In what may result in a fundamental transformation of pleadings challenges, the Second Circuit is set to address the propriety of a so-called Iqbal hearing – an apparent first of its kind.

In Palin v. New York Times Co., 17-cv-4853 (S.D.N.Y.), former Alaska governor and vice presidential candidate Sarah Palin charged the New York Times with defamation stemming from an op-ed that allegedly linked her with Jared Lee Loughner’s fatal shooting spree at a political event in 2011 – which the Times published on the evening of James Hodgkinson’s attack on members of Congress this June.  Despite subsequent revisions to the article, Palin filed a one-count complaint in the Southern District of New York, which the New York Times promptly moved to dismiss under Rule 12(b)(6).

Following briefing, District Judge Jed Rakoff found that it was a close call whether Palin sufficiently alleged facts supporting an inference of actual malice, an element required for a claim of defamation of a public figure such as Palin.  Because the Times argued that Palin’s allegations were implausible within the context of the underlying events, the court found that an evidentiary hearing was necessary to allow Palin to examine the author of the op-ed to determine the plausibility of an inference of actual malice.

In an admittedly unusual proceeding, Judge Rakoff convened perhaps the first ever Iqbal hearing to determine the plausibility of Palin’s allegations, referring to the court’s authority to do so under Rule 43(c), which provides:  “When a motion relies on facts outside the record, the court may hear the matter on affidavits or may hear it wholly or partly on oral testimony or on depositions.”  The parties did not object, and after the hearing Palin obtained document discovery and the opportunity to call a second witness, which she refused.  After supplemental briefing, the Court granted the motion to dismiss with prejudice, concluding that any amendment would be futile.

Palin has now appealed the dismissal to the Second Circuit, which may choose to address the plausibility of this novel Iqbal hearing.