Should the Florida Courts Adopt the Federal Twombly Standard For Motions to Dismiss?

For half a century, plaintiffs in federal court facing motions to dismiss dutifully cited the familiar Conley v. Gibson mantra that the motion must be denied unless it appears beyond doubt that the “plaintiff can prove no set of facts in support of [the] claim.” The Supreme Court’s 2007 Twombly decision and its 2009 companion case, Iqbal, changed that, adopting for federal courts a “plausibility” standard for evaluating the sufficiency of complaints on motions to dismiss.  

Although Florida Rule of Civil Procedure 1.110 is based on and contains very similar language to Federal Rule of Civil Procedure 8, Florida courts, at least formally, still adhere to the Conley standard. But just as the Florida Supreme Court has abandoned the Frye test for determining whether expert evidence is admissible in favor of the federal Daubert standard, and is considering adopting the federal Celotex standard for determining whether summary judgment is appropriate, perhaps now is the time for the Florida courts to also adopt the Twombly standard for motions to dismiss. As this article will explain, the Florida courts should formally recognize Twombly’s plausibility test as the motion to dismiss standard because the text of rule 1.110 requires it and many Florida courts are applying the functional equivalent of it. 

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