A student’s allegation that Indiana University made an implied contract never to expel him (despite his dismal academic performance) gave the Seventh Circuit another opportunity to address the interplay between Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Conley v. Gibson, 335 U.S. 41 (1957). In Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599 (7th Cir. 2009), the court went through the now-familiar mantras that pleading only “bare legal conclusions” is not sufficient to survive a Rule 12(b)(6) motion, because Twombly demands more than a “formulaic recitation of the cause of action’s elements.” Rather, Twombly requires a level of “facial plausibility” at the pleadings stage that raises the plaintiff’s right to relief above the speculative level.
After listing the Twombly requirements, however, the court made the surprising observation that federal pleading standards actually have not changed materially since 1957: “Our system operates on a notice pleading standard; Twombly and its progeny do not change this fact. . . . Under Conley, just as under Twombly, it is not enough to give a threadbare recitation of the elements of a claim without factual support.”
Ultimately, the court concluded that the plaintiff’s implied contract claim was lacking, because it alleged no facts or detail, such as “What was the contract? The promises made? The consideration? The nature of the breach?” Id. In short, despite its protestations that Conley’s liberal pleading standard is alive and well, the court applied a very Twombly-esque formulation. Bissessur should give plaintiffs in the Seventh Circuit pause as to whether Conley will save a complaint that is short on details.