Notice Pleading Notes

I’ve been trying to make sense of our legal system for 26 years. So, I was much surprised when I recently learned that “notice pleading” is America’s “dominant form of pleading”. Up until a couple of weeks ago, I’d never even heard the term “notice pleading,” and now I find out that it’s the “dominant form” of pleading. As is often the case, I’m a little humiliated to learn that after a quarter century of studying this legal system, I had no clue to our “dominant form” of pleading.

However, I don’t feel too embarrassed because I’ll bet that you, too, haven’t previously heard of “notice pleading”. In fact, I’ll bet that 99.9% of Americans have not previously heard of “notice pleading”. If I won that bet, it would be evidence that something important might be concealed in the concept of “notice pleading”. After all, how can the “dominant form” of courtroom pleading be “accidentally” unknown to virtually all of the American people unless “the powers that be” were trying to hide something?

In fact, Wikipedia (http://en.wikipedia.org/wiki/Notice_pleading) explains that during American history we’ve had three systems of “pleading”:

1. Common law pleading which originated in England and “developed a strong emphasis on the form of action rather than the cause of action” and recognized “law and equity” as “separate judicial systems” which each had their own forms and procedures.

2. Code pleading (first introduced in the 1850s) which sought to abolish the distinction between law and equity by a) unifying civil procedure for all types of actions; b) shifting the focus from form to cause of action (substantive right to be enforced by law); c) setting out all required elements for each cause of action in carefully codified statutes; d) pleading of all “ultimate facts” with evidence that would prove each “element”. Code pleading was allegedly criticized by “many lawyers” as “too difficult to research all facts needed to bring a complaint before one had even initiated the action” thereby preventing “meritorious plaintiffs” from bringing their complaints to court before the statute of limitations expired. (Note that Wikipedia, implies that the “merit” was to be found in the plaintiff rather than in his case.); and,

3. “Notice pleading is the dominant form in the United States today. In 1938, the Federal Rules of Civil Procedure were adopted. One goal was to relax the strict rules of code pleading. Code pleading had served four purposes: notice, issue narrowing, pleading facts with particularity and eliminating meritless claims. The Federal Rules eliminated all of those requirements except for the notice requirement (hence we call it notice pleading). The requirements that were eliminated were shifted to discovery (another goal of the FRCP). In notice pleading, plaintiffs are required to state in their initial complaint only a short and plain statement of their cause of action. The idea is that a plaintiff and their attorney who have a reasonable but not perfect case can file a complaint first, put the other side on notice of the lawsuit, and then strengthen their case by compelling the defendant to produce evidence during the discovery phase.” [Emphasis added.]

Wanting to learn more about the currently “dominant form” of pleading “in the United States,” I visited the Findlaw.com search engine for U.S. Supreme Court cases (http://www.findlaw.com/casecode/supreme.html) and entered “notice pleading” in the text search engine. The result was a list of every Supreme Court case included the term “notice pleading”. There were only seventeen cases. That’s interesting. Only seventeen Supreme Court cases expressly touch on America’s “dominant form” of pleading? That suggests that my ignorance (and perhaps yours) on the subject of “notice pleading” may be due less to my own oversight than to the possibility that the “powers that be” don’t want the great unwashed to understand the nature of “pleading” in our modern courts.

The Findlaw search engine will produce the “highlights” of each case that includes the term you’re looking for. Each highlight will include about 25 words before the search term appears in a case and about 25 words after it appears. This 50-word “context” can give us a pretty good idea as to whether we want read the whole case or not.

The seventeen cases, their “notice pleading” highlights and my observations follow in order of the earliest case (A.D. 1957) to the most recent (A.D. 2002):

17. FindLaw: CONLEY v. GIBSON, 355 U.S. 41 (1957)

http://laws.findlaw.com/us/355/41.html

… plaintiff’s claim is and the grounds upon which it rests. The illustrative forms appended to the Rules plainly demonstrate this. Such simplified “notice pleading” is made possible by the liberal opportunity for discovery and the other pretrial procedures [355 U.S. 41, 48]   established by the Rules to …

[First, note that the earliest case where the Supreme Court used the term “notice pleading” was A.D. 1957. That tells us that Notice Pleading is a relatively new invention—probably only since A.D. 1933 (or late) and an attribute of the New Deal and/or the National Democracy.

Second, I have not yet seen evidence that “notice pleading” also works in the “states,” but I’ll bet notice pleading does apply in the federal/territorial “states”—but not in the States of the Union. Likewise, I’ll bet that Notice Pleading applies in the national democracy, but not within the “republican form of government” guaranteed to every State of the Union.

