If you haven’t been closely following Federal Civil Procedure, there has been a question over the past few months whether Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007) changed the 12(b)(6) pleading requirements or not. Twombly clearly rejected the rule that a complaint may not be dismissed "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," but no one has really figured out what the new standard is (other than the word "plausibility" shows up a lot), and the opinion specifically says it is not creating a new standard.

The Third Circuit addressed the question in detail yesterday, leaving much to the future, but generally holding:

The issues raised by Twombly are not easily resolved, and likely will be a source of controversy for years to come. Therefore, we decline at this point to read Twombly so narrowly as to limit its holding on plausibility to the antitrust context.Reading Twombly to impose a “plausibility” requirement outside the § 1 context, however, leaves us with the question of what it might mean. “Plausibility” is related to the requirement of a Rule 8 “showing.” In its general discussion, the Supreme Court explained that the concept of a “showing” requires only notice of a claim and its grounds, and distinguished such a showing from “a pleader’s ‘bare averment that he wants relief and is entitled to it.’” Twombly, 127 S. Ct. at 1965 n.3. While Rule 12(b)(6) does not permit dismissal of a well-pleaded complaint simply because “it strikes a savvy judge that actual proof of those facts is improbable,” the “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id at 1965.

The Supreme Court’s Twombly formulation of the pleading standard can be summed up thus: “stating . . . a claim requires a complaint with enough factual matter (taken as true) to suggest” the required element. Id. This “does not impose a probability requirement at the pleading stage,” but instead “simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of” the necessary element. Id.

This rule [8(a)(2)] requires not merely a short and plain statement, but instead mandates a statement “showing that the pleader is entitled to relief.” That is to say, there must be some showing sufficient to justify moving the case beyond the pleadings to the next stage of litigation.

The opinion is available here.