Now, a little more than six months after the USSC issued its opinion in Ashcroft v. Iqbal, the impact of the decision is still being felt. Readers of this blog may recall a previous post indicating that Iqbal was arguably the most important case decided last term. That statement was based on the fact that Iqbal promised to have a systemic effect. To date Iqbal has not disappointed. It has been cited frequently by federal courts. A quick check using KeyCite shows -
1. A total of 7032 documents (cases, briefs, treatises, articles, etc.) have cited Iqbal.
2. Headnote 12, the headnote that deals with the new threshold test - to survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face - i.e., the new "plausibility" test, has been cited by 2789 federal courts apparently for the purpose of examining plaintiff's case for possible dismissal.
3. Headnote 12 has also been cited by four state courts and one tribal court for the same proposition. States that have rules of civil procedure based on the FRCP may be moving to adoption of Iqbal or at least some consideration of the the viability of the Iqbal plausibility requirement to state procedural analysis.
Of course, Iqbal is a complex case that deals with many issues not the least of which is governmental liability. We can't tell without a close examination of all 2789 federal cases that apply Iqbal if it is being used solely as a means to dismiss cases. More likely, it is being used even-handedly to weed out factually weak cases. Regardless, it seems clear that every future Memorandum in support of a 12(b)(6) motion will have to cite it.