Twombly-Iqbal “Plausibility” and Maryland’s Pleading Requirements

Kamil Ismail Guest contributor

In a pair of decisions from 2007 and 2009, the Supreme Court of the United States established what has become known as the Twombly-Iqbal standard for a federal complaint to state a claim. With Twombly-Iqbal now entrenched in federal court, practitioners may be wondering whether that standard’s “plausibility” requirement also applies to complaints in state court. A better question, though, may be whether such a requirement was ever lacking in state court.

In three recent unreported opinions, the Maryland Court of Special Appeals has effectively applied that standard without acknowledging any reliance on it. That reticence may be unwarranted in light of other precedents that suggest that Maryland pleading requirements have always had much of the rigor that Twombly-Iqbal is only now requiring in federal court.

In Bell Atlantic Corp. v. Twombly,[1] the Supreme Court tightened the previously lenient, notice-pleading standard that had reigned in federal courts for decades, holding that Federal Rule 8(a)(2) required a claim to possess, at a minimum, enough “heft” to show the pleader’s entitlement to relief. [2] The Court stated that a complaint needs “more than labels and conclusions, and a formulaic recitation of the elements of a cause of action”; instead, it requires factual allegations sufficient “to raise a right to relief above the speculative level.” [3] To be viable in federal court, thus, a complaint must have “enough facts to state a claim to relief that is plausible on its face.” [4]

Two years later, the Court expanded on this “plausibility” standard in Ashcroft v. Iqbal.[5] To have enough “facial plausibility” to survive a motion to dismiss, a complaint must “plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”[6] This requires “more than a sheer possibility that a defendant has acted unlawfully.” [7] “Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops shorts of the line between possibility and plausibility of “entitlement to relief.”’” [8]

Post-Iqbal, the Maryland Court of Appeals has yet to address the “plausibility” requirement for state-court complaints, and the Court of Special Appeals has been cautious in addressing it in three unreported opinions to date. Twice, the intermediate court has affirmed dismissal of a complaint, expressly applying a “plausibility” standard – but without citing Twombly or Iqbal.[9] And in a third case, the court recognized that the language of well-established Maryland precedents was “reminiscent of the pleading standard” in Twombly and Iqbal,[10] affirmed the dismissal of a “sparse” complaint whose allegations were “the type of ‘bald assertions and conclusory statements’ that courts will not accept,”[11] but declined to rest its conclusion explicitly on Twombly-Iqbal. [12]

This caution is understandable prior to a definitive ruling by the Court of Appeals. It might, however, be unnecessary in light of what could be considered Twombly-Iqbal’s virtual antecedents in Maryland’s own pleading requirements.

In adopting the “plausibility” requirement for federal courts, the Twombly Court abrogated a 50-year-old precedent, Conley v. Gibson,[13] which had held 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.” [14] But even before Twombly and Iqbal rejected Conley, the Conley standard had never held sway in Maryland courts. To the contrary, the Court of Appeals had expressly rejected it at least seven years before Twombly, holding in Manikhi v. MTA[15] that “contrary to federal practice, dismissals for failure to state a claim are not limited to those cases in which ‘it appears beyond doubt that the plaintiff can prove no state of facts in support of his claim which would entitle him to relief.’”[16]

Five years later – but still two years before Twombly – Judge Rodowsky, the author of the Manikhi opinion, expanded on these pleading requirements while sitting on special assignment in the Court of Special Appeals. In McMahon v. Piazze,[17] he first reviewed Maryland Rule 2-303(b), which requires “such statements of fact as may be necessary to show the pleader’s entitlement to relief.”[18] He also noted that Maryland Rule 2-305 requires claims for relief to contain “a clear statement of the facts necessary to constitute a cause of action.”[19] Under these authorities along with Manikhi, he wrote, a petition failed to state a claim where its factual allegations were “extremely general,” consisting of “no more than a reference to factors present in almost any case,” along with “conclusory” averments and a “nexus between facts and conclusion” that could only be inferred “by speculation.”[20]

No more than “a reference to factors present in almost any case”? A nexus between facts and conclusion that is dependent on “speculation”? Echoes – or prechoes, if one might coin a word – of Iqbal, anyone? Specifically: “Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.”? [21]

In light of these antecedents, is the real question whether the Court of Appeals will eventually adopt Twombly-Iqbal? Or whether that standard already inheres in Maryland’s longstanding pleading requirements?


