I don’t think there is a better example of bad facts making bad law than the Ashcroft v. Iqbal case. A terrorist sues the then sitting Attorney General, alleges a wide-ranging, worldwide conspiracy, and basically tells the court, “Let me depose AG John Ashcroft and FBI Director Louis Freeh and then I will have all the facts I need to get by this 12(b)(6) motion.” In any event, after the Supreme Court decisions in Twombly in 2007, and Iqbal in 2009, defense lawyers love to get out what I call their Twombly/Iqbal red pencils and nit-pick pleadings trying to get them dismissed.


The issue came up recently in the Northern District of Oklahoma in Kruse v. Travelers Home and Marine Insurance Company.1

Mark and Donetta Kruse had a water leak at their home. They reported it to Travelers, who sent out an adjuster. The adjuster denied the claim, never provided an estimate, and closed the claim without notifying the Kruses or even giving a reason for the denial. Travelers refused to hire an engineer to inspect the property so the Kruses had to hire their own engineer. Travelers refused to look at the report by the engineer hired by the Kruses.

After the Kruses filed their original complaint, Travelers moved to dismiss arguing that the Kruses allegations were conclusory and did not meet the level required by Twombly/IqbalI. The court granted the motion but allowed the Kruses to re-plead. The Kruses filed an amended complaint. Not to be deterred in their effort to delay and thwart the policyholder Travelers filed another motion to dismiss saying that the Kruses had simply “repackaged” their original complaint. The court looked at the amended complaint and decided it was specific enough and denied the second motion to dismiss. I could not get access to the two complaints to compare them. I wish I could. I bet there is little difference between the two. How could there be? No facts had changed. This happened to me dozens of times during the Hurricane Ike litigation. It is the most ridiculous and colossal waste of court and litigant time and resources I have ever seen. The only winner is the defense lawyer, who keeps billing and billing and billing while he files motion to dismiss after motion to dismiss hoping the court finally pulls the plug.

The Kruse court set out what the parties agreed to be the elements of bad faith in Oklahoma. A claim of bad faith under Oklahoma law requires a plaintiff to show:

(1) claimant was entitled to recover under the insurance policy at issue; (2) the insurer had not reasonable basis for delaying payment; (3) the insurer did not deal fairly and in good faith with the claimant; and (4) the insurer’s violation of its duty of good faith and fair dealing was the direct cause of the claimant’s injury.

The Kruses were able to assign facts in their case to these four elements and use enough words to pass muster. Once a plaintiff has met its burden, the mere denial of the facts by the defendant is not basis for dismissal. I think the best method to prepare a federal complaint is to start with an outline where you put each element of bad faith (or whatever you are suing for) on a separate sheet of paper. Then assign facts of your case to each element. Then incorporate those facts into the complaint. And remember, keep writing until the bell rings.

1 Kruse v. Travelers Home and Marine Ins. Co., No. 15-444, 2015 WL 834203 (N.D. Okla. December 8, 2015).