The opinion of the court was delivered by: John A. Gorman United States Magistrate Judge
Wednesday, 09 February, 2011 04:12:14 PM
Clerk, U.S. District Court, ILCD
The parties have consented to have this case heard to judgment by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c), and the District Judge has referred the case to me. Now before the court are two motions to dismiss (#179 and 180). The motions are fully briefed, and I have carefully considered the arguments presented. As discussed below, the motions are DENIED.
This action involves two consolidated cases, 08-4046 and 10-4039. The first motion to dismiss concerns Count IV of the Amended Third Party Complaint for contribution (Doc. #173) in 10-4039; the second motion to dismiss concerns Count IV of the Second Amended Third Party Complaint for contribution (#172) in 08-4046. The motions are substantively identical and for simplicity's sake will be dealt with as a single motion.
MOTIONS TO DISMISS GENERALLY
In the Supreme Court's two most recent articulations of the standards that govern motions to dismiss, the Court has made it clear that, while notice pleading is still the rule, a plaintiff is obliged to plead more than "labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atlantic Corp. v. Twombly, -- U.S. --, 127 S. Ct. 1955, 1964 -1965 (2007). The complaint must include enough factual allegations to "to raise a right to relief above the speculative level," because:
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.
In the second case, Ashcroft v. Iqbal, - US -, 129 S.Ct. 1937 (2009), the Court emphasized that Twombly was based on two "working principles." First, a court need not accept as true allegations that are mere legal conclusions, or threadbare recitals of the elements of a claim, supported by mere conclusory statements. Second, only a "plausible" claim for relief will survive a motion to dismiss. Determining if a complaint is plausible requires the court to be "context specific". The analysis is to begin by eliminating from consideration any "conclusions" and then determining whether the facts alleged are equally indicative of legal conduct as of illegal conduct. In order to tip the scale in favor of plausibility, the facts must reasonably suggest illegal conduct. Moreover, if a plaintiff is "armed with nothing more than conclusions," he is not entitled to discovery to attempt to discover facts that might support a purely speculative claim. Id. at 1949.
The Seventh Circuit has summarized the meaning of the "plausibility" standard. In In re Text Messaging Antitrust Litigation, - F.3d -, Case No. 10-8037, 2010 WL 5367383, Dec. 29, 2010 (7th Cir.), the Court of Appeals noted:
The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." 129 S. Ct. at 1949. This is a little unclear because plausibility, probability, and possibility overlap. Probability runs the gamut from a zero likelihood to a certainty. What is impossible has a zero likelihood of occurring and what is plausible has a moderately high likelihood of occurring. The fact that the allegations undergirding a claim could be true is no longer enough to save a complaint from being dismissed; the complaint must establish a nonnegligible probability that the claim is valid; but the probability need not be as great as such terms as "preponderance of the evidence" ...