This suggests that if you wanted to avoid being subject to Notice Pleading you might make it clear that you are not a “citizen of the United States” but rather a citizen or member of the people that comprise a State of the Union. Similarly, if you could enforce your standing as a man to claim your right to a “republican form of government” (rather than a democracy), you might be able to avoid being subject to Notice Pleading.

Third, the “liberal opportunity for discovery” is simply a right of inquiry. I.e., Notice Pleading works because notice Recipients have a “liberal opportunity for discovery”. It should follow that if you are denied your “liberal opportunity for discovery” (asking questions and having them answered) that you would not have sufficient notice, you could be “surprised,” and the gov-co’s authority to subject you to the process of “Notice Pleading” would be voided. If they won’t answer your questions, they can’t proceed under Notice Pleading . . . ? ]

16. FindLaw: ZENITH RADIO CORP. v. HAZELTINE RESEARCH, 401 U.S. 321 (1971)

http://laws.findlaw.com/us/401/321.html

… Hazeltine’s attorney responded in terms of his theory of surprise, whereupon the District Judge answered that federal procedure was based on notice pleading and in his opinion Hazeltine had been put on notice. App. 141-144. See also, e. g., App. 116, 121-123, 146, 155. [ Footnote 4 ] App. 169-223. …

[Thus, there is no “surprise” in Notice Pleading. Once you’re put on Notice, nothing else can be surprising. If you don’t respond to the Notice with questions, that’s your fault.]

15. FindLaw: OPPENHEIMER FUND, INC. v. SANDERS, 437 U.S. 340 (1978)

http://laws.findlaw.com/us/437/340.html

… that could bear on, any issue that is or may be in the case. See Hickman v. Taylor, 329 U.S. 495, 501 (1947). 12 Consistently with the notice-pleading system established by the Rules, discovery is not limited to issues raised by the pleadings, for discovery itself is designed to help define and …

14. FindLaw: YAZOO COUNTY INDUSTRIAL DEVELOPMENT CORPORATION v. SUTHOFF , 454 U.S. 1157 (1982)

http://laws.findlaw.com/us/454/1157.html

… be one among hundreds where busy federal appellate courts decide whether “conclusory [454 U.S. 1157 , 1159]   allegations” made under the “notice pleading” premise of the Federal Rules of Civil Procedure do or do not properly invoke federal jurisdiction. This Court in turn would be entirely correct in …

[There’s a case worth reading. There may be some question as to whether Notice Pleading is sufficient to invoke federal jurisdiction. I’ll bet that the court must’ve ruled that “notice pleading” DOES invoke federal jurisdiction, but it’s likely that the court specified one or more conditions precedent that must be present before “notice pleading” is able to invoke federal jurisdiction. If so, we need to know what those conditions precedent might be so they can be attacked or exploited relative to federal jurisdiction.

Note that jurisdiction can ALWAYS be challenged—even after a case has been decided. So, if Notice Pleading raises any unusual or “surprising” jurisdictional issues, we need to know what they are.]

13. FindLaw: BALDWIN COUNTY WELCOME CENTER v. BROWN, 466 U.S. 147 (1984)

http://laws.findlaw.com/us/466/147.html

… could have filed a motion for a more definite statement pursuant to Rule 12(e) if the complaint did not adequately serve the purposes of modern-day notice pleading. But of course petitioner would not have needed a more definite statement. The Federal Rules of Civil Procedure “do not require a claimant to set …

[The “complaint” is now a “notice” which need not be a “definite statement”. But there are “purposes” for “modern-day notice pleading”. These purposes should be discovered and used as grounds to defeat some purported “notices”.]

12. FindLaw: CELOTEX CORP. v. CATRETT, 477 U.S. 317 (1986)

http://laws.findlaw.com/us/477/317.html

… see Schwarzer, Summary Judgment Under the Federal Rules: Defining Genuine Issues of Material Fact, 99 F. R. D. 465, 467 (1984). Before the shift to “notice pleading” accomplished by the Federal Rules, motions to dismiss a complaint or to strike a defense were the principal tools by which factually insufficient …

[The previous excerpt implies that one of the great advantages of “Notice Pleading” is that the notice can be issued without much (perhaps any) factual support.

This reminds me that we have two kinds of pre-trial hearings: evidentiary hearings and argument hearings. I doubt that the two kinds of hearings are absolutely mutually-exclusive. I.e., you can probably enter some arguments at an evidentiary hearing, and you can probably enter some evidence at an argument hearing. However, it should at least be possible to hold an evidentiary hearing without any arguments, and especially, an argument hearing without any evidence.

