Suja Thomas's new article argues that recent Supreme Court cases have made it possible for Rule 12(b)(6) to be used the same way as Rule 56, even earlier in litigation. Of course, Rule 56 is standard operating procedures these days for bouncing employment discrimination claims--an evolving use of 12(b)(6) could be used to save more money and time. I think as a practical matter a judge is going to feel better about a Rule 56 motion after discovery etc. rather than shoot from the hip in a 12(b)(6), although in the short run with claims of varying quality on the increase, this approach is worth thinking about a little more, especially with marginal claims. Her article is The New Summary Judgment Motion: The Motion to Dismiss Under Iqbal and Twombly. Here's her abstract:
Civil procedure scholars have extensively discussed the new 12(b)(6) standard articulated by the Supreme Court in Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly. In this discourse, however, an interesting development has not been explored. The standard for the motion to dismiss has evolved in such a way as to make the motion to dismiss the new summary judgment motion. Despite different words in Federal Rules of Civil Procedure 12(b)(6) and 56 and no discovery before dismissal under 12(b)(6), the new 12(b)(6) dismissal standard now tracks the standard for summary judgment. Moreover, the motion to dismiss under the new summary judgment-like standard may have effects similar to those experienced under summary judgment, including a significant use of the procedure by courts, a related increased role for judges in litigation and a corresponding increased dismissal of employment discrimination cases. This essay describes the similarities between the motion to dismiss and the motion for summary judgment, and also explains how, as a result of these similarities, Swierkiewicz v. Sorema may no longer be good law. This essay further proposes that differences between the motions, including discovery, cost and the role of the courts, call into question the propriety of the changes under Iqbal and Twombly.
