Caggiano v. Rees et al, No. 9:2020cv01293 - Document 5 (N.D.N.Y 2020)

Court Description: DECISION AND ORDER: ORDERED that if Plaintiff wishes to proceed with this action, he must file an Amended Complaint as set forth above within thirty (30) days from the date of the filing of this Decision and Order. ORDERED that if Plaintiff time ly files an Amended Complaint, this matter be returned to the Court for further review. ORDERED that if Plaintiff fails to timely file an Amended Complaint as directed, the Clerk shall enter judgment indicating that this action is DISMISSED witho ut prejudice without further order of this Court pursuant to 28 U.S.C. § 1915(e)(2)(B) for failure to state a claim upon which relief may be granted and for failure to comply with this Decision and Order. In that event, the Clerk is directed to close this case. Signed by Judge Brenda K. Sannes on 11/5/2020. (Attachments: # 1 case law cited, # 2 case law cited, # 3 case law cited, # 4 case law cited, # 5 case law cited, # 6 case law cited, # 7 case law cited)( Notice of Compliance Deadline 12/7/2020, Case Review Deadline 1/6/2021){order served via certified and regular mail on plaintiff}(nas)

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Caggiano v. Rees et al Doc. 5 Att. 2 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 While it is proper and even recommended that decision to dismiss for frivolousness be made prior to issuance of process in order to spare defendant expense and inconvenience in answering frivolous complaint, extreme caution should be exercised in ordering sua sponte dismissal of pro se complaint before adverse party has been served and both parties, particularly plaintiff, have had opportunity to respond. (Per Cardamone, Circuit Judge, with KeyCite Yellow Flag - Negative Treatment Distinguished by Cespedes v. Coughlin, S.D.N.Y., February 7, 1997 700 F.2d 37 United States Court of Appeals, Second Circuit. Fred M. ANDERSON and Wayne Nelson, Plaintiffs, Fred M. Anderson, Appellant, v. Thomas COUGHLIN, Commissioner, New York State Department of Corrections, Defendant-Appellee. No. 85, Docket 81–2429. | Submitted Sept. 3, 1982. | Decided Jan. 26, 1983. Synopsis Inmates brought civil rights suit for damages allegedly arising out of a 12–hour keeplock in a maximum security state prison. The United States District Court for the Northern District of New York, Howard G. Munson, Chief Judge, dismissed and inmate appealed. The Court of Appeals, Cardamone, Circuit Judge, held that the keeplock, imposed so that correction officers could attend the funeral of a prison guard murdered while on duty, did not deny the prisoners due process or equal protection. one Circuit Judge concurring in the result.) U.S.C.A. § 1915(d). 609 Cases that cite this headnote [2] Federal Civil Procedure court's own motion Dismissal on Sua sponte dismissal for frivolousness may occur and is in some cases preferable after service of process and expansion of record. (Per Cardamone, Circuit Judge, with one Circuit Judge concurring in the result.) 6 Cases that cite this headnote [3] Federal Civil Procedure proceedings Forma pauperis Benefit of proceeding in forma pauperis is privilege, not right. (Per Cardamone, Circuit Judge, with one Circuit Judge concurring in the result.) Affirmed. 28 U.S.C.A. § 1915. 12 Cases that cite this headnote Winter, Circuit Judge, filed an opinion concurring in the result. Kearse, Circuit Judge, filed a dissenting opinion. Procedural Posture(s): On Appeal; Motion to Dismiss; Motion to Dismiss for Failure to State a Claim. West Headnotes (11) [1] 28 Federal Civil Procedure court's own motion Dismissal on [4] Federal Civil Procedure proceedings Forma pauperis Standard applicable on motion to dismiss for failure to state claim is not sole basis for dismissal for frivolousness, but such dismissals may also occur where plaintiff is engaged in repeated litigation of issues already determined, allegations of complaint are beyond credulity, or there is little chance of success on merits in light of various defenses which may be asserted. (Per Cardamone, Circuit Judge, with one Circuit Judge concurring in the result.) § 1915(d). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 28 U.S.C.A. 1 Dockets.Justia.com Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 Standard of review where there is challenge to sufficiency of basis for prison officials' emergency response must give benefit of doubt to responsible officials because it is unfair if not simply impossible for persons foreign to day-today involvement with prison community later to reconstruct conditions present at time emergency arose. 55 Cases that cite this headnote [5] Federal Courts general Dismissal or nonsuit in Federal Courts Pleading In determining whether pro se complaint was properly dismissed for frivolousness, Court of Appeals considers entire record in case, including the defenses which had been or could have been raised in order to assess plaintiff's chances of success and to determine whether district court abused its discretion in dismissing complaint. [9] 28 U.S.C.A. § 1915(d). Federal Civil Procedure pleadings Construction of [10] Leniency accorded pro se plaintiffs when attempting to understand claims in often inartfully worded complaints does not create predisposition toward such plaintiffs in substantive determination of whether claims are frivolous. Civil Rights Prisons, jails, and their officers;  parole and probation officers Constitutional Law Discipline Constitutional Law classification Discipline and Twelve-hour “keeplock” in maximum security state prison, for purpose of allowing correction officers to attend funeral of prison guard murdered while on duty, did not violate inmates' rights to due process or equal protection and even if constitutional rights were violated, prison officials' good-faith immunity would bar action against them. 42 U.S.C.A. § 1983. 1 Cases that cite this headnote [8] Prisons Prisons general Discipline, security, and safety in Prison superintendent's judgment in ordering confinement should prevail absent clear showing of gross abuse. 3 Cases that cite this headnote 28 U.S.C.A. § 1915. 22 Cases that cite this headnote [7] Discipline, security, and safety in Prison authorities necessarily must be allowed wide discretion in use of confinement for purpose of protecting safety and security of prison and its general population. 158 Cases that cite this headnote [6] Prisons general Scope or standard of review [11] Civil Rights Good faith and reasonableness;  knowledge and clarity of law;  motive and intent, in general In order to be immune from civil rights damage actions, executive official must have had goodfaith belief that he was acting properly and there must have been reasonable grounds for that belief in light of all circumstances as they reasonably appeared at the time. 1 Cases that cite this headnote Attorneys and Law Firms *38 Fred M. Anderson, pro se. *39 Robert Abrams, Atty. Gen. of the State of N.Y., Albany, N.Y. (William J. Kogan, Asst. Sol. Gen., Wayne L. Benjamin, Asst. Atty. Gen., Albany, N.Y., of counsel), filed a brief for defendant-appellee. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 Before KEARSE, CARDAMONE and WINTER, Circuit Judges. Opinion CARDAMONE, Circuit Judge: While the issue before us—did a 12-hour “keeplock” in a maximum security state prison violate plaintiff-inmates' civil rights—is simply stated, its resolution is more complex and requires detailed analysis. Plaintiffs Fred M. Anderson and Wayne Nelson instituted this action against defendant Thomas Coughlin, Commissioner of the New York State Department of Corrections, for defendant's alleged violation of plaintiffs' civil rights in having ordered plaintiff-prisoners confined to their cells in the Great Meadow Correctional Facility on May 21, 1981 for “no reason” and without affording them “equal protection or procedural due process.” Anderson appeals pro se from an order of the United States District Court for the Northern District of New York (Munson, J.) dated October 19, 1981 which dismissed the complaint. We affirm the district court's dismissal. I In May 1981 New York State Correction Officer Donna Payant became the first female prison guard murdered while on duty. Her death occasioned extensive publicity within the State. Commissioner Coughlin issued a directive calling for a statewide cell confinement of inmates (known as a “keeplock” or “lockdown”) so that correction officers throughout the State 1 could attend Payant's funeral on May 21, 1981. On May 20, 1981 suit was brought in the United States District Court for the Southern District of New York by an inmate seeking to prevent the confinements authorized by Coughlin. Flaherty v. Coughlin, (S.D.N.Y. May 20, 1981). Late that afternoon District Judge Sweet held a hearing at which he enjoined the Commissioner “from instituting a keeplock except on an institution-by-institution basis arising out of emergency conditions or jeopardy to the safety or security of the [particular] institution” resulting from lack of sufficient personnel. He also ordered that officials attempt to minimize the necessity for general lockdowns. Accordingly, on the day of the funeral inmates were confined to their cells at only three of the State's 33 correctional facilities— the maximum security prison at Green Haven (site of the murder), the maximum security prison at Great Meadow and the medium security prison at Bayview. For having been confined to their cells during the 12-hour keeplock at Great Meadow on May 21st plaintiffs instituted a pro se action each seeking $1000 in damages for violation of their civil rights, presumably under 42 U.S.C. § 1983. Their complaint was sent directly to Magistrate Conan in accordance with 28 U.S.C. § 636(b) and Rule 43(c)(4) of the General Rules for the Northern District of New York. The Magistrate ordered it filed as of June 16, 1981, granted plaintiffs leave to proceed in forma pauperis and ordered that service of process should issue without payment of fees. On June 30 plaintiffs filed a motion for summary judgment together with a supporting memorandum of law, which was denied as untimely by the Magistrate because defendant had not yet been served. Plaintiffs then amended their complaint to include reference to Fifth Amendment due process in addition to the previously asserted Fourteenth Amendment due process claim. Defendant sought and was granted a 30day extension to respond to the complaint. In the meanwhile plaintiffs filed a motion for default judgment which was denied on the basis of the 30-day extension. On July 21 defendant made a motion to dismiss the complaint under Fed.R.Civ.P. 12(b) for failure to state a claim upon which *40 relief may be granted. This motion was accompanied by an affidavit of Assistant Attorney General Mary Bisantz indicating that the keeplock was imposed for “non-punitive, administrative reasons occasioned by temporary lack of sufficient correctional personnel to staff the facility on that day.” Magistrate Conan issued a report recommending that the defendant's motion be granted and the complaint dismissed. He explained that it is within the prison administration's discretion to determine whether departure of the guards created a sufficient security risk to require limited keeplock. Since the keeplock was a “one-time occurance [sic] ... prompted by the guards attending a funeral service,” he found that sufficient justification existed for the administrative decision made at Great Meadow. The Magistrate's Report-Recommendation was delivered to plaintiffs on September 28, 1981. Nelson filed an Affirmation in Opposition to the Report on October 2, along with a Demand for Jury Trial. Nelson's objections to the Report amounted to a conclusory denial of “each and every justification given” for dismissal, and repetition of the basis of his complaint, i.e., that plaintiffs were not © 2020 Thomson Reuters. No claim to original U.S. Government Works. 3 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 afforded due process before being locked-down for the day. On October 8 Anderson filed a motion to compel the defendant to answer proffered interrogatories; his papers did not contain objections to the Magistrate's Report. Chief Judge Munson reviewed the entire record and issued an order on October 20 approving the Magistrate's ReportRecommendation, granting defendant's motion to dismiss the complaint and dismissing all other motions as moot. Anderson timely filed a notice of appeal and a motion for leave to proceed in forma pauperis and for appointment of counsel on appeal. In the latter document he alleged that he was unable to respond to the Magistrate's Report because he was “ ‘in transit’ as a Federal Prisoner.” II The only legal issue is whether the district court properly dismissed the complaint. A complaint should not be dismissed for failure to state a claim under Fed.R.Civ.P. 12(b)(6) “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.” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 101– 102, 2 L.Ed.2d 80 (1957). A 12(b)(6) motion is addressed to the face of the complaint; a court ruling on a 12(b)(6) motion that wishes to consider matters outside the complaint in determining whether to dismiss may treat the motion as one for summary judgment under Rule 56, provided the parties are given notice that summary judgment is being considered and afforded reasonable opportunity to present pertinent material in response. See Fed.R.Civ.P. 12(b). Looking just at the allegations of the complaint we cannot say that plaintiffs could under no circumstances prove that their constitutional rights were violated. If the Commissioner had personally singled plaintiffs out and for no reason whatever locked them in their cells for a day, they might be able to sustain their claim. The district court did not, however, view the complaint in a vacuum when it issued its dismissal order. Even though the October 20 order approves the Magistrate's Report which cites Rule 12(b)(6) as a recommended basis for dismissal, Judge Munson explicitly mentions that he made his ruling “[a]fter careful review of all the papers” contained in the record. Since he apparently did not notify the parties that he intended to treat the 12(b)(6) motion as one for summary judgment, and although no specific rule is cited as the ground for the district court's dismissal, we think the clear import of the procedure followed below is that the court intended to dismiss this pro se complaint as frivolous under 28 U.S.C. § 1915(d) (1976). See Williams v. Field, 394 F.2d 329, 330 (9th Cir.) (though the district court didn't express the basis for its dismissal, the Ninth Circuit found that § 1915(d) was the apparent ground), cert. denied, 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1966). Due to substantial recent increases in the volume of prisoner civil rights cases filed in *41 the federal courts and special considerations attaching to such cases, many districts, including the Northern District of New York, follow adaptations of a widely recognized procedure recommended for the handling of prisoners' pro se petitions. See generally Federal Judicial Center, Recommended Procedures for Handling Prisoner Civil Rights Cases in the Federal Courts (1980) (hereinafter “FJC Report”). Standardized forms designed to assist the pro se complainant in stating his claim in a complete and comprehensible manner and in providing appropriate information for determination of in forma pauperis (IFP) status are used. Id. at 45 et seq. Magistrates perform the initial screening and processing of the forms. Id. at 49, 51–53; see also 28 U.S.C. § 636(b) (1976 & Supp. IV 1980); N.D.N.Y.R. 43(c)(4). 2 The preferred practice is for the Magistrate first to consider the petitioner's economic status and decide whether to grant leave to proceed in forma pauperis. FJC Report, supra at 54, 57–58. If leave is granted, the Court/Magistrate should then determine whether dismissal is appropriate under 28 3 U.S.C. § 1915(d). Id. at 58. In districts where the services of a Magistrate are utilized, the Magistrate submits a report and recommendation to the judge indicating his suggested disposition; the report is also mailed to the plaintiff and all parties who have been served. See 28 U.S.C. § 636(b); N.D.N.Y.R. 43(c)(4); FJC Report, supra at 59, 70. The parties then have ten days in which to file objections, see FJC Report, supra at 59, and the district judge makes a de novo determination regarding objected to portions of the report before rendering a final decision on dismissal. § 636(b). 28 U.S.C. [1] [2] While it is proper, see Fries v. Barnes, 618 F.2d 988, 989 (2d Cir.1980); FJC Report, supra at 73, and even recommended that a decision to dismiss under § 1915(d) be made prior to issuance of process in order © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 to spare the defendant the expense and inconvenience of answering a frivolous complaint, FJC Report, supra at 59, our Court has often admonished that extreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and both parties (but particularly the plaintiff) have had an opportunity to respond, see, e.g., (2d Cir.1980); Fries v. Barnes, 618 F.2d 988, 989 Ron v. Wilkinson, 565 F.2d 1254, 1257 (2d Cir.1980); Lewis v. New York, 547 F.2d 4, 5 (2d Cir.1976); Cunningham v. Ward, 546 F.2d 481, 482 (2d Cir.1976). Thus, sua sponte § 1915(d) dismissal may occur and is in some cases preferable after service of process and expansion of the record. Brown v. Schneckloth, 421 F.2d 1402, 1403 (9th Cir.) (per curiam), cert. denied, 400 U.S. 847, 91 S.Ct. 95, 27 L.Ed.2d 85 (1970); Boruski v. Stewart, 381 F.Supp. 529, 533 (S.D.N.Y.), aff'd sub nom, Boruski v. United States, 493 F.2d 301 (2d Cir.1974). Moreover, expansion of the record protects the unskilled litigant and enables the court to make an informed decision regarding the merits of an action by reference to the reality of the situation rather than by speculating as to the nature of the claim. Harvey v. Clay County Sheriff's Department, 473 F.Supp. 741, 745 (W.D.Mo.1979). Therefore, unless frivolity is facially apparent, it is “incumbent upon the court to develop the case and to sift the claims and known facts thoroughly until completely satisfied either of its merit or lack of same.” Jones v. Bales, 58 F.R.D. 453, 464 (N.D.Ga.1972), aff'd, 480 F.2d 805 (5th Cir.1973), cited in Boston v. Stanton, 450 F.Supp. 1049, 1053–54 (W.D.Mo.1978). At whatever point it is clear that merit is lacking, the IFP action should be dismissed as frivolous under § 1915(d). See id. *42 Review of the facts recited above reveals that the district court in this case carefully followed the outlined recommended procedure. In light of this and our analysis infra of the appropriateness of § 1915(d) dismissal, we are persuaded that the lower court dismissed this case as frivolous under § 1915(d). In order to ensure that this privilege will not be abused, Congress provided in § 1915(d) that IFP proceedings may be dismissed by the court sua sponte “if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” See Fletcher v. Young, 222 F.2d 222, 224 (4th Cir.) (per curiam), cert. denied, 350 U.S. 916, 76 S.Ct. 201, 100 L.Ed. 802 (1955). [3] Many cases have expressed the view that the federal district courts are vested with especially broad discretion to deny state prisoners the privilege of proceeding IFP in civil actions against officials of the institution in which they are incarcerated. See, e.g., Collins v. Cundy, 603 F.2d 825, 827 (10th Cir.1979) (per curiam); Milton v. Nelson, 527 F.2d 1158, 1160 (9th Cir.1976); Daye v. Bounds, 509 F.2d 66, 68 (4th Cir.), cert. denied, 421 U.S. 1002, 95 S.Ct. 2404, 44 L.Ed.2d 671 (1975); Conway v. Fugge, 439 F.2d 1397 (9th Cir.1971) (per curiam); Williams v. Field, 394 F.2d at 330–32; Shobe v. California, 362 F.2d 545, 546 (9th Cir.), cert. denied, 385 U.S. 887, 87 S.Ct. 185, 17 L.Ed.2d 115 (1966); Holsey v. Bass, 519 F.Supp. 395, 406 (D.Md.1981); Boston v. Stanton, 450 F.Supp. at 1053. One often-quoted case discusses the rationale for this conclusion: Persons proceeding in forma pauperis are immune from imposition of costs if they are unsuccessful; and because of their poverty, they are practically immune from later tort actions for “malicious prosecution” or abuse of process. Thus indigents, unlike other litigants, approach the courts in a context where they have nothing to lose and everything to gain. The temptation to file complaints that contain facts which cannot be proved is obviously stronger in such a situation. For convicted prisoners with much idle time and free paper, ink, law books, and mail privileges the temptation is especially strong. As Justice Rehnquist has noted, “Though [an inmate] may be denied legal relief, he will nonetheless have obtained a short sabbatical in the nearest federal courthouse.” Cruz v. Beto, 405 U.S. 319, 327, 92 S.Ct. 1079, 1084, 31 L.Ed.2d 263 (1972) (dissenting). .... III Title 28 U.S.C. § 1915(a) (1976) permits federal courts to allow the commencement of actions without prepayment of fees by persons unable to afford the cost of litigation. It is plain to this Court that courts need an extra measure of authority when faced with actions proceeding in forma pauperis—particularly where the action is brought by a prisoner seeking damages. And it is this court's conclusion © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 that Congress has granted that extra authority by enacting 28 U.S.C. § 1915(d). intended to remove technical obstacles impeding access to the federal courts. This liberal approach contemplates litigants whose time and funds are limited. Jones v. Bales, 58 F.R.D. at 463–64. Prisoners proceeding IFP are not bound by the usual financial restraint on unwarranted litigation, and their expenditure of time in preparation for a lawsuit is often a relief from the tedium of prison life. 4 FJC Report, supra at 2. We keep firmly in mind the fact that the benefit of § 1915 is a privilege, not a right, Williams v. Field, 394 F.2d at 332, and that the court's “extra measure of authority” in dealing with § 1915 actions is necessary because frivolous suits unduly burden the courts, sometimes obscuring meritorious claims, occasion significant expenditures of public monies, and are a means by which plaintiffs can use the federal government to harass individual defendants. Holsey v. Bass, 519 F.Supp. at 406. In light of these special considerations we must analyze what is meant by “frivolous” *43 as that term is used in the statute. Some courts choose to equate the notion with the standard for dismissal under Rule 12(b)(6). See, e.g., Montana v. Commissioners Court, 659 F.2d 19, 21 (5th Cir.1981) (per curiam), cert. denied, 455 U.S. 1026, 102 S.Ct. 1730, 72 L.Ed.2d 147 (1982); Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir.1979). Others adopt the view that an action is frivolous if the plaintiff's realistic chances of ultimate success are slight. Sims v. Zolango, 481 F.Supp. 388, 391 n. 1 (S.D.N.Y.1979); Boston v. Stanton, 450 F.Supp. at 1053; Clark v. Zimmerman, 394 F.Supp. 1166, 1178 (M.D.Pa.1975); Louisiana ex rel. Purkey v. Ciolino, 393 F.Supp. 102, 106 (E.D.La.1975); Jones v. Bales, 58 F.R.D. at 464; see also Urbano v. Sondern, 370 F.2d 13, 14 (2d Cir.1966), cert. denied, 386 U.S. 1034, 87 S.Ct. 1485, 18 L.Ed.2d 596 (1967). One authority finds refuge in language used in Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967), which employs a