19-4 Comparing Texas and Federal Pleading Requirements
In the years since 2007, federal pleading standards have experienced a sea change. In light of this change, how do Texas pleading standards compare with current federal pleading standards?
The Twombly27 and Iqbal28 cases are the two U.S. Supreme Court opinions most instrumental in revising federal pleading requirements. Prior to Twombly, federal courts had analyzed challenges to pleadings based on "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."29 Twombly retired this rule30 and announced a "plausibility" standard for pleadings as "[t]he need at the pleading stage for allegations plausibly suggesting (not merely consistent with)" an entitlement to relief.31 "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, 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 the elements of a cause of action will not do."32
To evaluate compliance with the federal plausibility standard, federal pleadings are analyzed in a two-step process. First, factual allegations are distinguished from conclusory allegations, and only factual allegations are accepted as true for purposes of the second step.33 Second, the factual allegations, accepted as true, are assessed to determine whether they show a plausible entitlement to relief rising beyond mere speculation or a mere inference of the possibility of misconduct.34 Complaints that do not pass this analysis do not survive.
Is this federal "plausibility standard" for pleadings potentially applicable to Texas pleadings? Although the Texas Supreme Court has not yet fully addressed the question,35 some Texas courts of appeals have suggested the answer is yes,36 equating standards for the new Texas rule governing motions to dismiss37 with standards for a federal 12(b)(6) motion to dismiss.38
On the other hand, differences in language between the Texas and federal rules suggest an argument to the contrary.39 The U.S. Supreme Court emphasizes the wording of Fed. R. Civ. P. 8(b), which requires "showing that the pleader is entitled to relief" as justification for the necessity of evaluating plausibility of the claim at the pleading stage.40 The Texas rule bearing the greatest similarity in wording is Tex. R. Civ. P. 47(a), requiring "a short statement of the cause of action sufficient to give fair notice of the claim involved" with no mention of "showing that the pleader is entitled to relief." And Texas, unlike the federal rules, further clarifies the Texas "fair notice" pleading standard by stating that pleadings...
