What does it take to nudge an Iqbal claim across the finish line?

When the Supreme Court handed down Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009) a few months ago, all the attention focused on Iqbal's failed attempt to blame former Attorney General John Ashcroft for Iqbal's detention in the aftermath of the 9/11 attacks. Civil litigators took away a different lesson from Iqbal: it got a little easier for trial courts to dismiss lawsuits without discovery. It is not enough for lawsuits to allege a conceivable civil rights violation; the lawsuit must allege a plausible violation. If you think this is a distinction without a difference, keep reading.

The case is Rutherford v. Katonah-Lewisboro School District, 2009 WL 3755382 (S.D.N.Y. Nov. 3, 2009), a case decided by Judge McMahon. This case is notable for other reasons, discussed here, but it also highlights what Iqbal has done to some civil rights cases. This case arises from allegations that a school teacher behaved inappropriately at a science fair. Judge McMahon starts off by observing that "in the suburbs, where education is the only priority, there us hyper-sensitivity on the part of all concerned whenever something remotely out of the ordinary happens at local schools."

The strange event here was that Rutherford allegedly destroyed student work and raised her voice. The school board decided to send her to a medical examination to see if she was physically or mentally fit to perform her duties. The board referenced this on its website, though it did not mention Rutherford by name, calling her only "Employee No. 785." She claims in the lawsuit that the school board stigmatized her with an allegation of mental instability only because the parents of the students who accused her of losing it at the science fair were on the school board.

Although Rutherford claims that the website reference violated her right to medical privacy and shocked the conscience in violation of the Fourteenth Amendment, she cannot proceed with this claim. Judge McMahon notes that Iqbal changes the ground rules for surviving a motion to dismiss. You have to allege enough facts to "nudge [its] claims across the line from conceivable to plausible." Conceivable is not the same thing as plausible. A rough way to see it is this way: conceivable means perhaps a 40 percent chance that the allegations support a claim. Plausible means greater than 50 percent.

Judge McMahon suggests that Rutherford's privacy and "shocks the conscience" claims are conceivable. But not plausible. The Complaint suggests that the school board did not intend to humiliate plaintiff; the website reference did not mention her name or gender. While the Complaint alleges that the school board acted "maliciously," without allegations to back it up, this buzzword is not going to cut it in the post-Iqbal world. The court adds, "It is simply not possible to infer malice from nothing more than the fact that the complaining children were the children of a board of education member. ... [W]hile it is conceivable that Defendants could have acted from the base motive of wanting to appease the complaining children's parent, no fact alleged in the complaint makes it plausible to think that Defendants did so."