In the case of Cambium Ltd. v. Trilantic Capital Partners, No. 363, 2011 (Del. Supr. Jan. 20, 2012), the Delaware Supreme Court followed its recent decision, Central Mortgage v. Morgan Stanley Mortgage Capital Holdings LLC, No. 595 (Del. Supr. Aug. 18, 2011) in holding that “conceivability” is the pleading standard for a complaint to surivive a motion to dismiss under Rule 12(b)(6).
Cambium, along with Central Mortgage, demonstrate that Delaware has not adopted the federal pleading standard to survive a motion to dismiss under Rule 12(b)(6), as adopted by the U.S. Supreme Court in the Twombly and Iqbal decisions. In the federal courts, the governing pleading standard to survive a motion to dismiss is “plausibility.”
In Cambium, the Delaware Supreme Court held that the pleading standard in Delaware is a “minimal one” and further clarified that conceivability “is more akin to possibility” while the federal standard of plausibility “falls somewhere beyond mere possibility but short of probability.” Therefore, the pleading standard to survive a motion to dismiss in Delaware is less stringent than that imposed by the federal courts.