Traditionally, federal courts only required what were called “notice pleadings”.  This meant that the pleading that started a lawsuit would broadly and generally state enough facts to give the defendant notice of the claim. Thereafter, the specific facts were determined through the discovery process of the lawsuit.  Then, the U.S. Supreme Court reversed this general pleading requirement and required specific fact intensive pleadings in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009).  The Supreme Court has explained that “only a complaint that states a plausible claim for relief survives a motion to dismiss” pursuant to Rule 12(b)(6), leading a reviewing court to engage in a “context-specific” inquiry that “requires [it] to draw on its judicial experience and common sense.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950 (2009). Under this standard, a pleading may not simply offer “labels and conclusions,” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949. Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, which is to say that there must be “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 129 S. Ct. at 1949. Essentially, a plaintiff must provide “enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element.Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).

A recent federal district court opinion laid out a roadmap for the type of specific proof required.  This case, Hofferica v St. Mary Medical Center, involved an FMLA claim and also sets forth the manner in which an FMLA case needs to be plead along with significant law on the subject.  It appears that the Rule 12(b) motion to dismiss is going to eventually evolve into a “mini-summary judgment” type proceeding with much evidence being attached to pleadings.  In Hofferica, the trial judge’s opinion even mentions that the plaintiff could have attached to the pleadings evidence of communication being relied on.  These kinds of proceedings usually build on each other with attorneys following the lead of opinions and what others are doing.  So, look for the motion to dismiss because of the insufficiency of the pleadings to increase.  Also, this may be a new profit center for defense attorneys?