definition akin to that used in Rule 12(b)(6) dismissal. See FJC Report, supra at 61. We think that those cases which adopt the Anders or Rule 12(b)(6) standard have overlooked significant distinctions between the considerations underlying the Federal Rules of Civil Procedure and those which gave rise to § 1915. The notice pleading principles embodied in Rules 8 and 12 are 450 F.Supp. at 1053; Boston v. Stanton, Jones v. Bales, 58 F.R.D. at 464. Section 1915, on the contrary, is a statute that creates affirmative conditions which must be met in order to receive a special benefit not granted to all—free access. As such it demands that attention be paid to the conservation of scarce judicial resources and the fundamentally different nature of much IFP litigation. It is closely analogous to other statutes which call for more stringent pleading standards than those contained in the Federal Rules, such as, for example, the habeas corpus statute, 28 U.S.C. § 2255 (1976). These statutes, like § 1915 and unlike the Federal Rules, are rooted in considerations of economy and protection. Harvey v. Clay County Sheriff's Department, 473 F.Supp. at 743–44; see also Jones v. Bales, 58 F.R.D. at 463–64. [4] In light of these distinctions we reject the notion that the Rule 12(b)(6) standard is the sole basis for dismissal under § 1915(d). The court in Boruski v. Stewart, 381 F.Supp. at 533, scanned the case law generally and noted § 1915 dismissals where the plaintiff is engaged in repeated litigation of issues already determined, the allegations of the complaint are “beyond credulity,” the complaint fails to state a claim upon which relief may be granted, or there is little chance of success on the merits in light of various defenses which may be asserted. We think the concept of “frivolous” embodied in § 1915(d) is broad enough to support a dismissal on any of these grounds. IV [5] [6] We consider the entire record in this case 5 , including defenses which have been or could be raised, see Urbano v. Sondern, 370 F.2d at 14; Holsey v. Bass, 519 F.Supp. at 408–11; Clark v. Zimmerman, 394 F.Supp. at 1178; Louisiana ex rel. Purkey, 393 F.Supp. at 108, 109– 10; Boruski v. Stewart, 381 F.Supp. at 533–35, in order to assess appellant's chances of success and to determine whether the district court abused its discretion, see Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir.) (per curiam), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 (1975), in dismissing the complaint. We note that leniency accorded pro se plaintiffs when attempting to understand the claims raised in often inartfully *44 worded complaints does not create a predisposition toward such plaintiffs in the substantive determination of whether their claims are frivolous. Collins v. Cundy, 603 F.2d at 827–28; Serna v. O'Donnell, 70 F.R.D. 618, 621 (W.D.Mo.1976). [7] To begin, plaintiffs have not alleged any facts which might give rise to an equal protection claim; all inmates were keeplocked on an institution-wide basis. Second, prisoners need not be afforded “procedural due process”—notice and a hearing—in every situation in which they are locked in their cells. For example, N.Y.Admin.Code tit. 7, § 251.6(f) (1979) provides that “all inmates ... in a facility may ... be confined in their cells ... for the duration of any period in which the safety or security of the facility is in jeopardy.” In Gilliard v. Oswald, 552 F.2d 456, 459 (2d Cir.1977), we ruled that where security is in doubt, the determination of what measures to pursue must be entrusted to the discretion and judgment of the prison superintendent. In the same vein, the Supreme Court recently remarked that “[t]he wide range of ‘judgment calls' that meet constitutional and statutory requirements are confided to officials outside the Judicial due to insufficient staffing at the Great Meadow facility against the inconvenience caused to plaintiffs by being confined to their cells for 12 hours on a single day. Whatever deprivation plaintiffs may have suffered does not rise to the level of a constitutional violation. A practice may be undesirable, yet still not so abusive as to violate a constitutional right. Sweet v. South Carolina Department of Corrections, 529 F.2d 854, 859 (4th Cir.1975); Scellato v. Department of Corrections, 438 F.Supp. 1206, 1207 (W.D.Va.), appeal dismissed sub nom, Scellato v. Zahradnick, 565 F.2d 158 (4th Cir.1977). [11] Anderson's appellate brief seems to imply that the Commissioner created the emergency situation in question by issuing a directive which gave all correction officers paid time off to attend the funeral. Government counsel argue that emotions were running at such a high pitch that the officers would have taken the day off with or without permission. We note that the defendant as an administrative officer is protected by the qualified defense of immunity available to officers of the executive branch of government who carry out the responsibilities of their office in good faith. See Scheuer v. Rhodes, 416 U.S. 232, 247–48, 94 S.Ct. 1683, 1691–1692, 40 L.Ed.2d 90 (1974). The dual Branch of Government.” Bell v. Wolfish, 441 U.S. 520, subjective-objective test of good faith in this context requires 562, 99 S.Ct. 1861, 1886, 60 L.Ed.2d 447 (1979). See that in order to be immune from damage actions the executive generally id. at 544–48, 99 S.Ct. at 1876–78. official must have had a good faith belief that he was acting properly and there must have been reasonable grounds for [8] [9] [10] The standard of review where there is a that belief in light of all the circumstances as they reasonably challenge to the sufficiency of the basis for an emergency appeared at the time. Wood v. Strickland, 420 U.S. 308, response must give the benefit of the doubt to the responsible 321, 95 S.Ct. 992, 1000, 43 L.Ed.2d 214 (1975); Scheuer administrative officials because it is unfair if not simply v. Rhodes, 416 U.S. at 247–48, 94 S.Ct. at 1691–1692; impossible for persons foreign to day-to-day involvement with the prison community later to reconstruct the conditions present at the time the emergency arose. Gilliard, 552 F.2d at 458 & n. 2. Prison authorities necessarily must be allowed wide discretion in the use of confinement for the purpose of protecting the safety and security of the prison and its general population. Id. at 459; United States ex rel. Walker v. Mancusi, 467 F.2d 51, 53 (2d Cir.1972). Thus, the prison superintendent's judgment in ordering confinement should prevail “absent a clear showing of gross abuse.” Gilliard, 552 F.2d at 459. No gross or even minimal abuse is present in this case. The facts reveal that a substantial number of guards intended to be absent from duty on the day of the funeral. Consequently, defendant was faced with balancing the potential for danger McKinnon v. *45 Patterson, 568 F.2d 930, 934 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). We think that there were reasonable grounds for the Commissioner's belief that he acted properly, and that the district court safely relied on these factors. Absent more than plaintiffs' bare assertion that defendant issued his directive with actual malice or in ignorance or disregard of settled, indisputable law regarding the constitutional rights of his charges, the immunity defense applies. See Wood v. Strickland, 420 U.S. at 321, 95 S.Ct. at 1000. Plaintiffs failed to indicate on what basis they concluded that the Commissioner violated this standard. In addition, the fact that officials acting for the defendant did not order keeplocks in the vast majority of the State's prisons lends support to the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 conclusion that the defendant was not acting with malice or in disregard of the law. Plaintiffs' reasonable chance of ultimate success on the merits of their claim is slight. This action is therefore frivolous under 28 U.S.C. § 1915(d), and the district court did not abuse its discretion in dismissing the complaint. We affirm. locked them in their cells....” On the other hand, Judge Kearse describes it as alleging a general “keeplock.” In the case of the former, the hypothesis arrived at is at variance with the actual issue, while in the case of the latter, the conclusion that a “keeplock” was alleged is drawn, not from the four corners of the complaint, but from the action of the district court and papers filed with us. In truth, there is almost no limit to the sets of facts which might be proven under Anderson's complaint if we are WINTER, Circuit Judge, concurring in the result: simply to let our imaginations run free. Indeed, claims [5] [6] [7] [8] [9] [10] [11] I concur in Part IV of of singling out for purposes of racial discrimination or Judge Cardamone's decision. Because I disagree with a legal punishment for the exercise of first amendment rights fit conclusion he draws in Part II and believe that much of the more comfortably within its language than the actual fact of discussion in Parts II and III is unnecessary, I state my reasons a general “keeplock.” for affirmance separately. First, I do not agree that the complaint is sufficient to survive a 12(b)(6) motion. The complaint states: Defendant is responsible for having petitioners illegally confined to their cells on May 21, 1981. He had no reason for action, did not charge plaintiff with any violations of NY State Law or afford them equal protection in procedural due process of the 14th Amendment US Constitution. I believe this conclusory allegation is not adequate as a matter of law. Apart from the word “illegally” and references to the Constitution, the complaint simply states that appellant was placed in his cell “for no reason.” There are no factual allegations that he was singled out for special punishment, was subjected to inhumane or specifically unreasonable treatment, or was the victim of defective procedures. Compare Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972) (pro se allegations of solitary confinement for disciplinary purposes in conditions which aggravated a pre-existing foot injury and circulatory ailment). The almost infinitely malleable nature of the complaint is demonstrated by the widely contrasting descriptions offered by my colleagues. On the one hand, Judge Cardamone hypothesizes that it may allege that “the Commissioner had personally singled plaintiffs out and for no reason whatever The complaint thus does not give notice of Anderson's claim. Judge Kearse is mistaken in viewing my position as requiring the plaintiff to anticipate and refute reasons which the defendant may offer to justify his actions. A federal constitutional claim relating to correctional decisions must allege a procedural defect, a “cruel and unusual” impact, or an impermissible motive. Anderson gives no notice as to which of these claims, if any, he is pursuing. In this situation, a defendant is not informed of what actions he or she must justify. The *46 defendant was able here to flesh out the complaint by affidavit attached to his 12(b)(6) motion, only because the events of May 21, 1981, had achieved statewide notoriety and had been previously litigated. My colleagues' opinions cite only very general authority to support their view of the sufficiency of the notice given by the complaint. I conclude, therefore, that on the facts the holding goes beyond any prior decision, a result at odds with Judge Cardamone's critical description of the problems arising from the extensive use—and misuse—of the privileges accorded by 28 U.S.C. § 1915(a) (1976). Those problems are not lessened by issuing an invitation to prisoners to file in forma pauperis complaints alleging that their cell doors were locked “illegally” and “for no reason.” The liberality accorded pro se pleadings does not relieve them wholly of the obligation to inform the court and their adversaries of the nature of their claim. The solicitude traditionally afforded pro se litigants can be preserved by liberality in allowing amendment. In my view, this complaint should have been dismissed sua sponte by the district court without service but with leave to amend. At this stage, however, I see no such prejudice arising out of the failure to give appellant notice in the district court that the © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 12(b)(6) motion would be treated as a motion for summary judgment as to call for a sua sponte reversal on those grounds. Appellant asks only that we rule on the underlying issue of law. He has stated the facts in his brief before us and his version poses the very issue of law decided by the district court. His brief states: On the 21st day of May, 1981, appellant was confined to his cell, as were the approximate one thousand prisoners in Great Meadow Correctional Facility, hereafter ‘G.M.C.F.’, Comstock, New York. This confinement was preplanned by appellee to facilitate and promote an obsequy for a recently slain guard, see p. 14 as Indexed. This pre-planned ‘General Lockdown’ was formulated at least 72 hours in advance, see appellants Exhibit A. Exhibit A is a newspaper account of the “keeplock.” With the parties in essential agreement as to the underlying facts, 1 the failure to give notice under 12(b)(6) is totally harmless. In my view, the “keeplock” does not amount to a violation of the Constitution. Appellant was not singled out for individualized disciplinary action and, therefore, notice and a hearing were not required. A one-day “keeplock” does not impose inhumane conditions such as to foreclose prison authorities from allowing guards to attend the funeral of a colleague who has been murdered by inmates. Attending the funeral may be a serious matter so far as the morale of the guards is concerned, and the decision taken was within the range of prison officials' discretion. I see no serious federal constitutional issue. See Gilliard v. Oswald, 552 F.2d 456 (2d Cir.1977). Whether other circumstances may justify a “keeplock” is not before us. I concur in the affirmance of the judgment. KEARSE, Circuit Judge, dissenting: With all due respect for the majority's views, I cannot concur in its judgment. In my view, the complaint could not properly be dismissed pursuant to Fed.R.Civ.P. 12(b)(6); the nature of the defendant's opposition to the claim raised issues of fact and made inappropriate, on the present record, a summary judgment pursuant to Fed.R.Civ.P. 56; and these factors plus proceedings in a related case demonstrate that appellant's claim could not properly be dismissed as frivolous pursuant to 28 U.S.C. § 1915(d) (1976). A. Inappropriateness of Rule 12(b)(6) Dismissal Plaintiff-appellant Fred M. Anderson is appealing from a judgment of the United *47 States District Court for the Northern District of New York dismissing his complaint pursuant to defendant's motion under Rule 12(b)(6). The complaint, filed under 42 U.S.C. § 1983 (1976), is succinct. It alleges that on May 21, 1981, Anderson, a prisoner at the Great Meadow Correctional Facility (“Great Meadow”) was confined to his cell (a process known as “keeplock”) by the action of defendant Thomas Coughlin, Commissioner of the New York State Department of Corrections (“Department”), without any reason and in violation of Anderson's rights under the Fourteenth Amendment to the Constitution. Judge Winter finds the complaint insufficient on its face, apparently because Anderson does not allege that he was “singled out” for the action alleged to have been irrational. 1 In my view if the keeplock was imposed for no reason, as alleged, the prisoner would have an arguable constitutional claim, whether he were the only prisoner so confined, or one of 22,000 so confined (as Coughlin originally ordered, see Part C infra), or one of some intermediate number so confined, as was actually the case. I therefore agree with Judge Cardamone that one cannot conclude, looking solely at the complaint, that it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief,” Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 101–102, 2 L.Ed.2d 80 (1957), and agree that Anderson's complaint could not properly be dismissed pursuant to Rule 12(b)(6), Haines v. Kerner, 404 U.S. 519, 521, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972). B. Inappropriateness of Summary Judgment © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 Although Coughlin's motion to dismiss was styled a Rule 12(b)(6) motion and the court stated that it granted the motion, it appears to me that what the district court did in substance was to grant summary judgment against Anderson. Coughlin's motion relied on facts that did not appear in the complaint but rather were raised in an affidavit of Coughlin's counsel. Thus, while the complaint alleged that there was no reason for the keeplock, the affidavit suggested that there were reasons: “non-punitive, administrative reasons occasioned by the temporary lack of sufficient correctional personnel to staff the facility on that day.” (Affidavit of Mary E. Bisantz, sworn to July 17, 1981, ¶ 3 (“Bisantz Aff.”).) The United States Magistrate to whom the matter was referred accepted Coughlin's representation, found that “the keeplock was a one-time occurrance [sic ] that was prompted by the guards attending a funeral service ...,” and concluded that “a sufficient justification existed for the administrative decision of this limited keeplock.” 2 Magistrate's Report dated Sept. *48 18, 1981, at 2. The magistrate recommended that Coughlin's motion be granted. The district court, after reviewing “all of the papers” in the record, District Court Order dated Oct. 19, 1981, at 1 (“Order”), approved the Magistrate's Report and dismissed the complaint, id. at 2. Thus, it clearly appears that the grounds for the dismissal were not found within the four corners of the complaint, and that the court instead rejected on the merits Anderson's contention that there was no reason for the keeplock, because it accepted Coughlin's assertion that he had a valid reason, namely a shortage of guards. Given the state of the record, this was an inappropriate use of the summary judgment device. As a general matter, issues as to the motive and intent with which actions were taken are not appropriate for determination on summary judgment. E.g., EEOC v. Home Insurance Co., 672 F.2d 252, 257 (2d Cir.1982); Schmidt v. McKay, 555 F.2d 30, 37 (2d Cir.1977). While complaints charging public officials with violation of a plaintiff's civil rights have been made more amenable than others to a summary and early determination where a defense of absolute or qualified (“good faith”) immunity is available, see Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 2737–39, 73 L.Ed.2d 396 (1982); Butz v. Economou, 438 U.S. 478, 507–08, 98 S.Ct. 2894, 2911–2912, 57 L.Ed.2d 895 (1978), 3 this hardly means that such a plaintiff should be denied all discovery, e.g., Harlow v. Fitzgerald, supra, 102 S.Ct. at 2740 (Brennan, J., concurring). A plaintiff normally should at least be permitted to obtain disclosure as to, for example, the existence vel non of the facts that the defendants claim motivated them. In the present case, so far as appears from the record before us, the court did not inform Anderson, pursuant to Rule 12(b), that it would treat Coughlin's Rule 12(b)(6) motion as one for summary judgment, 4 and I see no basis for believing that Anderson was given a reasonable opportunity to counter Coughlin's proffered reasons for the keeplock. The affidavit on which the dismissal was based asserted that there was a shortage of guards, but it did not state any facts as to the number of guards normally on duty at Great Meadow or the number available on May 21. Even leaving aside questions as to Coughlin's bona fides, 5 *49 therefore, at a minimum Anderson should have been given an opportunity to discover whether there was, as Coughlin asserted, a shortage of guards at Great Meadow on May 21. 6 Instead, Anderson was afforded no discovery whatever. The district court dismissed the complaint and simultaneously dismissed as moot all of Anderson's pending motions, Order at 2, apparently including an October 8, 1981 motion to compel Coughlin to answer interrogatories previously served. 7 On the present record, therefore, the district court could not properly grant summary judgment. C. Inappropriateness of a Finding of Frivolity Judge Cardamone imputes to the district court not an intention to grant summary judgment, but rather an intention to dismiss Anderson's complaint as frivolous under 28 U.S.C. § 1915(d). Section 1915(d) provides that in a proceeding in forma pauperis, such as the present action, the court “may dismiss the case ... if satisfied that the action is frivolous.” Even if I believed the imputation were correct, I would not hold the dismissal sustainable on this basis. First, I take issue with Judge Cardamone's conception of the nature of frivolity: it seems very nearly to equate frivolity with lack of merit. 8 thus, he states, ante at 41, that “[a]t whatever point it is clear that merit is lacking, the [in forma pauperis] action should be dismissed as frivolous under § 1915(d).” I would suppose that every claim that was © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 successfully defended could be said to have lacked merit; but that hardly means that it was frivolous. A claimant may ultimately lose, for example, on a claim on which he had previously won a preliminary injunction. Or he may successfully oppose a motion for a directed verdict although the trial judge confidently and accurately predicts that the jury will find against him. Or his claim may be rejected solely because of an affirmative defense such as the statute of limitations. While at some point it has become clear that the claimant's case lacked merit, it hardly seems appropriate to characterize *50 the claim as “frivolous.” In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the Supreme Court made clear that frivolity and lack of merit are not coextensive. There, the Court disapproved a state appellate procedure permitting an assigned attorney to withdraw from the appeal on the basis of his statement that the appeal would be without merit, but approved a withdrawal procedure that would be based on the attorney's statement that the appeal would be wholly frivolous. The Court stated that “legal points arguable on their merits” are “therefore not desired would be given the day off with pay so that they could attend the funeral. Flaherty v. Coughlin was commenced on May 20 by an inmate at the Clinton Correctional Facility on behalf of himself and others similarly situated, seeking a temporary restraining order against implementation of the keeplock directive. Flaherty, like Anderson in the present case, see note 5 supra, suggested that Coughlin's directive was not in fact responsive to an anticipated shortage of guards but rather was the cause of any anticipated shortage. Flaherty also contended that even with Coughlin's guarantee of pay for guards who took the day off to attend the funeral, Coughlin did not know how many guards would take advantage of the guarantee, and hence could not know that at any particular institution there would be a shortage of guards and a need for a keeplock. Second, although I would agree with Judge Cardamone that there are cases in which the complaint is sufficiently well drafted to withstand a Rule 12(b)(6) motion, but in which a lack of factual support will later transpire and make appropriate a dismissal without lengthy discovery or trial, I believe the latter part of that construct does not yet apply to this case. For the reasons stated in Part B above, I do not view the present record as delineating a case ripe for a determination on its merits, much less a determination that it is so devoid of arguable merit as to be considered frivolous. During the hearing on the motion, Judge Sweet suggested that Coughlin rescind his across-the-board order and instead assess the need for a keeplock on an institution-by-institution basis. Coughlin, through his counsel, opposed the suggestion. The court also suggested that Coughlin might rescind the directive insofar as it promised pay to absent guards, on the ground that the guarantee of pay would tend to encourage the guards' absence. Coughlin rejected the suggestion on the ground that, with the correctional officers' emotions running so high, it would be counterproductive to withdraw his promise of pay. Coughlin's counsel argued that the keeplock was not intended to punish the 22,000 inmates for Mrs. Payant's death, but the court found that “it certainly has that implication.” (May 20, 1981 hearing at 20.) The court suggested that Coughlin might be carrying out the collective intent of the correction officers to punish the inmates. (Id.) Finally, while I express no opinion as to the likelihood that Anderson would have succeeded on the merits, I view the proceedings in the related case of Flaherty v. Coughlin, 81 Civ. 3077 (S.D.N.Y. May 20, 1981), as demonstrating that claims within the ambit of Anderson's complaint raise legal points that are arguable on their merits. Litigation arising out of Coughlin's order of the May 21 keeplock thus encompasses a fundamental question as to whether the Commissioner of Corrections has the unfettered discretion to punish all inmates at all of New York's major prisons by a one-day *51 keeplock for the murder, by a person or persons unknown, of a guard at one of the frivolous.” Id. at 744, 87 S.Ct. at 1400. The events leading to the keeplock began on or about May 16, 1981, with the slaying of Donna Payant, a guard at the Green Haven Correctional Facility. On May 20, Coughlin issued a directive that on May 21, the day of the funeral, all prisoners in all major state correctional facilities (totaling some 22,000 inmates) would be confined to their cells for 12– 15 hours (in addition to the normal 10-hour confinement to their cells for sleeping purposes), and that all guards who so institutions. 