[1] 550 U.S. 544 (2007).

[2] Id. at 557.

[3] Id. at 555.

[4] Id. at 570 (emphasis added).

[5] 556 U.S. 662 (2009).

[6] Id. at 678.

[7] Id.

[8] Id.

[9] See Wilson v. Exxon Mobil Corp., No. 1524/14, 2015 WL 6549167 at *1 (Md. Ct. Spec. App. Aug. 13, 2015) (holding that claimants had failed to establish a “plausible entitlement to relief” and affirming dismissal); Heflin v. Ulman, No. 156/15, 2016 WL 1360805 at *1, 4 (Md. Ct. Spec. App. Apr. 6, 2016) (holding that allegations were “insufficient to state a plausible claim” and affirming dismissal).

[10] Baltimore Co. v. Baltimore Co. Deputy Sheriffs, No. 1498/13, 2016 WL 687503 at *5 n. 3 (Md. Ct. Spec. App. Feb. 18, 2016).

[11] Id. at *6.

[12] Id. at *5 n. 3 (noting that the “Court of Appeals has yet to consider the applicability of the Twombly-Iqbal plausibility standard in Maryland state cases,” and stating that the panel’s “decision does not invoke or consider the Twombly-Iqbal standard in any way”).

[13] 355 U.S. 41 (1957).

[14] Id. at 45-46. See also Twombly, 550 U.S. at 561-63 (abrogating Conley).

[15] 360 Md. 333 (2000).

[16] Id. at 343 (citing Conley with disapproval).

[17] 162 Md. App. 588 (2005).

[18] Id. at 597 (quoting Md. R. 2-303(b)).

[19] Id. (quoting Md. R. 2-305).

[20] Id.

[21] Iqbal, 556 U.S. at 678 (internal quotation marks omitted).

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5 responses to “Twombly-Iqbal “Plausibility” and Maryland’s Pleading Requirements”

  1. Michael Wein says :

    Interesting topic, though to be fair, these are unreported opinions, one just noting in a footnote, that the decision isn’t premised on Twombly, and that the possibility hasn’t been addressed in a reported opinion in Md. FRCP 8, also has different wording than the Maryland Rule, so it’s not necessarily something that naturally applies.

    The other two, I see the word “plausible” is used a few times, but those cases, at least from a cursory review, seem to have some inherent “heightened pleading” standards, that would would “expect” some direct specifics. (And it could be argued Maryland has already adopted heightened pleading in these types of matters akin to Twombly, for awhile) Fraud….definite heightened pleading. Intentional torts like defamation? Perhaps not as well enshrined, but one would naturally expect a suit alleging “defamation” to give some specifics as to what were the defamatory statements, particularly ones that have a heightened burden such as with public figures or in that case, being somewhat candid in commenting on an employee/employer relationship. Same goes for IIED claim, which previous cases note need to specify “outrageous” facts in the complaint causing emotional distress, which usually involves some sort of personal psychiatric care or distress, to help verify the extreme “emotion distress” which occurred.

    Now, there may be some bases for not putting all the specifics in a public complaint, such as embarrassment, and not exacerbating the defamation, or because mental health issues caused by the conduct were felt by the filer to be personal. Still, should the Defendant(s) be confused about the bases, and asks for more information, it might be preferable to simply do an amended complaint, rather than risk dismissal. However, it’s unclear in particular, that a pro se litigant (which may have been one of the cases cited), would understand that. Further, there’s case law on treating pro se complaints broadly “liberally” that would have to be eventually addressed.