I also know that according to the A.D. 2005 edition of O’Connor’s Texas Rules Civil Trials, that “evidentiary hearings” are now “disfavored”.

I therefore suspect that all Notice is essentially an ARGUMENT. The Notice is virtually never sworn; therefore the information conveyed by the notice itself is not an admissible “fact”. And if “factual insufficiency” is no longer easily claimed against Notice Pleading, that also suggests that all Notice Pleading is based on ARGUMENT--which is based on premises (beliefs; hearsay) rather than facts (testimony).

Implication: Attack the premises on which a Notice (argument) is based.]

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… be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources. But with the advent of “notice pleading,” the motion to dismiss seldom fulfills this function any more, and its place has been taken by the motion for summary judgment. Rule 56 must be …

[The Supremes suggest that the “motion for summary judgment” is the devise approved (and perhaps designed) for attacking a Notice/complaint.

If most Notices are nothing but arguments, then an effective Motion for Summary Judgment would largely rely on an attack on the PREMISES (not facts) on which the adversary’s ARGUMENT was based.]

11. FindLaw: RENNE v. GEARY, 501 U.S. 312 (1991)

http://laws.findlaw.com/us/501/312.html

… by JUSTICE WHITE that a party expressly style his claim in his complaint as a challenge based on overbreadth is also inconsistent with the liberal “notice pleading” philosophy that informs the Federal Rules of Civil Procedure. See Conley v. Gibson, 355 U.S. 41, 47 -48 (1957); see generally Fitzgerald v. …

[Ohh, isn’t that fun? What th’ heck is the meaning of “liberal "notice pleading" philosophy that informs the Federal Rules of Civil Procedure”. Notice pleading is a “philosophy” rather than law? This “philosophy” is “liberal” (meaning what?)?? and this philosophy “informs” the FRCPs? What th’ heck does that mean?

Apparently, the foundation for “notice pleading” may have been created by the Supreme Court rather than the Congress. Even if Congress created Notice Pleading, I’ll bet it was intended as process in the “territories” rather than the States of the Union.

In any case, when the court starts skating around the essence of Notice Pleading with confusing language like “liberal "notice pleading" philosophy that informs the Federal Rules of Civil Procedure,” you can bet that the Supremes are hiding something important. More, you can bet that the whole “philosophy” of Notice Pleading is probably very vulnerable to whatever is being hidden.]

10. FindLaw: LEATHERMAN v. TARRANT COUNTY NICU, 507 U.S. 163 (1993)

http://laws.findlaw.com/us/507/163.html … Independence, 445 U.S. 622, 650 . Second, it is not possible to square the heightened standard applied in this case with the liberal system of “notice pleading” set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only “a short and plain statement of the claim showing that the pleader …

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… We think that it is impossible to square the “heightened pleading standard” applied by the Fifth Circuit in this case with the liberal system of “notice pleading” set up by the Federal Rules. Rule 8(a)(2) requires that a complaint include only “a short and plain statement of the claim showing that the pleader …

[Previously, we’ve seen Notice Pleading described as a “liberal philosophy”; here, it’s described as a “liberal system”. The words “system” and “philosophy” may be synonymous as used by the court. But whatever Notice Pleading is, it’s 1) “liberal” and 2) “set up” (or created) by the FRCPs and whoever created and continues to amend those Rules.

More, under Notice Pleading there can be no “heightened pleading standard”—which would presumably require the “pleader” to plead all of the facts and law of his claim (argument) with “great specificity”. Under Notice Pleading, all that’s required is a “short, plain statement of the claim”. I.e., “Defendant owes me $1 trillion. In gold.”

Why would government want (or even allow “short plain claims” rather than “great specificity”? I’ll bet the reason may be that the existing gov-co is de facto rather than de jure. If gov-co had to plead its suits and even prosecutions with “great specificity,” it would probably be forced to admit that it’s acting in some very strange “capacity” or perhaps is not even the de jure government.

In any case, the “remedy” for the short, plain claim is DISCOVERY wherein the recipient of the original Notice (claim) is entitled to ask as many questions as he likes about the material facts and law supporting the claim. Gov-co is betting that 99.99% of all defendants will fail to ask the right questions required to reveal that the gov-co has insufficient facts or law to proceed. If the defendant doesn’t ask the right questions, too bad for him. If he does ask the right (most embarrassing) questions (and probably at the right time), the gov-co will probably drop the claim rather than answer those questions.