9 I am unable to conclude, with my colleagues, that this is not even an arguable legal question. Ultimately, in Flaherty v. Coughlin, Judge Sweet granted a limited injunction. Having found, inter alia, that a keeplock without reason would deprive the prisoners of their rights (id. at 13) 10 and that there were substantial questions going to the merits (id.; id. at 24), the court granted the following injunctive order: © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 That the Commissioner is enjoined from instituting a keeplock except on an institution-by-institution basis arising out of emergency conditions or jeopardy to the safety or security of the institution; and further, he is directed to take all necessary action to minimize any conditions which might result in the imposition of a keeplock. (Id. at 26.) Coughlin's counsel's immediate response was, “I can tell you that this is not acceptable to the Department ....” (Id. at 27.) Notwithstanding his initial opposition, Coughlin apparently did make some sort of an institution-by-institution decision, with Great Meadow being one of three institutions in which the keeplock was imposed. It may well be demonstrable that the keeplock at Great Meadow was for nonpunitive reasons and was occasioned by the lack of security personnel, as Coughlin's counsel's affidavit in the present case has asserted. Or it may be that the punitive “implication” seen by Judge Sweet would be borne out if, for example, Coughlin failed to provide any facts to substantiate his assertion that there was a shortage of guards at Great Meadow. But in any event, it seems to me that Anderson's claim that the keeplock at Great Meadow was unreasonable presents arguable issues and hence cannot be considered frivolous. I would reverse the judgment dismissing Anderson's complaint and remand for appropriate further proceedings. All Citations 700 F.2d 37, 35 Fed.R.Serv.2d 1174 Footnotes 1 2 3 Mrs. Payant's husband was also a New York State correction officer, serving at the Clinton Correction Facility. In the Northern District prisoner civil rights complaints are deemed referred to the Magistrate upon delivery to him, without the need for individual referral orders in each case, see N.D.N.Y.R. 43(c)(4)(c), as is the recommended practice, see FJC Report, supra at 52. It is proper procedure to allow an in forma pauperis filing when the IFP papers are facially sufficient and then dismiss per 4 5 1 1 § 1915(d), even if the court had earlier determined that § 1915(d) dismissal was warranted. Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir.1975). Appellant is a prime example. During the brief period this action was before the district court he had six cases pending at the trial level and one awaiting appellate review. His familiarity with motion practice doubtless surpasses that of some members of the Bar. Court records in other actions may be considered as well. Van Meter v. Morgan, 518 F.2d 366, 368 (8th Cir.) (per curiam), cert. denied, 423 U.S. 896, 96 S.Ct. 198, 46 L.Ed.2d 129 (1975); Conway v. Oliver, 429 F.2d 1307, 1308 (9th Cir.1970) (per curiam); Williams v. Field, 394 F.2d at 332; United States of America ex rel. Masucci v. Follette, 272 F.Supp. 563, 565 (S.D.N.Y.1967). If there is a factual issue in this case, it is whether the Commissioner instigated the “keeplock” to encourage the guards to attend the funeral or had no choice in the face of a quasi “job action” by the guards. Since I regard this issue as legally irrelevant, I see no need for a trial. Judge Winter also views the complaint's allegation that there was “no reason” for the keeplock as impermissibly conclusory and suggests that the complaint should have been dismissed but with leave to amend. I disagree. [T]he function of a pleading in federal practice is to inform a party of the nature of the claims and defenses being asserted against him and the relief demanded by his adversary. The rules reflect a realization that the supposed effectiveness of pleadings in narrowing and defining the issues is largely a myth, this function being more effectively performed by discovery, summary judgment, and pretrial conferences. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 15 12 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 15 ... Von Mailath v. Order of Daughters of Divine Redeemer, D.C.Pa.1950, 10 F.R.D. 420 (development of facts should be accomplished through discovery and the like, and not by the exercise of discretion requiring additional pleadings). 5 C. Wright & A. Miller, Federal Practice and Procedure § 1182, at 12 (1969) (other footnote omitted). Here Anderson's conclusory pleading that there was “no reason” for the keeplock was adequate to give Coughlin notice of the claim against him. The rules do not require a plaintiff to elaborate on such a negative by setting up and knocking down in his pleading particular reasons that may be asserted by the defendant. 2 3 The magistrate relied on Johnson v. Coughlin, 81 Civ. 901 (N.D.N.Y. Aug. 25, 1981), dismissing a § 1983 complaint by other inmates of Great Meadow that challenged the same keeplock and alleged that the reason for the keeplock was to allow guards to attend the funeral of a fellow guard. Judge Foley dismissed the Johnson complaint on the ground that it did not state a claim that rose to a constitutional level. The majority's discussions of the defense of qualified immunity, opinion of Cardamone, J., ante at 44–45, and the bona fides of prison officials' decisions to improve the morale of the prison guards, opinion of Winter, J., ante at 45–46, are premature. “Qualified or ‘good faith’ immunity is an affirmative defense that must be pleaded by a defendant official,” 4 5 6 Harlow v. Fitzgerald, supra, 102 S.Ct. at 2737, and the burden of establishing this affirmative defense is on the defendant, see id. at 2739; cf. id. at 2735–36. Coughlin has not filed an answer, and the conclusory assertion in his counsel's affidavit on the Rule 12(b)(6) motion would hardly suffice to sustain his burden of proof. I also find premature the majority's reliance on Gilliard v. Oswald, 552 F.2d 456 (2d Cir.1977), for the proposition that the one-day keeplock at issue here does not give rise to a constitutional claim. Gilliard involved an initial prisonwide keeplock, followed by the keeplock of some 140 prisoners, in the course of an investigation into repeated assaults by prison inmates on other inmates. Whatever the views of the Gilliard majority as to the appropriate scope of prison officials' discretion to order a keeplock in those circumstances, and whatever the applicability of those views to the broader but shorter keeplock imposed here, it must at least be recognized that Gilliard was decided after a trial. There was no suggestion that the case should have been dismissed on summary judgment or as “frivolous” at some early stage. Rule 12(b) provides in part as follows: If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Questions have been raised as to Coughlin's good faith, both in this and in related litigation. Here Anderson contends in his brief on appeal, as he did in a memorandum filed in the district court, that in fact there was no emergency shortage of guards until Coughlin himself instigated the shortage by means of a statewide directive, see Part C infra, that prompted guards to take the day of May 21 off with full pay to attend the funeral of a slain fellow guard. In the related case of Flaherty v. Coughlin, 81 Civ. 3077 (S.D.N.Y. May 20, 1981), Flaherty raised this and other arguments, and at the hearing on Flaherty's motion for injunctive relief, Judge Sweet stated that Coughlin's directive carried the implication of a punitive intent. (May 20, 1981 hearing at 20.) In a later hearing in Flaherty, Coughlin's counsel argued that as a matter of law Coughlin's actions were within the scope of his discretion, but even he described them as “perhaps questionable actions.” (Jan. 13, 1982 hearing at 4.) At that hearing Judge Brieant stated, “Now, maybe this case is amenable to summary judgment, maybe. I doubt it.” (Id. at 17.) The majority states that [t]he facts reveal that a substantial number of guards intended to be absent from duty on the day of the funeral. Consequently, defendant was faced with balancing the potential for danger due to insufficient staffing at the Great Meadow facility.... © 2020 Thomson Reuters. No claim to original U.S. Government Works. 13 Anderson v. Coughlin, 700 F.2d 37 (1983) 35 Fed.R.Serv.2d 1174 7 8 9 10 Opinion of Cardamone, J., ante at 44. I have found in the record no evidence as to the number of guards who “intended” to be absent from Great Meadow, the number who were absent, or the number normally on duty. I think the context of the events preceding the May 21 keeplock should lead the court to exercise more, not less, than its usual amount of caution in dealing with conclusory allegations such as those advanced here by Coughlin's counsel. As discussed in Part C infra, Coughlin originally had ordered the one-day keeplock of all prisoners in all major penal institutions in the state. After he was enjoined in Flaherty v. Coughlin, supra, to make his decision on an institution-by-institution basis to avoid keeplocks that were unnecessary (an injunction to which he vigorously objected), it apparently turned out that at at least twelve of those fifteen institutions there was not such a shortage of guards as to warrant the keeplock. The court should at least require disclosure of the facts as to whether or not there was such a shortage at Great Meadow. The interrogatories apparently included questions as to why the keeplock was imposed and how the decision to impose it was reached. I also find unsound the suggestion that because § 1915(d) governs in forma pauperis litigation it calls for “more stringent pleading standards than those contained in the Federal Rules.” Opinion of Cardamone, J., ante at 43 (emphasis added). When an in forma pauperis litigant proceeds pro se, as Anderson does here, his pleading must be given the benefit of the doubt. Haines v. Kerner, supra. Coughlin's counsel's affidavit in support of the motion to dismiss the complaint in the present case argued that “[e]ven punitive segregation for merely one day would not be a violation of an inmate's constitutional rights” (Bisantz Aff. ¶ 3), relying on McKinnon v. Patterson, 568 F.2d 930 (2d Cir.1977), cert. denied, 434 U.S. 1087, 98 S.Ct. 1282, 55 L.Ed.2d 792 (1978). McKinnon hardly answers the question posed here, however, since the punitive keeplock in McKinnon was imposed on prisoners whose own conduct arguably merited punishment. Coughlin's counsel concurred in this view: THE COURT: ... [T]he placing of keeplock, the deprivation of normal routine, prison routines, does constitute a deprivation of a right. You don't really argue with that? Let's assume it was totally irrational, it would be a deprivation, don't you agree? MR. RYAN [Attorney for Coughlin]: Yes, Your Honor. (Id.) End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... KeyCite Yellow Flag - Negative Treatment Not Followed on State Law Grounds Combs v. ICG Hazard, LLC, E.D.Ky., March 21, 2013 127 S.Ct. 1955 Supreme Court of the United States BELL ATLANTIC CORPORATION et al., Petitioners, v. William TWOMBLY et al. No. 05–1126. | Argued Nov. 27, 2006. | Decided May 21, 2007. [4] consumers' allegations of parallel conduct were insufficient to state a claim. Judgment of the Court of Appeals reversed and remanded. Justice Stevens filed a dissenting opinion in which Justice Ginsburg joined in part. Procedural Posture(s): Motion to Dismiss. West Headnotes (18) [1] Antitrust and Trade Regulation Cartels, Combinations, Contracts, and Conspiracies in General Synopsis Background: Consumers brought putative class action against incumbent local exchange carriers (ILECs) alleging antitrust conspiracy, in violation of the Sherman Act, both to prevent competitive entry into local telephone and Internet service markets and to avoid competing with each other in their respective markets. The United States District Court for Because Sherman Act's restraint of trade provision does not prohibit all unreasonable restraints of trade but only restraints effected by a contract, combination, or conspiracy, the crucial question is whether the challenged anticompetitive conduct stems from independent decision or from an agreement, tacit or express. the Southern District of New York, Gerard Lynch, J., 313 F.Supp.2d 174, dismissed complaint for failure to state a claim upon which relief could be granted. The United States Court Sherman Act, § 1, of Appeals for the Second Circuit, 425 F.3d 99, reversed. The Supreme Court granted certiorari. 155 Cases that cite this headnote [2] [1] stating a claim under Sherman Act's restraint of trade provision requires a complaint with enough factual matter, taken as true, to suggest that an agreement was made; restraint of trade provision. Sherman Act, § 1, 15 U.S.C.A. § 1. [2] an allegation of parallel business conduct and a bare assertion of conspiracy will not alone suffice to state a claim under the Sherman Act; would entitle him to relief, abrogating Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80; and Antitrust and Trade Regulation Admissibility While a showing of parallel business behavior is admissible circumstantial evidence from which the fact finder may infer agreement, it falls short of conclusively establishing agreement or itself constituting an offense under the Sherman Act's Holdings: The Supreme Court, Justice Souter, held that: [3] dismissal for failure to state a claim upon which relief may be granted does not require appearance, beyond a doubt, that plaintiff can prove no set of facts in support of claim that 15 U.S.C.A. § 1. 33 Cases that cite this headnote [3] Antitrust and Trade Regulation Cartels, Combinations, Contracts, and Conspiracies in General Conscious parallelism with respect to business behavior, a common reaction of firms in a concentrated market that recognize their shared economic interests and their interdependence © 2020 Thomson Reuters. No claim to original U.S. Government Works. 1 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... with respect to price and output decisions, is not in itself unlawful under Sherman Act's restraint of trade provision. Sherman Act, U.S.C.A. § 1. § 1, factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. 15 46 Cases that cite this headnote [4] Antitrust and Trade Regulation Cartels, Combinations, Contracts, and Conspiracies in General 144872 Cases that cite this headnote [8] An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct on part of defendants is not entitled to a directed verdict. Sherman Act, § 1, 15 U.S.C.A. § 1. To survive a motion to dismiss for failure to state a claim upon which relief can be granted, factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true even if doubtful in fact. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. Antitrust and Trade Regulation Restraints and misconduct in general Proof of a conspiracy under Sherman Act's restraint of trade provision must include evidence tending to exclude the possibility of independent action. Sherman Act, U.S.C.A. § 1. § 1, 15 161872 Cases that cite this headnote [9] Federal Civil Procedure price discrimination cases Antitrust and At the summary judgment stage, an offer of conspiracy evidence by a plaintiff alleging violation of Sherman Act's restraint of trade provision must tend to rule out the possibility that the defendants were acting independently. Sherman Act, § 1, 15 U.S.C.A. § 1. 102 Cases that cite this headnote [7] Federal Civil Procedure in general Claim for relief Federal Civil Procedure general Insufficiency in While a complaint attacked by a motion to dismiss for failure to state a claim upon which relief can be granted does not need detailed Federal Civil Procedure in general Claim for relief While, for most types of cases, the Federal Rules eliminated the cumbersome requirement that a claimant set out in detail the facts upon which he bases his claim, the general rule governing pleadings still requires a showing, rather than a blanket assertion, of entitlement to relief; without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only fair notice of the nature of the claim, but also grounds on which the claim rests. Fed.Rules Civ.Proc.Rule 8(a)(2), 28 U.S.C.A. 28 Cases that cite this headnote [6] Insufficiency in Federal Civil Procedure Matters deemed admitted;  acceptance as true of allegations in complaint 39 Cases that cite this headnote [5] Federal Civil Procedure general 26504 Cases that cite this headnote [10] Antitrust and Trade Regulation Conspiracy or combination Stating a claim under Sherman Act's restraint of trade provision requires a complaint with enough factual matter, taken as true, to suggest that an agreement was made; asking for plausible grounds to infer an agreement does not impose a © 2020 Thomson Reuters. No claim to original U.S. Government Works. 2 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... Federal Civil Procedure nature of insufficiency probability requirement at the pleading stage, but simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. Sherman Act, U.S.C.A. § 1. § 1, Dismissal for failure to state a claim upon which relief may be granted does not require appearance, beyond a doubt, that plaintiff can prove no set of facts in support of claim that would entitle him to relief, although once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint; abrogating 15 18995 Cases that cite this headnote [11] Federal Civil Procedure nature of insufficiency Clear or certain Clear or certain Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. Fed.Rules Civ.Proc.Rule 12(b)(6), 28 U.S.C.A. A well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely. 45868 Cases that cite this headnote 6133 Cases that cite this headnote [15] [12] Antitrust and Trade Regulation Conspiracy or combination Consumers' allegations that, by virtue of parallel conduct, incumbent local exchange carriers (ILECs) entered into a contract, combination, or conspiracy to prevent competitive entry into their local telephone and Internet service markets, and agreed not to compete with one another, failed to state claim for violation of Sherman Act's restraint of trade provision, as claim essentially rested on descriptions of parallel conduct and not on any independent allegation of actual An allegation of parallel business conduct and a bare assertion of conspiracy will not suffice to state a claim under Sherman Act's restraint of trade provision; without more, parallel conduct does not suggest conspiracy, and a conclusory allegation of agreement at some unidentified point does not supply facts adequate to show illegality. Sherman Act, § 1. § 1, 15 U.S.C.A. agreement among the ILECs. Sherman Act, 1266 Cases that cite this headnote [13] 1, action. Sherman Act, § 1, [16] Federal Civil Procedure in general 15 U.S.C.A. § 1. Evidence Historical facts Where antitrust complaint quoted portion of statement of one defendant's chief executive officer (CEO) to suggest that defendants conspired together, district court was entitled to take notice of the full contents of the published articles referenced in the complaint, from which the truncated quotations were drawn. Fed.Rules Evid.Rule 201, 28 U.S.C.A. 15 U.S.C.A. § 1. 505 Cases that cite this headnote [14] § 328 Cases that cite this headnote Antitrust and Trade Regulation Conspiracy or combination When allegations of parallel conduct are set out in order to make a claim under the Sherman Act's restraint of trade provision, they must be placed in a context that raises a suggestion of a preceding agreement, not merely parallel conduct that could just as well be independent Antitrust and Trade Regulation Conspiracy or combination 416 Cases that cite this headnote Claim for relief [17] Federal Civil Procedure Procedure © 2020 Thomson Reuters. No claim to original U.S. Government Works. Rules of Civil 3 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... Broadening of a Federal Rule of Civil Procedure can only be accomplished by the process of amending the Federal Rules, and not by judicial interpretation. 