    One could lament, that a Motion to Dismiss, when the specifics are known by the Defendants, really wastes judicial resources and/or does not do substantial justice if unduly enforced. An incoherent panoply of various causes of actions, that make no sense, is a better use of the mechanism of a Motion to Dismiss. Still, I would tend to think a generally applicable heightened pleading standard in Maryland, would have to be first done through Rule change, since it’s not been changed at all, at least for more than a decade, so it’s settled law, at least for those vast majority of causes that do not have an inherent or established heightened pleading standard..

    • Kamil Ismail says :

      Thanks, Michael, I appreciate the comment.

      I agree that a “heightened” pleading standard as such would only be applicable to certain types of claims, such as fraud. But I DO believe that even ordinary claims need specific factual allegations — not conclusory assertions — that, if proven true, would be enough to entitle the claimant to relief.

      For the reasons discussed in the post, I also believe these allegations must clear at least a threshold of “plausibility” and “heft,” akin to the post-Twombly federal requirements. Frankly, I don’t see any other way to read Manikhi and McMahon, both reported opinions by Judge Rodowsky.

      • Michael Wein says :

        I see your point, but one of the objections to Twombly-Iqbal, at least at the time, was that it was seemingly done by a judicial opinion rather than through Rule change. (And took a lot of Fed. practitioners off-guard)
        See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 579, 127 S. Ct. 1955, 1979, 167 L. Ed. 2d 929 (2007)(J. Stevens, dissenting)(“Petitioners have not requested that the Conley formulation be retired, nor have any of the six amici who filed briefs in support of petitioners. I would not rewrite the Nation’s civil procedure textbooks and call into doubt the pleading rules of most of its States without far more informed deliberation as to the costs of doing so. Congress has established a process—a rulemaking process—for revisions of that order. See 28 U.S.C. §§ 2072–2074 (2000 ed. and Supp. IV).”)

        Obviously, that’s now standard in the Federal Courts, but state Courts tend to have significantly more cases, with less formality. Additionally, Maryland’s always been a “pleading” jurisdiction which does not suggest that a change would be accomplished through a judicial decision. If the pattern you note in the post is of consequence (on top of Judge Rodowsky’s pre-Iqbal/Twombly decisions), it may be more directed towards considering a change in due course at Rules Committee, rather than it be done through an appellate decision.

        As a matter of practice, I fully agree…best to give at least the main facts and connective tissue of the facts to the causes of actions, as part of the Complaint for Damages. One can look at I think all the Causes of Action in Paul Sandler and Mr. Archibald’s book on the subject, and even just reviewing the barebones elements to be plead, the exemplars given there I think have more than enough facts to explain the matter sufficiently to the reader.

        Additionally, if such a change were to occur, it’s utility would primarily be for more complicated Circuit Court cases, again suggesting it would be through a Rule-making authority. Yet, the rules are nearly identical for District Court cases, which tend to be drafted through “Forms” under 3-303….yet otherwise have the same wording as 2-303.

        You may want to also view Hansen v. Laurel, which was 2011 and after the S.C. decisions, which did have a strict interpretation, but it’s been a singular issue of statutory interpretation In Maryland for Local Gov. Tort Claim Act filings, that were based on a line of cases that suggested that outcome. Judge Harrell spoke there for the Court, citing among other sources, Maryland Rules Commentary at 300 (“Certain causes of action require that conditions precedent to entitlement to relief be pleaded as an element of the cause of action…. Statutory provisions may also create conditions precedent.”).

