Delaware Supreme Court Reverses Chancery on Federal Motion to Dismiss Standard

Cambium Ltd. v. Trilantic Capital Partners, No. 363, 2011 (Del. Supr, Jan. 20, 2012), read Order here.

This Order of the Delaware Supreme Court applied the recent decision of Delaware’s High Court in the Central Mortgage case in which it clarified that Delaware has not adopted the federal standard for motions to dismiss under Rule of Civil Procedure 12(b)(6) as described in the U.S. Supreme Court’s Twombly and Iqbal decisions, despite the truism that the Delaware Rules of Civil Procedure are generally based on the Federal Rules of Civil Procedure. The recent Delaware Supreme Court decision in Central Mortgage taking this position was highlighted here.  The foregoing summary also includes links to other commentary on this blog about this issue.

The recent Court of Chancery decision in the Winshall case responded to the clarification in the Central Mortgage case, especially in an expansive footnote 23, as noted here.  The Delaware Supreme Court in its Order described the Delaware standard for a motion to dismiss under Rule 12(b)(6) as:

 … a “minimal” one. In Central Mortgage, comparing Delaware’s “conceivability” standard to the federal  “plausibility” standard, this Court explained that the former “is more akin to possibility while the federal plausibility standard falls somewhere beyond mere possibility but short of probability.”