103 Cases that cite this headnote [18] Federal Civil Procedure Certainty, Definiteness and Particularity On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than that required by general rule governing pleadings. Fed.Rules Civ.Proc.Rules 8, 9(b–c), 28 U.S.C.A. 164 Cases that cite this headnote in parallel conduct in their respective service areas to inhibit the growth of upstart CLECs; and (2) by agreeing to refrain from competing against one another, as indicated by their common failure to pursue attractive business opportunities in contiguous markets and by a statement by one ILEC's chief executive officer that competing in another ILEC's territory did not seem right. The District Court dismissed the complaint, concluding that parallel business conduct allegations, taken alone, do not state a claim under § 1; plaintiffs must allege additional facts tending to exclude independent self-interested conduct as an explanation for the parallel actions. Reversing, the Second Circuit held that plaintiffs' parallel conduct allegations were sufficient to withstand a motion to dismiss because the ILECs failed to show that there is no set of facts that would permit plaintiffs to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence. *545 Held: **1958 *544 Syllabus * The 1984 divestiture of the American Telephone & Telegraph Company's (AT & T) local telephone business left a system of regional service monopolies, sometimes called Incumbent Local Exchange Carriers (ILECs), and a separate longdistance market from which the ILECs were excluded. The Telecommunications Act of 1996 withdrew approval of the ILECs' monopolies, “fundamentally restructur[ing] local telephone markets” and “subject[ing] [ILECs] to a host of duties intended to facilitate market entry.” AT & T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 142 L.Ed.2d 835. It also authorized them to enter the long-distance market. “Central to the [new] scheme [was each ILEC's] obligation ... to share its network with” competitive local exchange carriers (CLECs). Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 402, 124 S.Ct. 872, 157 L.Ed.2d 823. Respondents (hereinafter plaintiffs) represent a class of subscribers of local telephone and/or high–speed Internet services in this action against petitioner ILECs for claimed violations of § 1 of the Sherman Act, which prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” The complaint alleges that the ILECs conspired to restrain trade (1) by engaging 1. Stating a § 1 claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. An allegation of parallel conduct and a bare assertion of conspiracy will not suffice. Pp. 1963 – 1970. (a) Because § 1 prohibits “only restraints effected by a contract, combination, or conspiracy,” Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775, 104 S.Ct. 2731, 81 L.Ed.2d 628, “[t]he crucial question” is whether the challenged anticompetitive conduct “stem[s] from independent decision or from an agreement,” Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 540, 74 S.Ct. 257, 98 L.Ed. 273. While a showing of parallel “business behavior is admissible circumstantial evidence from which” agreement may be inferred, it falls short of “conclusively establish[ing] agreement or ... itself constitut[ing] a Sherman Act offense.” Id., at 540– 541, 74 S.Ct. 257. The inadequacy of showing parallel conduct or interdependence, without more, **1959 mirrors the behavior's ambiguity: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. Thus, this Court has hedged against false inferences from identical behavior at a number of points in the trial sequence, e.g., at the summary judgment stage, see Matsushita Elec. Industrial Co. v. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 4 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538. Pp. 1963 – 1964. (b) This case presents the antecedent question of what a plaintiff must plead in order to state a § 1 claim. Federal Rule of Civil Procedure 8(a)(2) requires only “a short and plain statement of the claim showing that the pleader is entitled to relief,” in order to “give the defendant fair notice of what the ... claim is and the grounds upon which it rests,” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80. While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ibid., a plaintiff's obligation to provide the “grounds” of his “entitle[ment] to relief” requires more than labels and conclusions, and a formulaic recitation of a cause of action's elements will not do. Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the complaint's allegations are true. Applying these general standards to a § 1 claim, stating a claim requires a complaint with enough factual matter to suggest an agreement. Asking for plausible grounds does not impose a probability requirement at the pleading stage; it simply calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. The need at the pleading stage for allegations plausibly suggesting (not merely consistent with) agreement reflects Rule 8(a)(2)'s threshold requirement that the “plain statement” possess enough heft to “sho[w] that the pleader is entitled to relief.” A parallel *546 conduct allegation gets the § 1 complaint close to stating a claim, but without further factual enhancement it stops short of the line between possibility and plausibility. The requirement of allegations suggesting an agreement serves the practical purpose of preventing a plaintiff with “ ‘a largely groundless claim’ ” from “ ‘tak[ing] up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.’ ” Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577. It is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, but quite another to forget that proceeding to antitrust discovery can be expensive. That potential expense is obvious here, where plaintiffs represent a putative class of at least 90 percent of subscribers to local telephone or high-speed Internet service in an action against America's largest telecommunications firms for unspecified instances of antitrust violations that allegedly occurred over a 7–year period. It is no answer to say that a claim just shy of plausible entitlement can be weeded out early in the discovery process, given the common lament that the success of judicial supervision in checking discovery abuse has been modest. Plaintiffs' main argument against the plausibility standard at the pleading stage is its ostensible conflict with a literal reading of Conley's statement construing Rule 8: “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.” 355 U.S., at 45–46, 78 S.Ct. 99. The “no set of facts” language has been questioned, criticized, and explained away long enough by courts and commentators, **1960 and is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. Conley described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival. Pp. 1964 – 1970. 2. Under the plausibility standard, plaintiffs' claim of conspiracy in restraint of trade comes up short. First, the complaint leaves no doubt that plaintiffs rest their § 1 claim on descriptions of parallel conduct, not on any independent allegation of actual agreement among the ILECs. The nub of the complaint is the ILECs' parallel behavior, and its sufficiency turns on the suggestions raised by this conduct when viewed in light of common economic experience. Nothing in the complaint invests either the action or inaction alleged with a plausible conspiracy suggestion. As to the ILECs' supposed agreement to disobey the 1996 Act and thwart the CLECs' attempts to compete, the District Court correctly found that nothing in the complaint intimates that resisting the upstarts was anything more than the natural, unilateral reaction of each *547 ILEC intent on preserving its regional dominance. The complaint's general collusion premise fails to answer the point that there was no need for joint encouragement to resist the 1996 Act, since each ILEC had reason to try to avoid dealing with CLECs and would have tried to keep them out, regardless of the other ILECs' actions. Plaintiffs' second conspiracy theory rests on the competitive reticence among the ILECs themselves in the wake of the 1996 Act to enter into their competitors' territories, leaving the relevant market highly compartmentalized geographically, with minimal competition. This parallel conduct did not suggest conspiracy, not if history teaches anything. Monopoly was the norm in telecommunications, not the exception. Because the ILECs were born in that world, doubtless liked © 2020 Thomson Reuters. No claim to original U.S. Government Works. 5 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... it, and surely knew the adage about him who lives by the sword, a natural explanation for the noncompetition is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same. Antitrust conspiracy was not suggested by the facts adduced under either theory of the complaint, which thus fails to state a valid § 1 claim. This analysis does not run counter to Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, 122 S.Ct. 992, 152 L.Ed.2d 1, which held that “a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination.” Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face. Because the plaintiffs here have not nudged their claims across the line from conceivable to plausible, their complaint must be dismissed. Pp. 1970 – 1974. 425 F.3d 99, reversed and remanded. SOUTER, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA, KENNEDY, THOMAS, BREYER, and ALITO, JJ., joined. STEVENS, J., filed a dissenting opinion, in which GINSBURG, J., joined, except as to Part IV, post, p. 1974. Attorneys and Law Firms Stephen M. Shapiro, Kenneth S. Geller, Richard J. Favretto, Mayer, Brown, Rowe & Maw LLP, Washington, D.C., Laura J. Coleman, J. Henry Walker, Marc W.F. Galonsky, Ashley Watson, Atlanta, Georgia, for BellSouth Corporation. Timothy Beyer, Brownstein Hyatt & Farber, P.C., Denver, Colorado, **1961 Cynthia P. Delaney, Denver, Colorado, Counsel for Qwest Communications International Inc. Michael K. Kellogg, Mark C. Hansen, Aaron M. Panner, Kellogg, Huber, Hansen, Todd, Evans & Figel, P.L.L.C., Washington, D.C., Javier Aguilar, William M. Schur, San Antonio, Texas, for AT&T Inc. (formerly SBC Communications Inc.). Richard G. Taranto, Farr & Taranto, Washington, D.C., Paul J. Larkin, Jr., David E. Wheeler, Robert J. Zastrow, Arlington, Virginia, Dan K. Webb, Charles B. Molster III, Winston & Strawn LLP, Chicago, Illinois, for Verizon Communications Inc. (successor-in-interest to Bell Atlantic Corporation). Marc A. Topaz, Joseph H. Meltzer, Schiffrin & Barroway, LLP, Radnor, PA, J. Douglas Richards, Michael M. Buchman, Milberg Weiss Bershad & Schulman LLP, New York, NY, for Respondents. Opinion Justice SOUTER delivered the opinion of the Court. *548 Liability under § 1 of the Sherman Act, 15 U.S.C. § 1, requires a “contract, combination ..., or conspiracy, in restraint of trade or commerce.” The question in this putative class action is whether a § 1 complaint can survive a motion to dismiss when it alleges that major telecommunications providers engaged in certain parallel conduct unfavorable to *549 competition, absent some factual context suggesting agreement, as distinct from identical, independent action. We hold that such a complaint should be dismissed. I The upshot of the 1984 divestiture of the American Telephone & Telegraph Company's (AT & T) local telephone business was a system of regional service monopolies (variously called “Regional Bell Operating Companies,” “Baby Bells,” or “Incumbent Local Exchange Carriers” (ILECs)), and a separate, competitive market for long-distance service from which the ILECs were excluded. More than a decade later, Congress withdrew approval of the ILECs' monopolies by enacting the Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, which “fundamentally restructure[d] local telephone markets” and “subject[ed] [ILECs] to a host of duties intended to facilitate market entry.” AT & T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 371, 119 S.Ct. 721, 142 L.Ed.2d 835 (1999). In recompense, the 1996 Act set conditions for authorizing ILECs to enter the long-distance market. See 47 U.S.C. § 271. “Central to the [new] scheme [was each ILEC's] obligation ... to share its network with competitors,” Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 402, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004), which came to be known as “competitive local exchange carriers” (CLECs), Pet. for Cert. 6, n. 1. A CLEC could make use of an ILEC's network in any of © 2020 Thomson Reuters. No claim to original U.S. Government Works. 6 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... three ways: by (1) “purchas[ing] local telephone services at wholesale rates for resale to end users,” (2) “leas[ing] elements of the [ILEC's] network ‘on an unbundled basis,’ ” or (3) “interconnect[ing] its own facilities with the [ILEC's] network.” Iowa Utilities Bd., supra, at 371, 119 S.Ct. 721 (quoting 47 U.S.C. § 251(c)). Owing to the “considerable expense and effort” required to make unbundled network elements available to rivals at wholesale prices, Trinko, supra, at 410, 124 S.Ct. 872, the ILECs vigorously litigated the scope of the sharing obligation imposed by the 1996 Act, with the result that the Federal Communications Commission (FCC) three times *550 revised **1962 its regulations to narrow the range of network elements to be shared with the CLECs. See Covad Communications Co. v. FCC, 450 F.3d 528, 533–534 (C.A.D.C.2006) (summarizing the 10–year– long regulatory struggle between the ILECs and CLECs). Respondents William Twombly and Lawrence Marcus (hereinafter plaintiffs) represent a putative class consisting of all “subscribers of local telephone and/or high speed internet services ... from February 8, 1996 to present.” Amended Complaint in No. 02 CIV. 10220(GEL) (SDNY) ¶ 53, App. 28 (hereinafter Complaint). In this action against petitioners, a group of ILECs, 1 plaintiffs seek treble damages and declaratory and injunctive relief for claimed violations of § 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. § 1, which prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” The complaint alleges that the ILECs conspired to restrain trade in two ways, each supposedly inflating charges for local telephone and high-speed Internet services. Plaintiffs say, first, that the ILECs “engaged in parallel conduct” in their respective service areas to inhibit the growth of upstart CLECs. Complaint ¶ 47, App. 23–26. Their actions allegedly included making unfair agreements with the CLECs for access to ILEC networks, providing inferior connections to the networks, overcharging, and billing in ways designed to sabotage the CLECs' relations with their own customers. Ibid. According to the complaint, the ILECs' *551 “compelling common motivatio[n]” to thwart the CLECs' competitive efforts naturally led them to form a conspiracy; “[h]ad any one [ILEC] not sought to prevent CLECs ... from competing effectively ..., the resulting greater competitive inroads into that [ILEC's] territory would have revealed the degree to which competitive entry by CLECs would have been successful in the other territories in the absence of such conduct.” Id., ¶ 50, App. 26–27. Second, the complaint charges agreements by the ILECs to refrain from competing against one another. These are to be inferred from the ILECs' common failure “meaningfully [to] pursu[e]” “attractive business opportunit[ies]” in contiguous markets where they possessed “substantial competitive advantages,” id., ¶¶ 40–41, App. 21–22, and from a statement of Richard Notebaert, chief executive officer (CEO) of the ILEC Qwest, that competing in the territory of another ILEC “ ‘might be a good way to turn a quick dollar but that doesn't make it right,’ ” id., ¶ 42, App. 22. The complaint couches its ultimate allegations this way: “In the absence of any meaningful competition between the [ILECs] in one another's markets, and in light of the parallel course of conduct that each engaged in to prevent competition from CLECs within their respective local telephone and/or high speed internet services markets and the other facts and market circumstances alleged above, Plaintiffs allege upon information **1963 and belief that [the ILECs] have entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.” Id., ¶ 51, App. 27. 2 *552 The United States District Court for the Southern District of New York dismissed the complaint for failure to state a claim upon which relief can be granted. The District Court acknowledged that “plaintiffs may allege a conspiracy by citing instances of parallel business behavior that suggest an agreement,” but emphasized that “while ‘[c]ircumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy[, ...] “conscious parallelism” has not yet read conspiracy out of the Sherman Act entirely.’ ” 313 F.Supp.2d 174, 179 (2003) (quoting Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 98 L.Ed. 273 (1954); alterations in original). Thus, the District Court understood that allegations of parallel business conduct, taken alone, do not state a claim under § 1; plaintiffs must allege additional facts that “ten[d] to exclude independent self-interested conduct as an explanation for © 2020 Thomson Reuters. No claim to original U.S. Government Works. 7 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... defendants' parallel behavior.” 313 F.Supp.2d, at 179. The District Court found plaintiffs' allegations of parallel ILEC actions to discourage competition inadequate because “the behavior of each ILEC in resisting the incursion of CLECs is fully explained by the ILEC's own interests in defending its agreement, tacit or express,” Theatre Enterprises, 346 U.S., at 540, 74 S.Ct. 257. While a showing of parallel “business behavior is admissible circumstantial evidence from which the fact finder may infer agreement,” it falls short of “conclusively establish[ing] agreement or ... itself individual territory.” Id., at 183. As to the ILECs' supposed agreement against competing with each other, the District Court found that the complaint does not “alleg[e] facts ... suggesting that refraining from competing in other territories as CLECs was contrary to [the ILECs'] apparent economic interests, and consequently [does] not rais[e] an inference that constitut[ing] a Sherman Act offense.” Id., at 540–541, 74 S.Ct. 257. Even “conscious parallelism,” a common reaction of “firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions” *554 is “not in itself [the ILECs'] actions were the result of a conspiracy.” at 188. Id., *553 The Court of Appeals for the Second Circuit reversed, holding that the District Court tested the complaint by the wrong standard. It held that “plus factors are not required to be pleaded to permit an antitrust claim based on parallel conduct to survive dismissal.” 425 F.3d 99, 114 (2005) (emphasis in original). Although the Court of Appeals took the view that plaintiffs must plead facts that “include conspiracy among the realm of ‘plausible’ possibilities in order to survive a motion to dismiss,” it then said that “to rule that allegations of parallel anticompetitive conduct fail to support a plausible conspiracy claim, a court would have to conclude that there is no set of facts that would permit a plaintiff to demonstrate that the particular parallelism asserted was the product of collusion rather than coincidence.” Ibid. We granted certiorari to address the proper standard for pleading an antitrust conspiracy through allegations of parallel conduct, 548 U.S. 903, 126 S.Ct. 2965, 165 L.Ed.2d 949 (2006), and now reverse. unlawful.” Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 227, 113 S.Ct. 2578, 125 L.Ed.2d 168 (1993); see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶ 1433a, p. 236 (2d ed.2003) (hereinafter Areeda & Hovenkamp) (“The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act § 1”); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75 Harv. L.Rev. 655, 672 (1962) (“[M]ere interdependence of basic price decisions is not conspiracy”). [4] [5] [6] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g., AEI–Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related Publication 06– 08, pp. 3–4 (2006) (discussing problem of “false positives” **1964 II in § 1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre A Enterprises, supra; proof of a § 1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray–Rite Service Corp., [1] [2] [3] Because § 1 of the Sherman Act “does not 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984); and prohibit [all] unreasonable restraints of trade ... but only restraints effected by a contract, combination, or conspiracy,” at the summary judgment stage a § 1 plaintiff's offer of conspiracy evidence must tend to rule out the possibility that Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 775, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984), “[t]he the defendants were acting independently, see Matsushita crucial question” is whether the challenged anticompetitive Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 conduct “stem[s] from independent decision or from an S.Ct. 1348, 89 L.Ed.2d 538 (1986). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 8 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... fact to raise a reasonable expectation that discovery will reveal evidence of illegal agreement. 4 And, of course, a wellpleaded complaint may proceed even if it strikes a savvy B judge that actual proof of those facts is improbable, and “that [7] [8] [9] This case presents the antecedent question a recovery is very remote and unlikely.” Ibid. In identifying of what a plaintiff must plead in order to state a claim facts that are suggestive enough to render a § 1 conspiracy under § 1 of the *555 Sherman Act. Federal Rule of Civil plausible, we have the benefit **1966 of the prior rulings Procedure 8(a)(2) requires only “a short and plain statement and considered views of leading commentators, already of the claim showing that the pleader is entitled to relief,” quoted, that lawful parallel conduct fails to bespeak unlawful in order to “give the defendant fair notice of what the ... agreement. It makes sense to say, therefore, that an allegation claim is and the grounds upon which it rests,” Conley of parallel conduct and a bare assertion of conspiracy will v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 not suffice. Without *557 more, parallel conduct does not (1957). While a complaint attacked by a Rule 12(b)(6) motion suggest conspiracy, and a conclusory allegation of agreement to dismiss does not need detailed factual allegations, ibid.; at some unidentified point does not supply facts adequate to Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., show illegality. Hence, when allegations of parallel conduct 40 F.3d 247, 251 (C.A.7 1994), a plaintiff's obligation to are set out in order to make a § 1 claim, they must be provide the **1965 “grounds” of his “entitle[ment] to relief” placed in a context that raises a suggestion of a preceding requires more than labels and conclusions, and a formulaic agreement, not merely parallel conduct that could just as well recitation of the elements of a cause of action will not do, be independent action. see Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to dismiss, courts “are The need at the pleading stage for allegations plausibly not bound to accept as true a legal conclusion couched as suggesting (not merely consistent with) agreement reflects a factual allegation”). Factual allegations must be enough the threshold requirement of Rule 8(a)(2) that the “plain to raise a right to relief above the speculative level, see 5 statement” possess enough heft to “sho[w] that the pleader C. Wright & A. Miller, Federal Practice and Procedure § is entitled to relief.” A statement of parallel conduct, 1216, pp. 235–236 (3d ed.2004) (hereinafter Wright & Miller) even conduct consciously undertaken, needs some setting (“[T]he pleading must contain something more ... than ... suggesting the agreement necessary to make out a § 1 a statement of facts that merely creates a suspicion [of] a claim; without that further circumstance pointing toward a legally cognizable right of action”), 3 on the assumption that meeting of the minds, an account of a defendant's commercial all the allegations in the complaint are true (even if doubtful efforts stays in neutral territory. An allegation of parallel conduct is thus much like a naked assertion of conspiracy in fact), see, e.g., Swierkiewicz v. *556 Sorema N. A., 534 U.S. 506, 508, n. 1, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Neitzke v. Williams, 490 U.S. 319, 327, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (“Rule 12(b)(6) does not countenance ... dismissals based on a judge's disbelief of a complaint's factual in a § 1 complaint: it gets the complaint close to stating a claim, but without some further factual enhancement it stops short of the line between possibility and plausibility of “entitle[ment] to relief.” Cf. DM Research, Inc. v. College of Am. Pathologists, 170 F.3d 53, 56 (C.A.1 1999) (“[T]erms allegations”); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 like ‘conspiracy,’ or even ‘agreement,’ are border-line: they S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a well-pleaded complaint might well be sufficient in conjunction with a more specific may proceed even if it appears “that a recovery is very remote allegation—for example, identifying a written agreement or and unlikely”). even a basis for inferring a tacit agreement, ... but a court is [10] [11] [12] [13] In applying these general standardsnot required to accept such terms as a sufficient basis for a to a § 1 claim, we hold that stating such a claim requires a complaint with enough factual matter (taken as true) to suggest that an agreement was made. Asking for plausible grounds to infer an agreement does not impose a probability requirement at the pleading stage; it simply calls for enough complaint”). 