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At present, there is only one Kentucky case that mentions Bell Atl. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007), and there are no cases that mention Ashcroft v. Iqbal, ––– U.S. ––––, ––––, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).  The one case that mentions Twombly is designated “Not To Be Published.”  That case, Espinosa v. Jefferson/Louisville Metro. Gov’t, 2009 WL 277488 (Ky. App. 2009), citing Twombly states, “Factual allegations must be enough to raise a right to relief above the speculative level.”  It does not discuss the broader plausibility standard adopted by the federal cases. 

Having decided not to publish the one opinion mentioning either Twombly or Iqbal raises the question of whether Kentucky will adopt the plausibility standard for motions to dismiss.  A recent Kentucky Supreme Court decision, Fox v. Grayson, 317 S.W.3d 1 (Ky. 2010), clearly states Kentucky’s standard governing motions to dismiss for failure to state a claim under CR 12.02 and does not mention the plausibility standard.  Reading between the lines, is the Supreme Court suggesting Kentucky is not interested in adopting the plausibility standard? 

 The likely answer is that the Espinosa case was not a good case by which to consider the Twombly/Iqbal plausibility standard.  That case involved pleading by a pro-se litigant.  As for the Fox case, none of the parties to that case cited to either Twombly or Iqbal in their arguments.  The issue was never before the Court.

Lastly, pursuant to CR 76.28(4)(c), “if there is no published opinion that would adequately address the issue before the court,” an unpublished Kentucky appellate decision rendered after January 1, 2003 may be cited for consideration.  Thus, Kentucky practitioners can ask the courts to consider Espinosa on a motion to dismiss.  For these reasons, it is fair to conclude that Kentucky has at least cracked open the door for considering the Twombly/Iqbal plausibility standard.

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