Analyzing data from 23 federal district courts, Federal Judicial Center researchers have concluded that while more motions to dismiss were filed in civil litigation after the U.S. Supreme Court adopted a plausibility pleading standard, there was no discernible increase in the rate at which a grant of a motion to dismiss terminated the case. The center’s March 2011 report is based on a study that compared motion activity in 2006 and 2010 and included “an assessment of the outcome of motions in orders that do not appear in the computerized legal reference systems such as Westlaw. Statistical models were used to control for such factors as differences in levels of motion activity in individual federal district courts and types of cases.”

According to the researchers, at first look, it appeared that “motions to dismiss for failure to state a claim were more likely to [result in a] grant [of] all or some of the relief requested in 2010 than in 2006.” But a closer look apparently revealed overall “that the increase extends only to motions granted with leave to amend. No increase was found in motions granted without leave to amend.” In tort actions, the rate of grants with amendment increased 7.7 percent between 2006 and 2010, while grants without amendment decreased 5.9 percent in that time. The report cautions that results could include factors unrelated to the U.S. Supreme Court rulings, “such as differences across district courts, differences across types of cases, and differences in the presence of an amended complaint.” Still, the study also showed that, in tort cases, courts dismissed all of a plaintiff’s claims 4.5 percent more often in 2010 than in 2006.

The authors conclude that this type of assessment is “complicated” and call for further study, noting some of the weaknesses in their data. They are conducting a “follow-up on the outcome of cases in which the plaintiff had an opportunity to amend the complaint” to determine “the extent to which complaints that are amended are challenged by subsequent motions to dismiss, and the extent to which those motions are granted without leave to amend.”