5 We alluded to the practical significance of the Rule 8 entitlement requirement in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 9 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... (2005), when we explained that something beyond the mere possibility of loss causation must be *558 alleged, lest a plaintiff with “ ‘a largely groundless claim’ ” be allowed to “ ‘take up the time of a number of other people, with the right to do so representing an in terrorem increment of the settlement value.’ ” Id., at 347, 125 S.Ct. 1627 (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975)). So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, “ ‘this basic deficiency should ... be exposed at the point of minimum expenditure of time and money by the parties and the court.’ ” 5 Wright & Miller § 1216, at 233–234 (quoting Daves v. Hawaiian Dredging Co., 114 F.Supp. 643, 645 (D.Hawai 1953)); see also Dura, supra, at 346, 125 S.Ct. 1627; Asahi Glass Co. v. Pentech Pharmaceuticals, Inc., 289 F.Supp.2d 986, 995 (N.D.Ill.2003) (Posner, J., sitting by designation) (“[S]ome threshold of plausibility must be crossed at the outset before a patent antitrust case should be permitted to go into its inevitably costly and protracted discovery phase”). Thus, it is one thing to be cautious before dismissing an antitrust complaint in advance of discovery, cf. **1967 Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962), but quite another to forget that proceeding to antitrust discovery can be expensive. As we indicated over 20 years ago in Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 528, n. 17, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), “a district court must retain the power to insist upon some specificity in pleading before allowing a potentially massive factual controversy to proceed.” See also Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (C.A.7 1984) (“[T]he costs of modern federal antitrust litigation and the increasing caseload of the federal courts counsel against sending the parties into discovery when there is no reasonable likelihood that the plaintiffs can construct a claim from the events related in the complaint”); Note, Modeling the Effect of One–Way Fee Shifting on Discovery Abuse in Private Antitrust Litigation, 78 N.Y. & U. L.Rev. 1887, 1898– 1899 (2003) (discussing the unusually high cost of discovery in antitrust cases); *559 Manual for Complex Litigation, Fourth, § 30, p. 519 (2004) (describing extensive scope of discovery in antitrust cases); Memorandum from Paul V. Niemeyer, Chair, Advisory Committee on Civil Rules, to Hon. Anthony J. Scirica, Chair, Committee on Rules of Practice and Procedure (May 11, 1999), 192 F.R.D. 354, 357 (2000) (reporting that discovery accounts for as much as 90 percent of litigation costs when discovery is actively employed). That potential expense is obvious enough in the present case: plaintiffs represent a putative class of at least 90 percent of all subscribers to local telephone or high-speed Internet service in the continental United States, in an action against America's largest telecommunications firms (with many thousands of employees generating reams and gigabytes of business records) for unspecified (if any) instances of antitrust violations that allegedly occurred over a period of seven years. It is no answer to say that a claim just shy of a plausible entitlement to relief can, if groundless, be weeded out early in the discovery process through “careful case management,” post, at 1975, given the common lament that the success of judicial supervision in checking discovery abuse has been on the modest side. See, e.g., Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635, 638 (1989) (“Judges can do little about impositional discovery when parties control the legal claims to be presented and conduct the discovery themselves”). And it is self-evident that the problem of discovery abuse cannot be solved by “careful scrutiny of evidence at the summary judgment stage,” much less “lucid instructions to juries,” post, at 1975; the threat of discovery expense will push cost-conscious defendants to settle even anemic cases before reaching those proceedings. Probably, then, it is only by taking care to require allegations that reach the level suggesting conspiracy that we can hope to avoid the potentially enormous expense of discovery in cases with no “ ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ ” to support a § 1 claim. *560 Dura, 544 U.S., at 347, 125 S.Ct. 1627, 161 L.Ed.2d 577, (quoting Blue Chip Stamps, supra, at 741, 95 S.Ct. 1917; alteration in Dura ). 6 **1968 [14] Plaintiffs do not, of course, dispute the requirement of plausibility and the need for something more than merely parallel behavior explained in Theatre Enterprises, Monsanto, and Matsushita, and their main argument against the plausibility standard at the pleading stage is its ostensible *561 conflict with an early statement of ours construing Rule 8. Justice Black's opinion for the Court in Conley v. Gibson spoke not only of the need for fair notice of the grounds for entitlement to relief but of “the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that © 2020 Thomson Reuters. No claim to original U.S. Government Works. 10 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U.S., at 45–46, 78 S.Ct. 99. This “no set of facts” language can be read in isolation as saying that any statement revealing the theory of the claim will suffice unless its factual impossibility may be shown from the face of the pleadings; and the Court of Appeals appears to have read Conley in some such way when formulating its understanding of the proper pleading standard, see 425 F.3d, at 106, 114 (invoking Conley's “no set of facts” language in describing the standard for dismissal). 7 On such a focused and literal reading of Conley's “no set of facts,” a wholly conclusory statement of claim would survive a motion to dismiss whenever the pleadings left open the possibility that a plaintiff might later establish some “set of [undisclosed] facts” to support recovery. So here, the Court of Appeals specifically found the prospect of unearthing direct evidence of conspiracy sufficient to preclude dismissal, even though the complaint **1969 does not set forth a single *562 fact in a context that suggests an agreement. 425 F.3d, at 106, 114. It seems fair to say that this approach to pleading would dispense with any showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be able to make a case, see Dura, 544 U.S., at 347, 125 S.Ct. 1627 (quoting Blue Chip Stamps, 421 U.S., at 741, 95 S.Ct. 1917); Mr. Micawber's optimism would be enough. Seeing this, a good many judges and commentators have balked at taking the literal terms of the Conley passage as a pleading standard. See, e.g., Car Carriers, 745 F.2d, at 1106 (“Conley has never been interpreted literally” and, “[i]n practice, a complaint ... must contain either direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory” (internal quotation marks omitted; emphasis and omission in original)); Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1155 (C.A.9 1989) (tension between Conley's “no set of facts” language and its acknowledgment that a plaintiff must provide the “grounds” on which his claim rests); O'Brien v. DiGrazia, 544 F.2d 543, 546, n. 3 (C.A.1 1976) (“[W]hen a plaintiff ... supplies facts to support his claim, we do not think that Conley imposes a duty on the courts to conjure up unpleaded facts that might turn a frivolous claim of unconstitutional ... action into a substantial one”); McGregor v. Industrial Excess Landfill, Inc., 856 F.2d 39, 42–43 (C.A.6 1988) (quoting O'Brien's analysis); Hazard, From Whom No Secrets Are Hid, 76 Tex. L.Rev. 1665, 1685 (1998) (describing Conley as having “turned Rule 8 on its head”); Marcus, The Revival of Fact Pleading Under the Federal Rules of Civil Procedure, 86 Colum. L.Rev. 433, 463–465 (1986) (noting tension between Conley and subsequent understandings of Rule 8). We could go on, but there is no need to pile up further citations to show that Conley's “no set of facts” language has been questioned, criticized, and explained away long enough. To be fair to the Conley Court, the passage should be understood in light of the opinion's preceding summary of the complaint's *563 concrete allegations, which the Court quite reasonably understood as amply stating a claim for relief. But the passage so often quoted fails to mention this understanding on the part of the Court, and after puzzling the profession for 50 years, this famous observation has earned its retirement. The phrase is best forgotten as an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint. See Sanjuan, 40 F.3d, at 251 (once a claim for relief has been stated, a plaintiff “receives the benefit of imagination, so long as the hypotheses are consistent with the complaint”); accord, Swierkiewicz, 534 U.S., at 514, 122 S.Ct. 992; National Organization for Women, Inc. v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994); H.J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 249– 250, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989); Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984). Conley, then, described the breadth of opportunity to prove what an adequate complaint claims, not the minimum standard of adequate pleading to govern a complaint's survival. 8 **1970 *564 III [15] When we look for plausibility in this complaint, we agree with the District Court that plaintiffs' claim of conspiracy in restraint of trade comes up short. To begin with, the complaint leaves no doubt that plaintiffs rest their § 1 claim on descriptions of parallel conduct and not on any independent allegation of actual agreement among the ILECs. Supra, at 1962 – 1963. Although in form a © 2020 Thomson Reuters. No claim to original U.S. Government Works. 11 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... few stray statements speak directly of agreement, 9 on fair reading these are merely legal conclusions resting on the prior allegations. Thus, the complaint *565 first takes account of the alleged “absence of any meaningful competition between [the ILECs] in one another's markets,” “the parallel course of conduct that each [ILEC] engaged in to prevent competition from CLECs,” “and the other facts and market circumstances alleged [earlier]”; “in light of” these, the complaint concludes “that [the ILECs] have entered into a contract, combination or conspiracy to prevent competitive entry into their ... markets and have agreed not to compete with one another.” Complaint ¶ 51, App. 27. 10 The nub of the **1971 complaint, then, is the ILECs' parallel behavior, consisting of steps to keep the CLECs out and manifest disinterest in becoming CLECs themselves, and its sufficiency turns on the suggestions raised by this conduct when viewed in light of common economic experience. 11 *566 We think that nothing contained in the complaint invests either the action or inaction alleged with a plausible suggestion of conspiracy. As to the ILECs' supposed agreement to disobey the 1996 Act and thwart the CLECs' attempts to compete, we agree with the District Court that nothing in the complaint intimates that the resistance to the upstarts was anything more than the natural, unilateral reaction of each ILEC intent on keeping its regional dominance. The 1996 Act did more than just subject the ILECs to competition; it obliged them to subsidize their competitors with their own equipment at wholesale rates. The economic incentive to resist was powerful, but resisting competition is routine market conduct, and even if the ILECs flouted the 1996 Act in all the ways the plaintiffs allege, see id., ¶ 47, App. 23–24, there is no reason to infer that the companies had agreed among themselves to do what was only natural anyway; so natural, in fact, that if alleging parallel decisions to resist competition were enough to imply an antitrust conspiracy, pleading a § 1 violation against almost any group of competing businesses would be a sure thing. The complaint makes its closest pass at a predicate for conspiracy with the claim that collusion was necessary because success by even one CLEC in an ILEC's territory “would have revealed the degree to which competitive entry by CLECs would have been successful in the other territories.” Id., ¶ 50, App. 26–27. But, its logic aside, this general premise still fails to answer the point that there was just no need for joint encouragement to resist the 1996 Act; as the District Court said, “each ILEC has reason to want to avoid dealing with CLECs” and “each ILEC would attempt to keep CLECs out, regardless of the actions of the other ILECs.” 313 F.Supp.2d, at 184; cf. Kramer v. Pollock–Krasner Foundation, 890 F.Supp. 250, 256 (S.D.N.Y.1995) (while the plaintiff “may believe the defendants conspired ..., the defendants' allegedly conspiratorial actions *567 could equally have been prompted by lawful, independent goals which do not constitute a conspiracy”). 12 **1972 Plaintiffs' second conspiracy theory rests on the competitive reticence among the ILECs themselves in the wake of the 1996 Act, which was supposedly passed in the “ ‘hop[e] that the large incumbent local monopoly companies ... might attack their neighbors' service areas, as they are the best situated to do so.’ ” Complaint ¶ 38, App. 20 (quoting Consumer Federation of America, Lessons from 1996 Telecommunications Act: Deregulation Before Meaningful Competition Spells Consumer Disaster, p. 12 (Feb. 2000)). Contrary to hope, the ILECs declined “ ‘to enter each other's service territories in any significant way,’ ” Complaint ¶ 38, App. 20, and the local telephone and high– speed Internet market remains highly compartmentalized geographically, with minimal competition. Based on this state of affairs, and perceiving the ILECs to be blessed with “especially attractive business opportunities” in surrounding markets dominated by other ILECs, the plaintiffs assert that the ILECs' parallel conduct was “strongly suggestive of conspiracy.” Id., ¶ 40, App. 21. But it was not suggestive of conspiracy, not if history teaches anything. In a traditionally unregulated industry with low barriers to entry, sparse competition among large firms dominating separate geographical segments of the market could very well signify illegal agreement, but here we have an obvious alternative explanation. In the decade *568 preceding the 1996 Act and well before that, monopoly was the norm in telecommunications, not the exception. See Verizon Communications Inc. v. FCC, 535 U.S. 467, 477– 478, 122 S.Ct. 1646, 152 L.Ed.2d 701 (2002) (describing telephone service providers as traditional public monopolies). The ILECs were born in that world, doubtless liked the world the way it was, and surely knew the adage about him who lives by the sword. Hence, a natural explanation for the noncompetition alleged is that the former Governmentsanctioned monopolists were sitting tight, expecting their neighbors to do the same thing. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 12 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... F.Supp.2d, at 181 (citation and footnote omitted). Even [16] [17] [18] In fact, the complaint itself gives reasons though Swierkiewicz's pleadings “detailed the events leading to believe that the ILECs would see their best interests to his termination, provided relevant dates, and included in keeping to their old turf. Although the complaint says the ages and nationalities of at least some of the relevant generally that the ILECs passed up “especially attractive persons involved with his termination,” the Court of Appeals business opportunit[ies]” by declining to compete as CLECs dismissed his complaint for failing to allege certain additional against other ILECs, Complaint ¶ 40, App. 21, it does facts that Swierkiewicz would need at the trial stage to support not allege that competition as CLECs was potentially any his claim in the absence of direct evidence of discrimination. more lucrative than other opportunities being pursued by the Swierkiewicz, 534 U.S., at 514, 122 S.Ct. 992. We reversed ILECs during the same period, 13 and **1973 the complaint on the ground that the Court of Appeals had impermissibly is replete with indications that any CLEC faced nearly applied what amounted to a heightened pleading requirement insurmountable barriers to profitability owing to the ILECs' by insisting that Swierkiewicz allege “specific facts” beyond flagrant resistance to the network sharing requirements of those necessary to state his **1974 claim and the grounds the 1996 Act, id., ¶ 47, App. *569 23–26. Not only that, showing entitlement to relief. Id., at 508, 122 S.Ct. 992. but even without a monopolistic tradition and the peculiar difficulty of mandating shared networks, “[f]irms do not Here, in contrast, we do not require heightened fact pleading expand without limit and none of them enters every market of specifics, but only enough facts to state a claim to relief that an outside observer might regard as profitable, or even that is plausible on its face. Because the plaintiffs here have a small portion of such markets.” Areeda & Hovenkamp ¶ not nudged their claims across the line from conceivable to 307d, at 155 (Supp.2006) (commenting on the case at bar). plausible, their complaint must be dismissed. The upshot is that Congress may have expected some ILECs to become CLECs in the legacy territories of other ILECs, but the disappointment does not make conspiracy plausible. We agree with the District Court's assessment that antitrust *** conspiracy was not suggested by the facts adduced under The judgment of the Court of Appeals for the Second Circuit either theory of the complaint, which thus fails to state a valid is reversed, and the case is remanded for further proceedings § 1 claim. 14 consistent with this opinion. Plaintiffs say that our analysis runs counter to Swierkiewicz, 534 U.S., at 508, 122 S.Ct. 992, 152 L.Ed.2d 1, which held that “a complaint in an employment discrimination lawsuit [need] not contain specific facts establishing a prima facie case of discrimination under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792[, 93 S.Ct. 1817, 36 L.Ed.2d 668] (1973).” They argue that just as the prima facie case is a “flexible evidentiary standard” that “should not be transposed into a rigid pleading standard for discrimination cases,” Swierkiewicz, supra, at 512, 122 S.Ct. 992, “transpos[ing] ‘plus factor’ summary judgment analysis woodenly into a rigid Rule 12(b)(6) pleading standard ... would be unwise,” Brief for Respondents 39. As the District Court *570 correctly understood, however, “Swierkiewicz did not change the law of pleading, but simply re-emphasized ... that the Second Circuit's use of a heightened pleading standard for Title VII cases was contrary to the Federal Rules' structure of liberal pleading requirements.” 313 It is so ordered. Justice STEVENS, with whom Justice GINSBURG joins except as to Part IV, dissenting. In the first paragraph of its 23–page opinion the Court states that the question to be decided is whether allegations that “major telecommunications providers engaged in certain *571 parallel conduct unfavorable to competition” suffice to state a violation of § 1 of the Sherman Act. Ante, at 1961. The answer to that question has been settled for more than 50 years. If that were indeed the issue, a summary reversal citing Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 74 S.Ct. 257, 98 L.Ed. 273 (1954), would adequately resolve this case. As Theatre Enterprises held, parallel conduct is circumstantial evidence admissible on the issue of conspiracy, but it is not itself illegal. 540–542, 74 S.Ct. 257. © 2020 Thomson Reuters. No claim to original U.S. Government Works. Id., at 13 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... Thus, this is a case in which there is no dispute about the substantive law. If the defendants acted independently, their conduct was perfectly lawful. If, however, that conduct is the product of a horizontal agreement among potential competitors, it was unlawful. The plaintiffs have alleged such an agreement and, because the complaint was dismissed in advance of answer, the allegation has not even been denied. Why, then, does the case not proceed? Does a judicial opinion that the charge is not “plausible” provide a legally acceptable reason for dismissing the complaint? I think not. Respondents' amended complaint describes a variety of circumstantial evidence and makes the straightforward allegation that petitioners “entered into a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets and have agreed not to compete with one another and otherwise allocated customers and markets to one another.” Amended Complaint in No. 02 CIV. 10220(GEL) (SDNY) ¶ 51, App. 27 (hereinafter Complaint). The complaint explains that, contrary to Congress' expectation when it enacted the 1996 Telecommunications Act, and consistent with their own economic self-interests, petitioner Incumbent Local Exchange Carriers (ILECs) have assiduously avoided infringing upon each other's markets and have *572 refused to permit nonincumbent competitors to access their networks. The complaint quotes Richard Notebaert, the former chief executive officer of one such ILEC, as saying that competing in a neighboring ILEC's territory “ ‘might be a good way to turn a quick dollar but that doesn't make it right.’ ” Id., ¶ 42, App. 22. Moreover, respondents allege that petitioners “communicate amongst themselves” through numerous industry associations. Id., ¶ 46, App. 23. In sum, respondents allege that petitioners entered into an agreement that has long been recognized as a classic per se **1975 violation of the Sherman Act. See Report of the Attorney General's National Committee to Study the Antitrust Laws 26 (1955). Under rules of procedure that have been well settled since well before our decision in Theatre Enterprises, a judge ruling on a defendant's motion to dismiss a complaint “must accept as true all of the factual allegations contained in the complaint.” Swierkiewicz v. Sorema N. A., 534 U.S. 506, 508, n. 1, L.Ed. 656 (1943). But instead of requiring knowledgeable executives such as Notebaert to respond to these allegations by way of sworn depositions or other limited discovery— and indeed without so much as requiring petitioners to file an answer denying that they entered into any agreement —the majority permits immediate dismissal based on the assurances of company lawyers that nothing untoward was afoot. The Court embraces the argument of those lawyers that “there is no reason to infer that the companies had agreed among themselves to do what was only natural anyway,” ante, at 1971; that “there was just no need for joint encouragement to resist the 1996 Act,” ibid.; and that the “natural explanation for the noncompetition alleged is that the former Government-sanctioned monopolists were sitting tight, expecting their neighbors to do the same thing,” ante, at 1972. The Court and petitioners' legal team are no doubt correct that the parallel conduct alleged is consistent with the absence *573 of any contract, combination, or conspiracy. But that conduct is also entirely consistent with the presence of the illegal agreement alleged in the complaint. And the charge that petitioners “agreed not to compete with one another” is not just one of “a few stray statements,” ante, at 1970; it is an allegation describing unlawful conduct. As such, the Federal Rules of Civil Procedure, our longstanding precedent, and sound practice mandate that the District Court at least require some sort of response from petitioners before dismissing the case. Two practical concerns presumably explain the Court's dramatic departure from settled procedural law. Private antitrust litigation can be enormously expensive, and there is a risk that jurors may mistakenly conclude that evidence of parallel conduct has proved that the parties acted pursuant to an agreement when they in fact merely made similar independent decisions. Those concerns merit careful case management, including strict control of discovery, careful scrutiny of evidence at the summary judgment stage, and lucid instructions to juries; they do not, however, justify the dismissal of an adequately pleaded complaint without even requiring the defendants to file answers denying a charge that they in fact engaged in collective decisionmaking. More importantly, they do not justify an interpretation of Federal Rule of Civil Procedure 12(b)(6) that seems to be driven by the majority's appraisal of the plausibility of the ultimate factual allegation rather than its legal sufficiency. 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); see Overstreet v. North Shore Corp., 318 U.S. 125, 127, 63 S.Ct. 494, 87 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 14 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... I Rule 8(a)(2) of the Federal Rules requires that a complaint contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” The Rule did not come about by happenstance, and its language is not inadvertent. The English experience with Byzantine special pleading rules —illustrated by the hypertechnical Hilary rules of *574 1834 1 —made **1976 obvious the appeal of a pleading standard that was easy for the common litigant to understand and sufficed to put the defendant on notice as to the nature of the claim against him and the relief sought. Stateside, David Dudley Field developed the highly influential New York Code of 1848, which required “[a] statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended.” An Act to Simplify and Abridge the Practice, Pleadings and Proceedings of the Courts of this State, ch. 379, § 120(2), 1848 N.Y. Laws pp. 497, 521. Substantially similar language appeared in the Federal Equity Rules adopted in 1912. See Fed. Equity Rule 25 (requiring “a short and simple statement of the ultimate facts upon which the plaintiff asks relief, omitting any mere statement of evidence”). A difficulty arose, however, in that the Field Code and its progeny required a plaintiff to plead “facts” rather than “conclusions,” a distinction that proved far easier to say than to apply. As commentators have noted, “it is virtually impossible logically to distinguish among ‘ultimate facts,’ ‘evidence,’ and ‘conclusions.’ Essentially any allegation in a pleading must be an assertion that certain occurrences took place. The pleading spectrum, passing from evidence through ultimate facts to conclusions, is largely a continuum varying only in the degree of particularity with which the occurrences are described.” Weinstein & Distler, Comments on Procedural Reform: Drafting Pleading Rules, 57 Colum. L.Rev. 518, 520–521 (1957). See also Cook, Statements of Fact in Pleading Under the Codes, 21 Colum. L.Rev. 416, 417 (1921) (hereinafter Cook) (“[T]here is no logical distinction between statements which are grouped by the courts under the phrases ‘statements of *575 fact’ and ‘conclusions of law’ ”). Rule 8 was directly responsive to this difficulty. Its drafters intentionally avoided any reference to “facts” or “evidence” or “conclusions.” See 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, p. 207 (3d ed.2004) (hereinafter Wright & Miller) (“The substitution of ‘claim showing that the pleader is entitled to relief’ for the code formulation of the ‘facts' constituting a ‘cause of action’ was intended to avoid the distinctions drawn under the codes among ‘evidentiary facts,’ ‘ultimate facts,’ and ‘conclusions' ...”). Under the relaxed pleading standards of the Federal Rules, the idea was not to keep litigants out of court but rather to keep them in. The merits of a claim would be sorted out during a flexible pretrial process and, as appropriate, through the crucible of trial. See Swierkiewicz, 534 U.S., at 514, 122 S.Ct. 992 (“The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim”). Charles E. Clark, the “principal draftsman” of the Federal Rules, 2 put it thus: “Experience has shown ... that we cannot expect the proof of the case to be made through the pleadings, and that such proof is really not their function. We can expect a general statement distinguishing the case from all others, so that the manner and form of trial and remedy expected are clear, and so that a permanent judgment will result.” **1977 The New Federal Rules of Civil Procedure: The Last Phase —Underlying Philosophy Embodied in Some of the Basic Provisions of the New Procedure, 23 A.B.A.J. 976, 977 (1937) (hereinafter Clark, New Federal Rules). The pleading paradigm under the new Federal Rules was well illustrated by the inclusion in the appendix of Form 9, *576 a complaint for negligence. As relevant, the Form 9 complaint states only: “On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway.” Form 9, Complaint for Negligence, Forms App., Fed. Rules Civ. Proc., 28 U.S.C.App., p. 829 (hereinafter Form 9). The complaint then describes the plaintiff's injuries and demands judgment. The asserted ground for relief —namely, the defendant's negligent driving—would have been called a “ ‘conclusion of law’ ” under the code pleading of old. See, e.g., Cook 419. But that bare allegation suffices under a system that “restrict[s] the pleadings to the task of general notice-giving and invest[s] the deposition-discovery process with a vital role in the preparation for trial.” 3 © 2020 Thomson Reuters. No claim to original U.S. Government Works. Hickman v. Taylor, 329 U.S. 15 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... 495, 501, 67 S.Ct. 385, 91 L.Ed. 451 (1947); see also Swierkiewicz, 534 U.S., at 513, n. 4, 122 S.Ct. 992 (citing Form 9 as an example of “ ‘the simplicity and brevity of statement which the rules contemplate’ ”); Thomson v. Washington, 362 F.3d 969, 970 (C.A.7 2004) (Posner, J.) (“The federal rules replaced fact pleading with notice pleading”). relief. 5 II It is in the context of this history that Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), must be understood. The Conley plaintiffs were black railroad workers who alleged that their union local had refused to protect them against discriminatory discharges, in violation of the National Railway Labor Act. The union sought to dismiss the complaint on the ground that its general allegations of discriminatory treatment by the defendants lacked sufficient specificity. Writing *577 for a unanimous Court, Justice Black rejected the union's claim as foreclosed by the language of Rule 8. Id., at 47–48, 78 S.Ct. 99. In the course of doing so, he articulated the formulation the Court rejects today: “In appraising the sufficiency of the complaint we follow, of course, the accepted rule 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.” 78 S.Ct. 99. separate writings. 4 In not one of *578 those 16 opinions was the language “questioned,” “criticized,” or “explained away.” Indeed, today's opinion is the first by any Member of this Court to express any doubt as to the adequacy of the Conley formulation. Taking their cues from the federal courts, 26 States and the District of Columbia utilize as their standard for dismissal of a complaint the very language the majority repudiates: whether it appears “beyond doubt” that “no set of facts” in support of the claim would entitle the plaintiff to Id., at 45–46, Consistent with the design of the Federal Rules, Conley's “no set of facts” formulation permits outright dismissal only when proceeding to discovery or beyond would be futile. Once it is clear that a plaintiff has stated a claim that, if true, would entitle him to relief, matters of proof are appropriately relegated to other stages of the trial process. Today, however, in its explanation of a decision to dismiss a complaint that it regards as a fishing expedition, the Court scraps Conley's “no set of facts” language. Concluding that the phrase has been “questioned, criticized, and explained away long enough,” ante, at 1969, the Court dismisses it as careless composition. **1978 If Conley's “no set of facts” language is to be interred, let it not be without a eulogy. That exact language, which the majority says has “puzzl[ed] the profession for 50 years,” ante, at 1969, 355 U.S. 41, 2 L.Ed.2d 80, has been cited as authority in a dozen opinions of this Court and four **1979 *579 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). Today's majority calls Conley's “ ‘no set of facts' ” language “an incomplete, negative gloss on an accepted pleading standard: once a claim has been stated adequately, it may be *580 supported by showing any set of facts consistent with the allegations in the complaint.” Ante, at 1969. This is not and cannot be what the Conley Court meant. First, as I have explained, and as the Conley Court well knew, the pleading standard the Federal Rules meant to codify does not require, or even invite, the pleading of facts. 6 The “pleading standard” label the majority gives to what it reads into the Conley opinion—a statement of the permissible factual support for an adequately pleaded complaint—would not, therefore, have impressed the Conley Court itself. Rather, that Court would have understood the majority's remodeling of its language to express an evidentiary standard, which the Conley Court had neither need nor want to explicate. Second, it is pellucidly clear that the Conley Court was interested in what a complaint must contain, not what it may contain. In fact, the Court said without qualification that it was “appraising the sufficiency of **1980 the complaint.” 355 U.S., at 45, 78 S.Ct. 99 (emphasis added). It was, to paraphrase today's majority, describing “the minimum standard of adequate pleading to govern a complaint's survival,” ante, at 1969. We can be triply sure as to Conley's meaning by examining the three Court of Appeals cases the Conley Court cited as support for the “accepted rule” that “a complaint should not *581 be © 2020 Thomson Reuters. No claim to original U.S. Government Works. 16 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... 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.” 355 U.S., at 45–46, 78 S.Ct. 99. In the first case, Leimer v. State Mut. Life Assurance Co. of Worcester, Mass., 108 F.2d 302 (C.A.8 1940), the plaintiff alleged that she was the beneficiary of a life insurance plan and that the insurance company was wrongfully withholding proceeds from her. In reversing the District Court's grant of the defendant's motion to dismiss, the Eighth Circuit noted that court's own longstanding rule that, to warrant dismissal, “ ‘it should appear from the allegations that a cause of action does not exist, rather than that a cause of action has been defectively stated.’ ” Id., at 305 (quoting Winget v. Rockwood, 69 F.2d 326, 329 (C.A.8 1934)). The Leimer court viewed the Federal Rules—specifically Rules 8(a)(2), 12(b)(6), 12(e) (motion for a more definite statement), and 56 (motion for summary judgment)—as reinforcing the notion that “there is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could The third case the Conley Court cited approvingly was written by Judge Clark himself. In Dioguardi v. Durning, 139 F.2d 774 (C.A.2 1944), the pro se plaintiff, an importer of “tonics,” charged the customs inspector with auctioning off the plaintiff's former merchandise for less than was bid for it—and indeed for an amount equal to the plaintiff's own bid—and complained that two cases of tonics went missing three weeks before the sale. The inference, hinted at by the averments but never stated in so many words, was that the defendant fraudulently denied the plaintiff his rightful claim to the tonics, which, if true, would have violated federal law. Writing six years after the adoption of the Federal Rules he held the lead rein in drafting, Judge Clark said that the defendant “could have disclosed the facts from his point of view, in advance of a trial if he **1981 chose, by asking for a pretrial hearing or by moving for a summary judgment with supporting affidavits. But, as it stands, we do not see how the plaintiff may properly be deprived of his day in court to show what he obviously so firmly believes and what for present purposes defendant must be taken as admitting.” Id., at 775. be proved in support of the claim.” 108 F.2d, at 306. The court refuted in the strongest terms any suggestion that the unlikelihood of recovery should determine the fate of a complaint: “No matter how improbable it may be that she can prove her claim, she is entitled to an opportunity to make the attempt, and is not required to accept as final a determination of her rights based upon inferences drawn in favor of the defendant from her amended complaint.” Ibid. As any civil procedure student knows, Judge Clark's opinion disquieted the defense bar and gave rise to a movement to revise Rule 8 to require a plaintiff to plead a “ ‘cause of action.’ ” See 5 Wright & Miller § 1201, at 86–87. The movement failed, see ibid.; Dioguardi was explicitly approved in Conley; and “[i]n retrospect the case itself seems to be a *583 routine application of principles that are universally accepted,” 5 Wright & Miller § 1220, at 284–285. The Third Circuit relied on Leimer's admonition in In light of Leimer, Continental Collieries, and Dioguardi, Conley's statement that a complaint is not to be dismissed unless “no set of facts” in support thereof would entitle the plaintiff to relief is hardly “puzzling,” ante, at 1969. It reflects a philosophy that, unlike in the days of code pleading, separating the wheat from the chaff is a task assigned to the pretrial and trial process. Conley's language, in short, captures the policy choice embodied in the Federal Rules and binding on the federal courts. Continental Collieries, Inc. v. Shober, 130 F.2d 631 (1942), which the Conley Court also cited in support of its “no set of facts” formulation. In a diversity action the plaintiff alleged breach of contract, but the District Court dismissed the complaint on the ground that the contract appeared to be unenforceable under state law. The Court of Appeals reversed, *582 concluding that there were facts in dispute that went to the enforceability of the contract, and that the rule at the pleading stage was as in Leimer: “No matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it.” 130 F.3d, at 635. We have consistently reaffirmed that basic understanding of the Federal Rules in the half century since Conley. For example, in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), we reversed the Court of Appeals' dismissal on the pleadings when the respondents, the Governor and other officials of the State of Ohio, © 2020 Thomson Reuters. No claim to original U.S. Government Works. 17 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... argued that the petitioners' claims were barred by sovereign immunity. In a unanimous opinion by then-Justice Rehnquist, we emphasized: “When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test.” added). Id., at 236, 94 S.Ct. 1683 (emphasis The Rhodes plaintiffs had “alleged generally and in conclusory terms” that the defendants, by calling out the National Guard to suppress the Kent State University student protests, “were guilty of wanton, wilful and negligent conduct.” Krause v. Rhodes, 471 F.2d 430, 433 (C.A.6 1972). We reversed the Court of Appeals on the ground that “[w]hatever *584 the plaintiffs may or may not be able to establish as to the merits of their allegations, their claims, as stated in the complaints, given the favorable reading required by the Federal Rules of Civil Procedure,” were not barred by the Eleventh Amendment because they were styled as suits against the defendants in their individual capacities. U.S., at 238, 94 S.Ct. 1683. 416 We again spoke with one voice against efforts to expand pleading requirements beyond their appointed limits in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). Writing for the unanimous Court, Chief Justice Rehnquist rebuffed the Fifth Circuit's effort to craft a standard for pleading municipal liability that accounted for “the enormous expense involved today in litigation,” Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 954 F.2d 1054, 1057 (1992) (internal quotation marks omitted), by requiring a plaintiff to “state with factual **1982 detail and particularity the basis for the claim which necessarily includes why the defendant-official cannot successfully maintain the defense of immunity,” 507 U.S., at 167, 113 S.Ct. 1160, 122 L.Ed.2d 517, (internal quotation marks omitted). We found this language inconsistent with Rules 8(a)(2) and 9(b) and emphasized that motions to dismiss were not the place to combat discovery abuse: “In the absence of [an amendment to Rule 9(b) ], federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later.” Id., at 168–169, 113 S.Ct. 1160. Most recently, in Swierkiewicz, 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1, we were faced with a case more similar to the present one than the majority will allow. In discrimination cases, our precedents require a plaintiff at the summary judgment stage to produce either direct evidence of discrimination or, if the claim is based primarily on circumstantial evidence, to meet the shifting evidentiary burdens imposed under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., *585 Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985). Swierkiewicz alleged that he had been terminated on account of national origin in violation of Title VII of the Civil Rights Act of 1964. The Second Circuit dismissed the suit on the pleadings because he had not pleaded a prima facie case of discrimination under the McDonnell Douglas standard. We reversed in another unanimous opinion, holding that “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does not apply in every employment discrimination case.” Swierkiewicz, 534 U.S., at 511, 122 S.Ct. 992. We also observed that Rule 8(a)(2) does not contemplate a court's passing on the merits of a litigant's claim at the pleading stage. Rather, the “simplified notice pleading standard” of the Federal Rules “relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims.” Id., at 512, 122 S.Ct. 992; see Brief for United States et al. as Amici Curiae in Swierkiewicz v. Sorema N. A., O.T.2001, No. 00–1853, p. 10 (stating that a Rule 12(b)(6) motion is not “an appropriate device for testing the truth of what is asserted or for determining whether a plaintiff has any evidence to back up what is in the complaint” (internal quotation marks omitted)). 7 As in the discrimination context, we have developed an evidentiary framework for evaluating claims under § 1 of the Sherman Act when those claims rest on entirely circumstantial evidence of conspiracy. See Matsushita Elec. Industrial *586 Co. v. Zenith Radio Corp., 475 © 2020 Thomson Reuters. No claim to original U.S. Government Works. 18 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Under Matsushita, a plaintiff's allegations of an illegal conspiracy may not, at the summary judgment stage, rest solely on the inferences that may be drawn from the parallel conduct of the defendants. In order to survive a Rule 56 motion, a § 1 plaintiff “must present evidence ‘that tends **1983 to exclude the possibility’ that the alleged conspirators acted independently.' ” Id., at 588, 106 S.Ct. 1348 (quoting Monsanto Co. v. Spray–Rite Service Corp., 465 U.S. 752, 764, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984)). That is, the plaintiff “must show that the inference of conspiracy is reasonable in light of the competing inferences of independent action or collusive action.” 588, 106 S.Ct. 1348. 475 U.S., at Everything today's majority says would therefore make perfect sense if it were ruling on a Rule 56 motion for summary judgment and the evidence included nothing more than the Court has described. But it should go without saying in the wake of Swierkiewicz that a heightened production burden at the summary judgment stage does not translate into a heightened pleading burden at the complaint stage. The majority rejects the complaint in this case because—in light of the fact that the parallel conduct alleged is consistent with ordinary market behavior—the claimed conspiracy is “conceivable” but not “plausible,” ante, at 1974. I have my doubts about the majority's assessment of the plausibility of this alleged conspiracy. See Part III, infra. But even if the majority's speculation is correct, its “plausibility” standard is irreconcilable with Rule 8 and with our governing precedents. As we made clear in Swierkiewicz and Leatherman, fear of the burdens of litigation does not justify factual conclusions supported only by lawyers' arguments rather than sworn denials or admissible evidence. This case is a poor vehicle for the Court's new pleading rule, for we have observed that “in antitrust cases, where ‘the proof is largely in the hands of the alleged conspirators,’ ... dismissals prior to giving the plaintiff ample *587 opportunity for discovery should be granted very sparingly.” Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976) (quoting Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458 (1962)); see also Knuth v. Erie–Crawford Dairy Cooperative Assn., 395 F.2d 420, 423 (C.A.3 1968) (“The ‘liberal’ approach to the consideration of antitrust complaints is important because inherent in such an action is the fact that all the details and specific facts relied upon cannot properly be set forth as part of the pleadings”). Moreover, the fact that the Sherman Act authorizes the recovery of treble damages and attorney's fees for successful plaintiffs indicates that Congress intended to encourage, rather than discourage, private enforcement of the law. See Radovich v. National Football League, 352 U.S. 445, 454, 77 S.Ct. 390, 1 L.Ed.2d 456 (1957) ( “Congress itself has placed the private antitrust litigant in a most favorable position .... In the face of such a policy this Court should not add requirements to burden the private litigant beyond what is specifically set forth by Congress in those laws”). It is therefore more, not less, important in antitrust cases to resist the urge to engage in armchair economics at the pleading stage. The same year we decided Conley, Judge Clark wrote, presciently, “I fear that every age must learn its lesson that special pleading cannot be made to do the service of trial and that live issues between active litigants are not to be disposed of or evaded on the paper pleadings, i.e., the formalistic claims of the parties. Experience has found no quick and easy short cut for trials in cases generally and antitrust cases in particular.” Special Pleading in the “Big Case”? in Procedure—The Handmaid of Justice 147, 148 (C. Wright & H. Reasoner eds.1965) (hereinafter **1984 Clark, Special Pleading in the Big Case) (emphasis added). *588 In this “Big Case,” the Court succumbs to the temptation that previous Courts have steadfastly resisted. 8 While the majority assures us that it is not applying any “ ‘heightened’ ” pleading standard, see ante, at 1973, n. 14, I shall now explain why I have a difficult time understanding its opinion any other way. III The Court does not suggest that an agreement to do what the plaintiffs allege would be permissible under the antitrust laws, see, e.g., Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526–527, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983). Nor does the Court hold that these plaintiffs have failed to allege an injury entitling them to sue for damages under those laws, see © 2020 Thomson Reuters. No claim to original U.S. Government Works. Brunswick Corp. v. 19 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... Pueblo Bowl–O–Mat, Inc., 429 U.S. 477, 489–490, 97 S.Ct. 690, 50 L.Ed.2d 701 (1977). Rather, the theory on which the Court permits *589 dismissal is that, so far as the Federal Rules are concerned, no agreement has been alleged at all. This is a mind-boggling conclusion. As the Court explains, prior to the enactment of the Telecommunications Act of 1996 the law prohibited the defendants from competing with each other. The new statute was enacted to replace a monopolistic market with a competitive one. The Act did not merely require the regional monopolists to take affirmative steps to facilitate entry to new competitors, see Verizon Communications Inc. v. Law Offices of Curtis V. Trinko, LLP, 540 U.S. 398, 402, 124 S.Ct. 872, 157 L.Ed.2d 823 (2004); it also permitted the existing firms to compete with each other and to expand their operations into previously forbidden territory. See 47 U.S.C. § 271. Each of the defendants decided not to take the latter step. That was obviously an extremely important business decision, and I am willing to presume that each company acted entirely independently in reaching that decision. I am even willing to entertain the majority's belief that any agreement among the companies was unlikely. But the plaintiffs allege in three places in their complaint, ¶¶ 4, 51, 64, App. 11, 27, 30, that the ILECs did in fact agree both to prevent competitors from entering into their local markets and to forgo competition with each other. And as the Court **1985 recognizes, at the motion to dismiss stage, a judge assumes “that all the allegations in the complaint are true (even if doubtful in fact).” Ante, at 1965. The majority circumvents this obvious obstacle to dismissal by pretending that it does not exist. The Court admits that “in form a few stray statements in the complaint speak directly of agreement,” but disregards those allegations by saying that “on fair reading these are merely legal conclusions resting on the prior allegations” of parallel conduct. Ante, at 1970. The Court's dichotomy between factual allegations and “legal conclusions” is the stuff of a bygone era, supra, at 1976 – 1977. That distinction was a defining feature of code pleading, see generally Clark, *590 The Complaint in Code Pleading, 35 Yale L.J. 259 (1925–1926), but was conspicuously abolished when the Federal Rules were enacted in 1938. See United States v. Employing Plasterers Assn. of Chicago, 347 U.S. 186, 188, 74 S.Ct. 452, 98 L.Ed. 618 (1954) (holding, in an antitrust case, that the Government's allegations of effects on interstate commerce must be taken into account in deciding whether to dismiss the complaint “[w]hether these charges be called ‘allegations of fact’ or ‘mere conclusions of the pleader’ ”); Brownlee v. Conine, 957 F.2d 353, 354 (C.A.7 1992) (“The Federal Rules of Civil Procedure establish a system of notice pleading rather than of fact pleading, ... so the happenstance that a complaint is ‘conclusory,’ whatever exactly that overused lawyers' cliche means, does not automatically condemn it”); Walker Distributing Co. v. Lucky Lager Brewing Co., 323 F.2d 1, 3–4 (C.A.9 1963) (“[O]ne purpose of Rule 8 was to get away from the highly technical distinction between statements of fact and conclusions of law ...”); Oil, Chemical & Atomic Workers Int'l Union v. Delta, 277 F.2d 694, 697 (C.A.6 1960) (“Under the notice system of pleading established by the Rules of Civil Procedure, ... the ancient distinction between pleading ‘facts' and ‘conclusions' is no longer significant”); 5 Wright & Miller § 1218, at 267 (“[T]he federal rules do not prohibit the pleading of facts or legal conclusions as long as fair notice is given to the parties”). “Defendants entered into a contract” is no more a legal conclusion than “defendant negligently drove,” see Form 9; supra, at 1977. Indeed it is less of one. 9 *591 Even if I were inclined to accept the Court's anachronistic dichotomy and ignore the complaint's actual allegations, I would dispute the Court's suggestion that any inference of agreement from petitioners' parallel conduct is “implausible.” Many years ago a truly great economist perceptively observed that “[p]eople of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.” A. Smith, An Inquiry Into the Nature and Causes of the Wealth of Nations, in 39 Great Books of the Western World 55 (R. Hutchins & M. Adler eds.1952). I am not so cynical as to accept that sentiment at face value, but I need not do so here. Respondents' complaint **1986 points not only to petitioners' numerous opportunities to meet with each other, Complaint ¶ 46, App. 23, 10 but also to Notebaert's curious statement that encroaching on a fellow incumbent's territory “might be a good way to turn a quick dollar but that doesn't make it right,” id., ¶ 42, App. 22. What did he mean by that? One possible (indeed plausible) inference is that he meant that while it would be in his company's economic selfinterest to compete with its brethren, he had agreed with his competitors not to do so. According to the complaint, that is how the Illinois Coalition for Competitive Telecom construed Notebaert's statement, id., ¶ 44, App. 22 (calling the statement “evidence of potential collusion among regional Bell phone monopolies to not compete *592 against one another and kill © 2020 Thomson Reuters. No claim to original U.S. Government Works. 20 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... off potential competitors in local phone service”), and that is how Members of Congress construed his company's behavior, id., ¶ 45, App. 23 (describing a letter to the Justice Department requesting an investigation into the possibility that the ILECs' “ ‘very apparent non-competition policy’ ” was coordinated). Perhaps Notebaert meant instead that competition would be sensible in the short term but not in the long run. That's what his lawyers tell us anyway. See Brief for Petitioners 36. But I would think that no one would know better what Notebaert meant than Notebaert himself. Instead of permitting respondents to ask Notebaert, however, the Court looks to other quotes from that and other articles and decides that what he meant was that entering new markets as a competitive local exchange carrier would not be a “ ‘sustainable economic model.’ ” Ante, at 1972 – 1973, n. 13. Never mind that—as anyone ever interviewed knows— a newspaper article is hardly a verbatim transcript; the writer selects quotes to package his story, not to record a subject's views for posterity. But more importantly the District Court was required at this stage of the proceedings to construe Notebaert's ambiguous statement in the plaintiffs' favor. 11 See Allen v. Wright, 468 U.S. 737, 767–768, n. 1, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (Brennan, J., dissenting). The inference the statement supports—that simultaneous decisions by ILECs not even to attempt to poach customers from one another once the law authorized them to *593 do so were the product of an agreement—sits comfortably within the realm of possibility. That is all the Rules require. To be clear, if I had been the trial judge in this case, I would not have permitted the plaintiffs to engage in massive discovery based solely on the allegations in this complaint. On the other hand, I surely would not have dismissed the complaint **1987 without requiring the defendants to answer the charge that they “have agreed not to compete with one another and otherwise allocated customers and markets to one another.” 12 Complaint, ¶ 51, App. 27. Even a sworn denial of that charge would not justify a summary dismissal without giving the plaintiffs the opportunity to take depositions from Notebaert and at least one responsible executive representing each of the other defendants. Respondents in this case proposed a plan of “ ‘phased discovery’ ” limited to the existence of the alleged conspiracy and class certification. Brief for Respondents 25–26. Two petitioners rejected the plan. Ibid. Whether or not respondents' proposed plan was sensible, it was an appropriate subject for negotiation. 13 Given the charge in the complaint *594 buttressed by the common sense of Adam Smith —I cannot say that the possibility that joint discussions **1988 and perhaps some agreements played a role in petitioners' decisionmaking process is so implausible that dismissing the complaint before any defendant has denied the charge is preferable to granting respondents even a minimal opportunity *595 to prove their claims. See Clark, New Federal Rules 977 (“[T]hrough the weapons of discovery and summary judgment we have developed new devices, with more appropriate penalties to aid in matters of proof, and do not need to force the pleadings to their less appropriate function”). I fear that the unfortunate result of the majority's new pleading rule will be to invite lawyers' debates over economic theory to conclusively resolve antitrust suits in the absence of any evidence. It is no surprise that the antitrust defense bar— among whom “lament” as to inadequate judicial supervision of discovery is most “common,” see ante, at 1967—should lobby for this state of affairs. But “we must recall that their primary responsibility is to win cases for their clients, not to improve law administration for the public.” Clark, Special Pleading in the Big Case 152. As we did in our prior decisions, we should have instructed them that their remedy was to seek to amend the Federal Rules—not our interpretation of them. 14 See 992; Swierkiewicz, 534 U.S., at 515, 122 S.Ct. Crawford–El v. Britton, 523 U.S. 574, 595, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); 168, 113 S.Ct. 1160. Leatherman, 507 U.S., at IV Just a few weeks ago some of my colleagues explained that a strict interpretation of the literal text of statutory language *596 is essential to avoid judicial decisions that are not faithful to the intent of Congress. Zuni Public School Dist. No. 89 v. Department of Education, ante, p. 108, 127 S.Ct. 1534, 167 L.Ed.2d 449, (2007) (SCALIA, J., dissenting). I happen to believe that there are cases in which other tools of construction are more reliable than text, but I agree of course that congressional intent should guide us in matters of statutory interpretation. Ante, at 106, 127 S.Ct. 1534, 167 L.Ed.2d 449, (STEVENS, J., concurring). This is a case in which the intentions of the drafters of three important sources of law—the Sherman Act, the Telecommunications Act of 1996, and the Federal Rules of Civil Procedure—all point © 2020 Thomson Reuters. No claim to original U.S. Government Works. 21 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... unmistakably in the same direction, yet the Court marches resolutely the other way. Whether the Court's actions will benefit only defendants in antitrust treble-damages cases, or whether its test for the sufficiency of a complaint will inure to the benefit of all civil defendants, is a question that the future will answer. But that the Court has announced a significant new rule that does not even purport to respond to any **1989 congressional command is glaringly obvious. The transparent policy concern that drives the decision is the interest in protecting antitrust defendants—who in this case are some of the wealthiest corporations in our economy— from the burdens of pretrial discovery. Ante, at 1966 – 1967. Even if it were not apparent that the legal fees petitioners have incurred in arguing the merits of their Rule 12(b) motion have far exceeded the cost of limited discovery, or that those discovery costs would burden respondents as well as 15 petitioners, that concern would not provide an adequate justification for this law-changing decision. For in the final analysis it is only a lack of confidence in the ability of trial judges to control discovery, buttressed by appellate judges' independent appraisal of the plausibility of profoundly *597 serious factual allegations, that could account for this stark break from precedent. If the allegation of conspiracy happens to be true, today's decision obstructs the congressional policy favoring competition that undergirds both the Telecommunications Act of 1996 and the Sherman Act itself. More importantly, even if there is abundant evidence that the allegation is untrue, directing that the case be dismissed without even looking at any of that evidence marks a fundamental—and unjustified— change in the character of pretrial practice. Accordingly, I respectfully dissent. All Citations 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709, 68 Fed.R.Serv.3d 661, 07 Cal. Daily Op. Serv. 5550, 2007 Daily Journal D.A.R. 7097, 41 Communications Reg. (P&F) 567, 20 Fla. L. Weekly Fed. S 267 Footnotes * 1 2 3 The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. The 1984 divestiture of AT & T's local telephone service created seven Regional Bell Operating Companies. Through a series of mergers and acquisitions, those seven companies were consolidated into the four ILECs named in this suit: BellSouth Corporation, Qwest Communications International, Inc., SBC Communications, Inc., and Verizon Communications, Inc. (successor-in-interest to Bell Atlantic Corporation). Complaint ¶ 21, App. 16. Together, these ILECs allegedly control 90 percent or more of the market for local telephone service in the 48 contiguous States. Id., ¶ 48, App. 26. In setting forth the grounds for § 1 relief, the complaint repeats these allegations in substantially similar language: “Beginning at least as early as February 6, 1996, and continuing to the present, the exact dates being unknown to Plaintiffs, Defendants and their co-conspirators engaged in a contract, combination or conspiracy to prevent competitive entry in their respective local telephone and/or high speed internet services markets by, among other things, agreeing not to compete with one another and to stifle attempts by others to compete with them and otherwise allocating customers and markets to one another in violation of Section 1 of the Sherman Act.” Id., ¶ 64, App. 30–31. The dissent greatly oversimplifies matters by suggesting that the Federal Rules somehow dispensed with the pleading of facts altogether. See post, at 1979 (opinion of STEVENS, J.) (pleading standard of Federal Rules “does not require, or even invite, the pleading of facts”). While, for most types of cases, the Federal Rules © 2020 Thomson Reuters. No claim to original U.S. Government Works. 22 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... eliminated the cumbersome requirement that a claimant “set out in detail the facts upon which he bases his claim,” Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (emphasis added), Rule 8(a) (2) still requires a “showing,” rather than a blanket assertion, of entitlement to relief. Without some factual allegation in the complaint, it is hard to see how a claimant could satisfy the requirement of providing not only “fair notice” of the nature of the claim, but also “grounds” on which the claim rests. See 5 Wright & Miller § 1202, at 94, 95 (Rule 8(a) “contemplate[s] the statement of circumstances, occurrences, and events in support of the claim presented” and does not authorize a pleader's “bare averment that he wants relief and is entitled to it”). 4 5 6 7 Commentators have offered several examples of parallel conduct allegations that would state a § 1 claim under this standard. See, e.g., 6 Areeda & Hovenkamp ¶ 1425, at 167–185 (discussing “parallel behavior that would probably not result from chance, coincidence, independent responses to common stimuli, or mere interdependence unaided by an advance understanding among the parties”); Blechman, Conscious Parallelism, Signalling and Facilitating Devices: The Problem of Tacit Collusion Under the Antitrust Laws, 24 N.Y.L. S. L.Rev. 881, 899 (1979) (describing “conduct [that] indicates the sort of restricted freedom of action and sense of obligation that one generally associates with agreement”). The parties in this case agree that “complex and historically unprecedented changes in pricing structure made at the very same time by multiple competitors, and made for no other discernible reason,” would support a plausible inference of conspiracy. Brief for Respondents 37; see also Reply Brief for Petitioners 12. The border in DM Research was the line between the conclusory and the factual. Here it lies between the factually neutral and the factually suggestive. Each must be crossed to enter the realm of plausible liability. The dissent takes heart in the reassurances of plaintiffs' counsel that discovery would be “ ‘ “phased” ’ ” and “limited to the existence of the alleged conspiracy and class certification.” Post, at 1987. But determining whether some illegal agreement may have taken place between unspecified persons at different ILECs (each a multibillion dollar corporation with legions of management level employees) at some point over seven years is a sprawling, costly, and hugely time-consuming undertaking not easily susceptible to the kind of line drawing and case management that the dissent envisions. Perhaps the best answer to the dissent's optimism that antitrust discovery is open to effective judicial control is a more extensive quotation of the authority just cited, a judge with a background in antitrust law. Given the system that we have, the hope of effective judicial supervision is slim: “The timing is all wrong. The plaintiff files a sketchy complaint (the Rules of Civil Procedure discourage fulsome documents), and discovery is launched. A judicial officer does not know the details of the case the parties will present and in theory cannot know the details. Discovery is used to find the details. The judicial officer always knows less than the parties, and the parties themselves may not know very well where they are going or what they expect to find. A magistrate supervising discovery does not—cannot—know the expected productivity of a given request, because the nature of the requester's claim and the contents of the files (or head) of the adverse party are unknown. Judicial officers cannot measure the costs and benefits to the requester and so cannot isolate impositional requests. Requesters have no reason to disclose their own estimates because they gain from imposing costs on rivals (and may lose from an improvement in accuracy). The portions of the Rules of Civil Procedure calling on judges to trim back excessive demands, therefore, have been, and are doomed to be, hollow. We cannot prevent what we cannot detect; we cannot detect what we cannot define; we cannot define ‘abusive’ discovery except in theory, because in practice we lack essential information.” Easterbrook, Discovery as Abuse, 69 B.U.L.Rev. 635, 638–639 (1989) (footnote omitted). The Court of Appeals also relied on Chief Judge Clark's suggestion in Nagler v. Admiral Corp., 248 F.2d 319 (C.A.2 1957), that facts indicating parallel conduct alone suffice to state a claim under § 1. 425 F.3d, at 114 (citing Nagler, supra, at 325). But Nagler gave no explanation for citing Theatre Enterprises (which upheld a denial of a directed verdict for plaintiff on the ground that proof of parallelism was not proof of conspiracy) as authority that pleading parallel conduct sufficed to plead a Sherman Act conspiracy. Now © 2020 Thomson Reuters. No claim to original U.S. Government Works. 23 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... that 8 Monsanto Co. v. Spray–Rite Service Corp., 465 U.S. 752, 104 S.Ct. 1464, 79 L.Ed.2d 775 (1984), and Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), have made it clear that neither parallel conduct nor conscious parallelism, taken alone, raise the necessary implication of conspiracy, it is time for a fresh look at adequacy of pleading when a claim rests on parallel action. Because Conley's “ ‘no set of facts' ” language was one of our earliest statements about pleading under the Federal Rules, it is no surprise that it has since been “cited as authority” by this Court and others. Post, at 1978. Although we have not previously explained the circumstances and rejected the literal reading of the passage embraced by the Court of Appeals, our analysis comports with this Court's statements in the years since Conley. See Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577(2005) (requiring “ ‘reasonably founded hope that the [discovery] process will reveal relevant evidence’ ” to support the claim (quoting Blue ChipStamps v. Manor Drug Stores, 421 U.S. 723, 741, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975));(alteration in Dura )); Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 526, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983) (“It is not ... proper to assume that [the plaintiff] can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged”); Wilson v. Schnettler, 365 U.S. 381, 383, 81 S.Ct. 632, 5 L.Ed.2d 620 (1961) (“In the absence of ... an allegation [that the arrest was made without probable cause] the courts below could not, nor can we, assume that respondents arrested petitioner without probable cause to believe that he had committed ... a narcotics offense”). Nor are we reaching out to decide this issue in a case where the matter was not raised by the parties, see post, at 1979, since both the ILECs and the Government highlight the problems stemming from a literal interpretation of Conley's “no set of facts” language and seek clarification of the standard. Brief for Petitioners 27–28; Brief for United States as Amicus Curiae 22–25; see also Brief for Respondents 17 (describing “[p]etitioners and their amici” as mounting an “attack on Conley's ‘no set of facts' standard”). The dissent finds relevance in Court of Appeals precedents from the 1940s, which allegedly gave rise to Conley's “no set of facts” language. See post, at 1979 – 1981. Even indulging this line of analysis, these cases do not challenge the understanding that, before proceeding to discovery, a complaint must allege facts suggestive of illegal conduct. See, e.g., Leimer v. State Mut. Life Assurance Co. of Worcester, Mass., 108 F.2d 302, 305 (C.A.8 1940) (“ ‘[I]f, in view of what is alleged, it can reasonably be conceived that the plaintiffs ... could, upon a trial, establish a case which would entitle them to ... relief, the motion to dismiss should not have been granted’ ”); Continental Collieries, Inc. v. Shober, 130 F.2d 631, 635 (C.A.3 1942) (“No matter how likely it may seem that the pleader will be unable to prove his case, he is entitled, upon averring a claim, to an opportunity to try to prove it”). Rather, these cases stand for the unobjectionable proposition that, when a complaint adequately states a claim, it may not be dismissed based on a district court's assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim 9 10 to the satisfaction of the factfinder. Cf. