Vermont has long followed the standard set forth in Conley v. Gibson, 355 U.S. 41, 47 (1957), for deciding a motion to dismiss under Rule 12(b)(6): courts must take the factual allegations in the complaint as true, and consider whether “it appears beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.” Alger v. Dep’t of Labor & Indus., 2006 VT 115, ¶ 12, ___ Vt. ___, 917 A.2d 508 (quotations omitted). See Levinsky v. Diamond, 140 Vt. 595, 600-01, 442 A.2d 1277, 1280-81 (1982) (citing Conley, 355 U.S. at 45-46).
In Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1959 (2007), the Court “retired” the “no set of facts” language of Conley, finding that it had been misunderstood. Instead, the Twombly Court held, a complaint that does not state a “plausible” claim as measured by the substantive law fails to state a claim. In Colby v. Umbrella, Inc., 2008 VT 20 ¶ 5 n. 1, the Vermont Supreme Court rejected what it characterized as Twombly’s adoption of a “heightened” pleading standard. “[W]e have relied on the Conley standard for over twenty years, and are in no way bound by federal jurisprudence in interpreting our state pleading rules. We recently reaffirmed our minimal notice pleading standard in Alger, 2006 VT 115, ¶ 12, and are unpersuaded by the dissent’s argument that we should now abandon it for a heightened standard.”
