Tuesday, May 11, 2010

Dwyane Wade Cites Iqbal!

Hey, two of my favorite things, together again:
First, Plaintiff again fails to plead sufficient facts to clear the pleading hurdle set forth by the Supreme Court in Ascroft v. Iqbal, 129 S. Ct. 1937 (2009) and Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). As the Court recognized in the Order, when facing a Rule 12(b)(6) motion to dismiss “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.” Order at 4 (quoting Twombly, 550 U.S. at 555.)

In Twombly, the Supreme Court confirmed that in order to survive a motion to dismiss under Rule 12(b)(6) an antitrust complaint must contain factual allegations which are “enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true.” Twombly, 550 U.S. at 555.

Citing Iqbal, this Court also reminded the parties that “Plaintiff must plead enough facts to state a plausible basis for the claim.” Order at 4. Ultimately, the facts set forth in the complaint must be sufficient to “nudge the[ ] claims across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
Let me offer some unsolicited advice (the best kind!) to my pal Bob Turken.

Your motion was plenty strong without a throwaway Iqbal argument (you can read the whole thing here).

Do you really think Judge Marra will blow past your smartly presented and credible "market definition" deficiency argument ("South Florida NBA sports stars who have a funnily-spelled first name" or something), conclude that indeed a proper market definition was provided but then bounce it on Iqbal plausibility grounds?

If he did, would that be what you want to be arguing about on appeal?

Reminds me of that old brief-writing maxim I tell my associates -- get rid of arguments four, five and six.

Otherwise, nicely done and I think Wade's in pretty good shape here.


Hiring Ana said...

Richard Cole praises own legal skills:

Cole acknowledged that he helped Gardiner on matters of law and procedures.

"Listen, I've been a trial lawyer for 35 years, so if any lawyers or the judge thought I was doing the right thing on how to conduct a trial, then that might be expected," he said.

just wonderin said...

If someone calls the shum on a previous post, and a new post goes up, is the shum still in effect or does it need to be called again?

Anonymous said...

If Shum falls in a prior post, does it make a sound?

fake george berkeley said...

6pm-- "That is a philosophical riddle that raises questions regarding observation and knowledge of reality."

The short answer- it only makes a sound if there is a sound recorder device nearby.

Shumie time referee said...

5:29- the simple answer is NO.

6D-F234(1) states "Once called, a shumie remains in effect for that working day."

I hope that answers your question.

Anonymous said...

If a tree falls in a forest on a mime does anyone hear it?

--No one hears, but everyone cares.
"Because a mime is a terrible thing to waste."

Anonymous said...

Dick, just plain Dick (Cole).