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974) (a district court weighing a motion to dismiss asks “not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims”). See Complaint ¶¶ 51, 64, App. 27, 30–31 (alleging that ILECs engaged in a “contract, combination or conspiracy” and agreed not to compete with one another). If the complaint had not explained that the claim of agreement rested on the parallel conduct described, we doubt that the complaint's references to an agreement among the ILECs would have given the notice required by Rule 8. Apart from identifying a 7-year span in which the § 1 violations were supposed to have occurred (i. e., “[b]eginning at least as early as February 6, 1996, and continuing to the present,” id., ¶ 64, App. 30), the pleadings mentioned no specific time, place, or person involved in the alleged conspiracies. This lack of notice contrasts sharply with the model form for pleading negligence, Form 9, which the dissent © 2020 Thomson Reuters. No claim to original U.S. Government Works. 24 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... says exemplifies the kind of “bare allegation” that survives a motion to dismiss. Post, at 1977. Whereas the model form alleges that the defendant struck the plaintiff with his car while plaintiff was crossing a particular highway at a specified date and time, the complaint here furnishes no clue as to which of the four ILECs (much less which of their employees) supposedly agreed, or when and where the illicit agreement took place. A defendant wishing to prepare an answer in the simple fact pattern laid out in Form 9 would know what to 11 12 13 14 answer; a defendant seeking to respond to plaintiffs' conclusory allegations in the § 1 context would have little idea where to begin. The dissent's quotations from the complaint leave the impression that plaintiffs directly allege illegal agreement; in fact, they proceed exclusively via allegations of parallel conduct, as both the District Court and Court of Appeals recognized. See 313 F.Supp.2d 174, 182 (S.D.N.Y.2003); 425 F.3d 99, 102– 104 (C.A.2 2005). From the allegation that the ILECs belong to various trade associations, see Complaint ¶ 46, App. 23, the dissent playfully suggests that they conspired to restrain trade, an inference said to be “buttressed by the common sense of Adam Smith.” Post, at 1985 – 1986, 1987 – 1988. If Adam Smith is peering down today, he may be surprised to learn that his tongue-in-cheek remark would be authority to force his famous pinmaker to devote financial and human capital to hire lawyers, prepare for depositions, and otherwise fend off allegations of conspiracy; all this just because he belonged to the same trade guild as one of his competitors when their pins carried the same price tag. The complaint quoted a reported statement of Qwest's CEO, Richard Notebaert, to suggest that the ILECs declined to compete against each other despite recognizing that it “ ‘might be a good way to turn a quick dollar.’ ” ¶ 42, App. 22 (quoting Chicago Tribune, Oct. 31, 2002, Business Section, p. 1). This was only part of what he reportedly said, however, and the District Court was entitled to take notice of the full contents of the published articles referenced in the complaint, from which the truncated quotations were drawn. See Fed. Rule Evid. 201. Notebaert was also quoted as saying that entering new markets as a CLEC would not be “a sustainable economic model” because the CLEC pricing model is “just ... nuts.” Chicago Tribune, Oct. 31, 2002, Business Section, p. 1 (cited at Complaint ¶ 42, App. 22). Another source cited in the complaint quotes Notebaert as saying he thought it “unwise” to “base a business plan” on the privileges accorded to CLECs under the 1996 Act because the regulatory environment was too unstable. Chicago Tribune, Dec. 19, 2002, Business Section, p. 2 (cited at Complaint ¶ 45, App. 23). In reaching this conclusion, we do not apply any “heightened” pleading standard, nor do we seek to broaden the scope of Federal Rule of Civil Procedure 9, which can only be accomplished “ ‘by the process of amending the Federal Rules, and not by judicial interpretation.’ ” 1 2 3 Swierkiewicz v. Sorema N. A., 534 U.S. 506, 515, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002) (quoting Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993)). On certain subjects understood to raise a high risk of abusive litigation, a plaintiff must state factual allegations with greater particularity than Rule 8 requires. Fed. Rules Civ. Proc. 9(b)-(c). Here, our concern is not that the allegations in the complaint were insufficiently “particular[ized],” ibid.; rather, the complaint warranted dismissal because it failed in toto to render plaintiffs' entitlement to relief plausible. See 9 W. Holdsworth, History of English Law 324–327 (1926). Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 283, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988). The Federal Rules do impose a “particularity” requirement on “all averments of fraud or mistake,” Fed. Rule Civ. Proc. 9(b), neither of which has been alleged in this case. We have recognized that the canon of expresio unius est exclusio alterius applies to Rule 9(b). See Leatherman v. Tarrant Cty. Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 25 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... 4 SEC v. Zandford, 535 U.S. 813, 818, 122 S.Ct. 1899, 153 L.Ed.2d 1 (2002); Bd. of Ed., 526 U.S. 629, 654, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999); 509 U.S. 764, 811, 113 S.Ct. 2891, 125 L.Ed.2d 612 (1993); 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989); 163 (1980) (per curiam); Davis v. Monroe County Hartford Fire Ins. Co. v. California, Brower v. County of Inyo, 489 U.S. 593, 598, Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d McLain v. Real Estate Bd. of New Orleans, Inc., 444 U.S. 232, 246, 100 S.Ct. 502, 62 L.Ed.2d 441 (1980); Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hospital Building Co. v. Trustees of Rex Hospital, 425 U.S. 738, 746, 96 S.Ct. 1848, 48 L.Ed.2d 338 (1976); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974); U.S. 319, 322, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972) (per curiam); S.Ct. 594, 30 L.Ed.2d 652 (1972) (per curiam); 23 L.Ed.2d 404 (1969) (plurality opinion); see also Cruz v. Beto, 405 Haines v. Kerner, 404 U.S. 519, 521, 92 Jenkins v. McKeithen, 395 U.S. 411, 422, 89 S.Ct. 1843, Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 554, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985) (Brennan, J., concurring in part and dissenting in part); Hoover v. Ronwin, 466 U.S. 558, 587, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) (STEVENS, J., dissenting); United Air Lines, Inc. v. Evans, 431 U.S. 553, 561, n. 1, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977) (Marshall, J., dissenting); Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 55, n. 6, 96 S.Ct. 1917, 48 L.Ed.2d 450 (1976) (Brennan, J., concurring in judgment). 5 See, e.g., EB Invs., LLC v. Atlantis Development, Inc., 930 So.2d 502, 507 (Ala.2005); Health & Social Servs. v. Native Village of Curyung, 151 P.3d 388, 396 (Alaska 2006); Department of Newman v. Maricopa Cty., 167 Ariz. 501, 503, 808 P.2d 1253, 1255 (App.1991); Public Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 385–386 (Colo.2001) (en banc); Clawson v. St. Louis Post–Dispatch, LLC, 906 A.2d 308, 312 (D.C.2006); Hillman Constr. Corp. v. Wainer, 636 So.2d 576, 578 (Fla.App.1994); Kaplan v. Kaplan, 266 Ga. 612, 613, 469 S.E.2d 198, 199 (1996); Wright v. Home Depot U.S.A., Inc., 111 Hawai‘i 401, 406, 142 P.3d 265, 270 (2006); Taylor v. Maile, 142 Idaho 253, 257, 127 P.3d 156, 160 (2005); Fink v. Bryant, 2001–CC– 0987, p. 4 (La.11/28/01), 801 So.2d 346, 349; Gagne v. Cianbro Corp., 431 A.2d 1313, 1318–1319 (Me.1981); Gasior v. Massachusetts Gen. Hospital, 446 Mass. 645, 647, 846 N.E.2d 1133, 1135 (2006); Ralph Walker, Inc. v. Gallagher, 926 So.2d 890, 893 (Miss.2006); Jones v. Montana Univ. System, 337 Mont. 1, 7, 155 P.3d 1247, 1252 (2007); Johnston v. Nebraska Dept. of Correctional Servs., 270 Neb. 987, 989, 709 N.W.2d 321, 324 (2006); Blackjack Bonding v. Las Vegas Munic. Ct., 116 Nev. 1213, 1217, 14 P.3d 1275, 1278 (2000); Shepard v. Ocwen Fed. Bank, 361 N.C. 137, 139, 638 S.E.2d 197, 199 (2006); Rose v. United Equitable Ins. Co., 2001 ND 154, ¶ 10, 632 N.W.2d 429, 434; State ex rel. Turner v. Houk, 112 Ohio St.3d 561, 562, 2007–Ohio–814, ¶ 5, 862 N.E.2d 104, 105 (per curiam); Moneypenney v. Dawson, 2006 OK 53, ¶ 2, 141 P.3d 549, 551; Gagnon v. State, 570 A.2d 656, 659 (R.I.1990); Farrier, 2003 SD 28, ¶ 4, 659 N.W.2d 20, 22 (per curiam); Osloond v. Smith v. Lincoln Brass Works, Inc., 712 S.W.2d 470, 471 (Tenn.1986); Association of Haystack Property Owners, Inc. v. Sprague, 145 Vt. 443, 446, 494 A.2d 122, 124 (1985); In re Coday, 156 Wash.2d 485, 497, 130 P.3d 809, 815 (2006) (en banc); Haines v. Hampshire Cty. Comm'n, 216 W.Va. 499, 502, 607 S.E.2d 828, 831 (2004); Warren v. Hart, 747 P.2d 511, 512 (Wyo.1987); see also Malpiede v. Townson, 780 A.2d 1075, 1082–1083 (Del.2001) (permitting dismissal only “where the court determines with reasonable certainty that the plaintiff could prevail on no set of facts that may be inferred from the well-pleaded allegations in the complaint” (internal quotation marks omitted)); Canel v. Topinka, 212 Ill.2d 311, 318, 288 Ill.Dec. 623, 818 N.E.2d 311, 317 (2004) (replacing “appears beyond © 2020 Thomson Reuters. No claim to original U.S. Government Works. 26 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... doubt” in the Conley formulation with “is clearly apparent”); In re Young, 522 N.E.2d 386, 388 (Ind.1988) (per curiam) (replacing “appears beyond doubt” with “appears to a certainty”); Barkema v. Williams Pipeline Co., 666 N.W.2d 612, 614 (Iowa 2003) (holding that a motion to dismiss should be sustained “only when there exists no conceivable set of facts entitling the non-moving party to relief”); Pioneer Village v. Bullitt Cty., 104 S.W.3d 757, 759 (Ky.2003) (holding that judgment on the pleadings should be granted “if it appears beyond doubt that the nonmoving party cannot prove any set of facts that would entitle him/her to relief”); Corley v. Detroit Bd. of Ed., 470 Mich. 274, 277, 681 N.W.2d 342, 345 (2004) (per curiam) (holding that a motion for judgment on the pleadings should be granted only “ ‘if no factual development could possibly justify recovery’ 6 7 8 ”); Oberkramer v. Ellisville, 706 S.W.2d 440, 441 (Mo.1986) (en banc) (omitting the words “beyond doubt” from the Conley formulation); Colman v. Utah State Land Bd., 795 P.2d 622, 624 (Utah 1990) (holding that a motion to dismiss is appropriate “only if it clearly appears that [the plaintiff] can prove no set of facts in support of his claim”); NRC Management Servs. Corp. v. First Va. Bank–Southwest, 63 Va. Cir. 68, 70, 2003 WL 23540085 (2003) ( “The Virginia standard is identical [to the Conley formulation], though the Supreme Court of Virginia may not have used the same words to describe it”). The majority is correct to say that what the Federal Rules require is a “ ‘showing’ ” of entitlement to relief. Ante, at 1965, n. 3. Whether and to what extent that “showing” requires allegations of fact will depend on the particulars of the claim. For example, had the amended complaint in this case alleged only parallel conduct, it would not have made the required “showing.” See supra, at 1974. Similarly, had the pleadings contained only an allegation of agreement, without specifying the nature or object of that agreement, they would have been susceptible to the charge that they did not provide sufficient notice that the defendants may answer intelligently. Omissions of that sort instance the type of “bareness” with which the Federal Rules are concerned. A plaintiff's inability to persuade a district court that the allegations actually included in her complaint are “plausible” is an altogether different kind of failing, and one that should not be fatal at the pleading stage. See also 5 Wright & Miller § 1202, at 89–90 (“[P]leadings under the rules simply may be a general summary of the party's position that is sufficient to advise the other party of the event being sued upon, to provide some guidance in a subsequent proceeding as to what was decided for purposes of res judicata and collateral estoppel, and to indicate whether the case should be tried to the court or to a jury. No more is demanded of the pleadings than this; indeed, history shows that no more can be performed successfully by the pleadings” (footnotes omitted)). Our decision in Dura Pharmaceuticals, Inc. v. Broudo, 544 U.S. 336, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), is not to the contrary. There, the plaintiffs failed adequately to allege loss causation, a required element in a private securities fraud action. Because it alleged nothing more than that the prices of the securities the plaintiffs purchased were artificially inflated, the Dura complaint failed to “provid[e] the defendants with notice of what the relevant economic loss might be or of what the causal connection might be between that loss and the [alleged] misrepresentation.” Id., at 347, 125 S.Ct. 1627. Here, the failure the majority identifies is not a failure of notice—which “notice pleading” rightly condemns—but rather a failure to satisfy the Court that the agreement alleged might plausibly have occurred. That being a question not of notice but of proof, it should not be answered without first hearing from the defendants (as apart from their lawyers). Similarly, in Associated Gen. Contractors of Cal., Inc. v. Carpenters, 459 U.S. 519, 103 S.Ct. 897, 74 L.Ed.2d 723 (1983), in which we also found an antitrust complaint wanting, the problem was not that the injuries the plaintiffs alleged failed to satisfy some threshold of plausibility, but rather that the injuries as alleged were not “the type that the antitrust statute was intended to forestall.” Id., at 540, 103 S.Ct. 897; see id., at 526, 103 S.Ct. 897 (“As the case comes to us, we must assume that the Union can prove the facts alleged in its amended complaint. It is not, however, proper to assume that the Union can prove facts that it has not alleged or that the defendants have violated the antitrust laws in ways that have not been alleged”). © 2020 Thomson Reuters. No claim to original U.S. Government Works. 27 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... 9 10 11 12 13 The Court suggests that the allegation of an agreement, even if credited, might not give the notice required by Rule 8 because it lacks specificity. Ante, at 1970 – 1971, n. 10. The remedy for an allegation lacking sufficient specificity to provide adequate notice is, of course, a Rule 12(e) motion for a more definite statement. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 514, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). Petitioners made no such motion and indeed have conceded that “[o]ur problem with the current complaint is not a lack of specificity, it's quite specific.” Tr. of Oral Arg. 14. Thus, the fact that “the pleadings mentioned no specific time, place, or persons involved in the alleged conspiracies,” ante, at 1971, n. 10, is, for our purposes, academic. The Court describes my reference to the allegation that the defendants belong to various trade associations as “playfully” suggesting that the defendants conspired to restrain trade. Ante, at 1971 – 1972, n. 12. Quite the contrary: An allegation that competitors meet on a regular basis, like the allegations of parallel conduct, is consistent with—though not sufficient to prove—the plaintiffs' entirely serious and unequivocal allegation that the defendants entered into an unlawful agreement. Indeed, if it were true that the plaintiffs “rest their § 1 claim on descriptions of parallel conduct and not on any independent allegation of actual agreement among the ILECs,” ante, at 1970, there would have been no purpose in including a reference to the trade association meetings in the amended complaint. It is ironic that the Court seeks to justify its decision to draw factual inferences in the defendants' favor at the pleading stage by citing to a rule of evidence, ante, at 1972 – 1973, n. 13. Under Federal Rule of Evidence 201(b), a judicially noticed fact “must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.” Whether Notebaert's statements constitute evidence of a conspiracy is hardly beyond reasonable dispute. The Court worries that a defendant seeking to respond to this “conclusory” allegation “would have little idea where to begin.” Ante, at 1971, n. 10. A defendant could, of course, begin by either denying or admitting the charge. The potential for “sprawling, costly, and hugely time-consuming” discovery, ante, at 1967, n. 6, is no reason to throw the baby out with the bathwater. The Court vastly underestimates a district court's case-management arsenal. Before discovery even begins, the court may grant a defendant's Rule 12(e) motion; Rule 7(a) permits a trial court to order a plaintiff to reply to a defendant's answer, see Crawford–El v. Britton, 523 U.S. 574, 598, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); and Rule 23 requires “rigorous analysis” to ensure that class certification is appropriate, General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982); see In re Initial Public Offering Securities Litigation, 471 F.3d 24 (C.A.2 2006) (holding that a district court may not certify a class without ruling that each Rule 23 requirement is met, even if a requirement overlaps with a merits issue). Rule 16 invests a trial judge with the power, backed by sanctions, to regulate pretrial proceedings via conferences and scheduling orders, at which the parties may discuss, inter alia, “the elimination of frivolous claims or defenses,” Rule 16(c)(1); “the necessity or desirability of amendments to the pleadings,” Rule 16(c)(2); “the control and scheduling of discovery,” Rule 16(c)(6); and “the need for adopting special procedures for managing potentially difficult or protracted actions that may involve complex issues, multiple parties, difficult legal questions, or unusual proof problems,” Rule 16(c)(12). Subsequently, Rule 26 confers broad discretion to control the combination of interrogatories, requests for admissions, production requests, and depositions permitted in a given case; the sequence in which such discovery devices may be deployed; and the limitations imposed upon them. See 523 U.S., at 598–599, 118 S.Ct. 1584. Indeed, Rule 26(c) specifically permits a court to take actions “to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense” by, for example, disallowing a particular discovery request, setting appropriate terms and conditions, or limiting its scope. In short, the Federal Rules contemplate that pretrial matters will be settled through a flexible process of give and take, of proffers, stipulations, and stonewalls, not by having trial judges screen allegations for © 2020 Thomson Reuters. No claim to original U.S. Government Works. 28 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) 127 S.Ct. 1955, 167 L.Ed.2d 929, 75 USLW 4337, 2007-1 Trade Cases P 75,709... their plausibility vel non without requiring an answer from the defendant. See Societe Internationale Pour Participations Industrielles Et Commerciales, S.A. v. Rogers, 357 U.S. 197, 206, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958) (“Rule 34 is sufficiently flexible to be adapted to the exigencies of particular litigation”). And should it become apparent over the course of litigation that a plaintiff's filings bespeak an in terrorem suit, the district court has at its call its own in terrorem device, in the form of a wide array of Rule 11 sanctions. See Rules 11(b), (c) (authorizing sanctions if a suit is presented “for any improper purpose, such as to harass or 14 15 to cause unnecessary delay or needless increase in the cost of litigation”); see Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., 498 U.S. 533, 111 S.Ct. 922, 112 L.Ed.2d 1140 (1991) (holding that Rule 11 applies to a represented party who signs a pleading, motion, or other papers, as well as to attorneys); Atkins v. Fischer, 232 F.R.D. 116, 126 (D.D.C.2005) (“As possible sanctions pursuant to Rule 11, the court has an arsenal of options at its disposal”). Given his “background in antitrust law,” ante, at 1968, n. 6, Judge Easterbrook has recognized that the most effective solution to discovery abuse lies in the legislative and rulemaking arenas. He has suggested that the remedy for the ills he complains of requires a revolution in the rules of civil procedure: “Perhaps a system in which judges pare away issues and focus [on] investigation is too radical to contemplate in this country—although it prevailed here before 1938, when the Federal Rules of Civil Procedure were adopted. The change could not be accomplished without abandoning notice pleading, increasing the number of judicial officers, and giving them more authority .... If we are to rule out judge-directed discovery, however, we must be prepared to pay the piper. Part of the price is the high cost of unnecessary discovery—impositional and otherwise.” Discovery as Abuse, 69 B.U.L.Rev. 635, 645 (1989). It would be quite wrong, of course, to assume that dismissal of an antitrust case after discovery is costless to plaintiffs. See Fed. Rule Civ. Proc. 54(d)(1) (“[C]osts other than attorneys' fees shall be allowed as of course to the prevailing party unless the court otherwise directs”). End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works. © 2020 Thomson Reuters. No claim to original U.S. Government Works. 29

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