much lower.

It seems to me that the first party to file the MSJ/MSD is the winner.

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