When Keton Met Twombly-Iqbal: Implications for Pretext Challenges to Eminent Domain
Willamette Law Review
Some of the most controversial Supreme Court decisions in recent years have involved the seemingly mundane topics of property rights and interpretation of the Federal Rules of Civil Procedure. First, in 2005, the Court's decision in Kelo v. City of New London1 ignited public outrage and sparked demands that states take action to impose more restrictive limits on government's use of eminent domain. Kelo captured media attention and galvanized an eminent domain reform movement that, as of the end of 2008, had produced state-level reform in forty-three states. It generated keen interest and vigorous debate among scholars, students, government officials, attorneys specializing in eminent domain, developers, activists, and political commentators. Eminent domain issues remain of great interest to the public and the media continues to focus attention on eminent domain injustices. The Court's 2007 decision in the antitrust case Bell Atlantic Corp. v. Twombly "retire[d] ,, at least in part, Conley v. Gibson's longstanding interpretation that had governed pleadings and motions to dismiss for failure to state a claim upon which relief can be granted under the Federal Rules of Civil Procedure, in favor of a plausibility standard.
Finally, the Court's 2009 decision Ashcroft v. Iqbal' confirmed that Twombly was not limited to antitrust cases under the Sherman Act, but covered all cases governed by the Federal Rules of Civil Procedure. The Court in Iqbal went on to announce a two-pronged test for examining motions under Rule 12(b)(6) that may prove to make it even more difficult for complaints to survive such motions to dismiss. While the Twombly-Iqbal duo attracted little media or public attention, it startled judges, litigators, and scholars. It has generated consternation, confusion, controversy, and debate among them. It has apparently gained political attention as evidenced by a bill introduced in the United States Senate by Senator Arlen Specter that, if enacted in its present form, would provide that "a Federal Court shall not dismiss a complaint under Rule 12(b)(6) or (e) of the Federal Rules of Civil Procedure, except under the standards set forth by the Supreme Court of the United States in Conley v. Gibson." 'The Twombly-Iqbal duo, like Kelo, has caused more than a little upheaval. What happens when Kelo meets Twombly-Iqbal? This article explores the possible impact of Twombly-Iqbal on pretext challenges to takings under the power of eminent domain. It suggests that the procedural changes wrought by Twombly-Iqbal will make it even more difficult for landowners to be successful in bringing such challenges on the federal level. With federal opportunities for challenges thus further curtailed, challenges to takings based on state law become increasingly important. At the same time, states that utilize the prior interpretation of pleadings and Rule 12(b)(6) established by Conley under the Federal Rules of Civil Procedure will be faced with the question of whether or not to adopt all, some, or any of the modifications created by Twombly-Iqbal. This article also suggests that use at the state level of the Twombly-Iqbal test may undermine the viability of pretext challenges based on state law. States' decisions of whether or not, and if so, how, to modify state rules of procedure are usually made on a transsubstantive basis, not dictated by their impact in one area of law. However, the importance that citizens attach to property rights has been made clear by the public outrage that followed Kelo and the subsequent demand for reform at the state level. Thus, it is important that the impact of Twombly-Iqbal on states' eminent domain laws, particularly those that address pretextual takings in which eminent domain might be abused to benefit private parties, be kept in mind as states consider changes to their procedural rules. Obviously, eminent domain reformers who intend to protect or establish meaningful pretext challenges to eminent domain on the state level need to be on guard against states' incorporation of Twombly-Iqbal in state rules of civil procedure.
Carol L. Zeiner, When Kelo Met Twombly-IQBAL: Implications for Pretext Challenges to Eminent Domain, 46 WILLAMETTE L. REV. 201 (2009).