        Hansen v. City of Laurel, 420 Md. 670, 686, 25 A.3d 122, 132 (2011)

        I think this is due to Maryland, while keeping an eye towards Federal Rules for ideas, that they often are not pari materia with said Rules, particularly when they differ in wording and precedent. See also Combs v. ICG Hazard, LLC, 934 F. Supp. 2d 915, 923 (E.D. Ky. 2013) (“Because Kentucky’s pleading standard is more lenient than the federal rules, which standard applies matters as to whether Plaintiffs have asserted colorable claims against Fields.” in adopting lower pleading standard in case based on wording of Kentucky Rule)

        In other words, cases of a Federal Constitutional nature such in Search and Seizure jurisprudence, do tend to “percolate” so that when there’s substantive new case law at the S.C., the Maryland Courts take immediate heed. Going back to Hansen, Judge Adkins dissented, and in fact stressed Maryland’s Rules, in particular a liberal leave to amend policy in Maryland, in disagreeing with the majority AND citing to Conley v. Gibson, though that was no longer good law and abrogated. There was no citation, (sub silencio or otherwise) of Iqbal or Twombly, by either the Majority or Dissent, which there could have been.

        “We have continued to adhere to Hall’s preference for granting leave to amend. See, e.g., RRC Northeast, LLC v. BAA Md., Inc., 413 Md. 638, 674, 994 A.2d 430, 451–52 (2010) (Harrell, J., for the Court) (citing Hall for the proposition that “it is the rare situation in which a court should not grant leave to amend[.]”). The policy goal behind our liberal amendment policy is to have cases decided on the merits. See Crowe v. Houseworth, 272 Md. 481, 485, 325 A.2d 592, 595 (1974) (“We have said that amendments should be freely allowed in order to promote justice, … so that cases will be tried on their merits rather than upon the niceties of pleading[.]”). See also McMahon v. Piazze, 162 Md.App. 588, 599, 875 A.2d 807, 813 (2005) (“The general rule is that amendment should be allowed liberally.”).

        On this same point, the Seventh Circuit has explained the federal policy against dismissal with prejudice on a failure to meet a technical pleading requirement:In Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80, the Supreme Court set out the general policy of the federal courts favoring liberal construction of pleadings. “The 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.” Id. at 48, 78 S.Ct. 99. Professors Wright and Miller have similarly commented: dismissal under Rule 12(b)(6) generally is not on the merits and the court normally will give plaintiff leave to file an amended complaint. The federal policy of deciding cases on the basis of the substantive rights involved rather than on technicalities requires that plaintiff be given every opportunity to cure a formal defect in his pleading … Amendment should be refused only if it appears to a certainty that plaintiff cannot state a claim.Wright & Miller, Federal Practice & Procedure § 1357, at 611–613.”

        Hansen v. City of Laurel, 420 Md. 670, 701–02, 25 A.3d 122, 141–42 (2011) (J. Adkins, dissenting)

        Not surprisingly the Federal Rule on Leave to Amend can be quite strict at times and generally requires consent by the other parties, or Court permission. So the Rules as they exist in Maryland, are consistent and not bound to the FRCP interpretation, which Iqbal/Twombly involves. As a matter of practice, litigators should prefer to plead “plausible” more than colorable (and usually do) but it would tend to require significant Rules changes for this to be a “new” standard for pleading in most cases.

  2. Kamil Ismail says :

    More trenchant observations, thanks, Michael. If plausibility indeed represented a new or changed standard, I would agree on the need for a rule change.

    The point, however, is that plausibility is not a change or a new standard but was always required, even, pre-Twombly, by Maryland’s own rules, regardless of how federal courts interpreted the Federal Rules. Michael’s point, that the Maryland Rules do not always track the Federal Rules, was in fact one of Judge Rodowsky’s bases for concluding that Maryland’s pleading requirements (as reflected in the existing rules) are stricter than the (pre-Twombly) federal standard.

    Incidentally, more precise pleading requirements are not inconsistent with liberal leave to amend. One could even argue that they should go together as a matter of fairness. There’d certainly be less need to amend if the pleading requirements were loose in the first place.

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