In any case, if it’s impossible” to “square” a “heightened pleading standard” with Notice Pleading, then it would follow that if you would avoid Notice Pleading (argument), you might want to find an undeniable basis for claiming the “heightened pleading standard”. If a defendant can prove that he’s entitled to the “heightened pleading standard” (perhaps at common law), the plaintiff or prosecutor may not be able to proceed under the “liberal notice pleading philosophy”.]

9. FindLaw Case

http://laws.findlaw.com/us/534/506.html

… a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims“).      In addition, under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does …

[Say whut? “Whether the claimant is entitled of offer evidence to support the claim”?!! Under Notice Pleading there is at least a question as to whether a claimant can merely argue his claim or is “entitled” to offer evidence in support of his claim. How is it possible that a claimant (plaintiff) might not be “entitled” to offer evidence in support of his own claim? I would’ve thought it impossible to prevent a claimant from offering evidence to support his own claim. I would’ve thought it impossible that the court ask “whether the claimant is entitled to offer evidence to support the claims”. I would’ve been wrong.

Under Notice Pleading it may sometimes be “impossible” to offer evidence. Under Notice Pleading, the entire case may be decided based on argument and its underlying premises.

I don’t know what the “McDonnell Douglas framework” is, but it’s probably some previous case that may lay foundation for elements of Notice Pleading. ]

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… notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U. S. 41, 47 (1957). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. …

[Conley v Gibson is the first Supreme Court case to use the term “notice pleading”.

The Notice must apparently present information of what the “claim is” and perhaps also the “grounds” for that claim. I suspect the “claim” is an argument. If so, the “grounds” are the premises (not facts) on which the argument is based.

Insofar as the Notice Pleading process relies on 1) liberal discovery; and 2) “summary judgment motions,” I’ll bet that that “summary judgment motions” are based in large part on the discovery (inquiry). If you receive notice and are thereby entitled to make inquiry but the claimant (notice sender; arguer) does not answer your questions, it’s likely that your proper response will be some sort of Motion for Summary Judgment.

Again, we see “liberal”. I’m pretty sure that means “general” in the sense that you can use discovery generally or liberally to ask for just about any information you like.

“Disputed issues” (as opposed to disputed “facts”) are probably arguments or at least premises that have been asserted by the claimant and denied by the defendant.]

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… requirements of Rule 8(a). 4      Other provisions of the Federal Rules of Civil Procedure are inextricably linked to Rule 8(a)’s simplified notice pleading standard. Rule 8(e)(1) states that “[n]o technical forms of pleading or motions are required,” and Rule 8(f) provides that “[a]ll pleadings shall be …

[It appears that FRCP 8(a) may be the cornerstone for the “simplified notice pleading standard”. If so, mastery of FRCP 8(a) will be essential to avoid or at least cope with notice pleading at the federal level.

If we find a rule in a state’s code of civil procedure that’s virtually identical to FRCP 8(a), then we can presume that Notice Pleading is also predominant at the state level.]

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… statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. See Conley, …

[OK—first, FRCP 8(a) is the “starting point” and thus foundation for the feds’ “liberal notice pleading”.

Second, insofar as “liberal” is not tightly bound by any rules, I’ll bet that “liberal” might be code for “private”. I.e., if “liberal” is not constrained by law, it’s merely constrained by some principles. The de facto is probably private rather than public. The Notice Pleading might be intended for “private law”.

The whole idea of Notice Pleading is to focus on the MERITS of a claim. That means that if you can master the concept of “merits,” you can master the “art” making or defending against Notice Pleading.

Blacks 2nd edition (A.D. 1933) defines the word “MERITS” as:

“In practice. Matter of substance in law, as distinguished from matter of mere form; a substantial ground of defense in law. A defendant is said "to swear to merits" or "to make affidavit of merits" when he makes affidavit that he has a good and sufficient or substantial defense to the action on the merits. 3 Chit.Gen.Pr. 543, 544. "Merits," in this application of it, has the technical sense of merits in law, and is not confined to a strictly moral and conscientious defense. Id. 545; 1 Burrill, Pr. 214; Rahn v. Gunnison, 12 Wis. 529.

“As used in the New York Code of Procedure, § 349, it has been held to mean “the strict legal rights of the parties, as contradistinguished from the mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court.” St. Johns. v. West, 4 How. Prac. (N.Y.) 332.

“A "defense upon the merits" is one which depends upon the inherent justice of the defendant's contention, as shown by the substantial facts of the case, as distinguished from one which rests upon technical objections or some collateral matter. Thus there may be a good defense growing out of an error in the plaintiff's pleadings, but there is not a defense upon the merits unless the real nature of the transaction and controversy shows the defendant to be in the right."

