Ninth Circuit Outlines for Plaintiff How to Meet the Twombly/Iqbal Standard in a Third Amended Complaint

In this case, the plaintiff, Nicole Weber, appealed the United States District Court for the District of Arizona’s dismissal of her second amended complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The issue on appeal before the Ninth Circuit panel was whether Weber’s allegations were sufficient to survive a 12(b)(6) motion under the Twombly/Iqbal standard requiring a complaint to set out a plausible claim. Since the Supreme Court’s rulings in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, federal district courts have seen more motions to dismiss filed. In turn, district courts have often given plaintiffs a chance to file an amended complaint.

Weber’s case involves allegations that breast implants were defective, raising product liability claims. Rather than simply affording Weber the opportunity to re-plead, the Ninth Circuit panel outlined for the plaintiff exactly how she should plead to overcome the Twombly/Iqbal standard. Specifically, the panel stated that “with the following additions, or similar amendments…the complaint would meet the Twombly/Iqbal plausibility requirement…”. The panel then outlined three specific paragraphs that could be cut and pasted into the plaintiff’s amended complaint which, once done, would almost necessitate the District Court to deny any further 12(b)(6) motion based on the plausibility standard set forth in Twombly and Iqbal.

Practitioners and their clients are faced with the strategic decision early in litigation whether to challenge the viability of a pleading under Twombly and Iqbal. Since District Courts are often times granting leave to amend and some courts, like the panel in Weber, are outlining for plaintiffs how to plead a plausible cause of action, the decision on whether to challenge a complaint under Twombly/Iqbal should be well reasoned and considered in light of the facts as they currently stand and may stand a year or more down the line. Manufacturing and design defect theories may involve different approaches in this regard. Manufacturing defect claims are less likely to be buoyed by evolving science, guidelines and practices. Whereas design defect claims may, in some instances, benefit from an expeditious litigation free from years of pleading practice and the opportunity for courts to refine plaintiff’s theories for them, while science, guidelines and practices change.

We should note that the Ninth Circuit determined its disposition was not appropriate for publication and not precedent except as provided by 9th Cir. R. 36-3.

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