Twombly Pleading

Currently, Mississippi is still a notice pleading state.  However, there is a trend and now requirements for heightened pleadings.  I expect this to start to trickle down to state court more in the future although most state judges have not been too receptive as of yet.  In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the United States Supreme Court held that heightened pleadings are required in  Federal civil cases which require plaintiffs to include enough facts in their complaint to make it plausible — not merely possible or conceivable — that they will be able to prove facts to support their claims.  The United States Supreme Court later in Ashcroft v. Iqbai 556 U.S. 662 (2009) confirmed that this standard applied to all civil actions in federal court. 

The Court in Ashcroft also provided guidance as to how lower courts should apply the Bell Atlantic Corp. v. Twombly test:

"Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. ... Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying plead­ings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal con­clusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief. Our decision in Twombly illustrates the two-pronged approach."

As such, you need to be really detailed in pleading your cause of action in federal court.  Thus far, some states have embraced the decision and applied it.  Tennessee where I also practice has rejected it.  Thus far, Mississippi has not addressed the issue either way.  Based on the current trends regarding medical malpractice cases in Mississippi in particular, I would suggest heightened and specific facts be alleged particularly if the statute of limitations is close in order to not be the first test case.