Over a century ago, one of the definitions of “merits” (the strict legal rights of the parties”) suggests that “merit” may be an attribute of each party rather than of the cause of action. Thus, the question of merit might go to each party’s status, standing or even authority in a case. If so, then you, personally, have sufficient “merit,” you are apparently “entitled” to bring a complaint or cause of action. Conversely, no matter how valid your cause of action might be, it appears that you might not be personally entitled to bring a complaint if you, personally, don’t have sufficient “merit”. You have “merit” if you have a RIGHT (entitlement) to bring a particular suit.

This suggests that if it’s true that the modern gov-co is de facto rather than de jure, that gov-co’s right (“personal” merit) to bring suit against a purported defendant may depend on some private relationship or recognition between the gov-co and the defendant. This private relationship might be an implied trust relationship, or it might be based on the defendant’s recognition of a gov-co employee (de facto officer doctrine?) as if he were an officer of the de jure government rather than an employee of the de facto gov-co.

Another definition (“

Black’s Law Dictionary, eighth edition (A.D. 2004), defines “merits” as:

"1. The elements or grounds of a claim or defense; the substantive considerations to be taken into account in deciding a case, as opposed to extraneous or technical points, especially of procedure <trial on the merits>. 2. EQUITY (3) <on questions of euthanasia, the Supreme Court has begun to concern itself with the merits as well as the law>.”

The first definition of “merits” applies to things "substantive". This is consistent with previous statements by the court which refer to a claimant's entitlement (or right) to enter evidence in support of his own claim.

Black’s 8^th does not define “substantive”. However, it does define “substantive law” as:

“The part of the law that creates, defines, and regulates the rights, duties, powers of parties. Cf. PROCEDURAL LAW.

"So far as the administration of justice is concerned with the application of remedies to violated rights, we may say that the substantive law defines the remedy and the right, while the law procedure defines the modes and conditions of the application of the one to the other." John Salmond, jurisprudence 476 (Glanville L. Williams ed., 10th ed. 1947).”

Blacks 4^th does define "substantive" as:

"An essential part of constituent or relating to what is essential. Stuart-Warner Corporation v. Le Vally, D.C.Ill., 15 F.Supp. 571, 576.

The second definition of “merits” refers to the third definition for "equity" which reads as follows:

"The recourse to principles of justice to correct or supplement the law as applied to particular circumstances <the judge decided the case by equity because the statute did not fully address the issue>.—Also termed natural equity.”

8. FindLaw Case

http://laws.findlaw.com/us/536/403.html

6. FindLaw Case

http://laws.findlaw.com/us/000/01-394.html

[Note that these two cases are identical but reported in each of two different “volumes”: 536 and “000”. The “000” volume is recent, spans about a decade or so, and appears to include cases heard by the Supreme Court of the United States rather than the United States Supreme Court. If so, such cases—though heard by the Supreme Court of the United States—are also reported in the U.S. reporter for cases decided by the United States Supreme Court. Though two cases are referenced, both have the same highlight:]

… against the CIA defendants alleged elsewhere in her complaint, App. 55 (counts 18-19). See infra, at 18. Whatever latitude is allowed by federal notice pleading, no one says Harbury should be allowed to construe “adequate legal redress” to mean causes of action that were not even mentioned in her complaint. …

[This case should be read to see if this argument prevailed or was rejected. I’ll bet that since notices need not completely allege all material facts, the court may ultimately allowed “adequate legal redress” to include causes of action that “were not even mentioned in the complaint”.

Also note that this case involved “CIA defendants”. That means this case should be very well done.]

7. FindLaw Case

http://laws.findlaw.com/us/540/375.html

… Haines v. Kerner , 404 U. S. 519, 520 (1972) (per curiam). “Liberal construction” of pro se pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal Rules of Civil Procedure, and thus is consistent with the general principle of American jurisprudence that “the party who brings a suit is master to decide what law he will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U. S. 22, 25 (1913). Our adversary system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief.

[Very nice. The plaintiff, claimant or prosecutor will essentially choose whatever law he wishes to be enforced against the defendant. This implies that the Notice that initiates the suit/prosecution must give information as to the EXACT LAW that the plaintiff/prosecutor relies on or at least allow the defendant a “right of inquiry” to DISCOVER what exact law(s) are being alleged by the plaintiff/prosecutor as the ground for his claim.

When we “discover” (inquire about) the plaintiff’s alleged “law,” this should not mean merely asking whether the case if filed under 42 USC 241 or 42 USC 242. The discovery should included whether the cause of action is based on public law or private; at law, in equity, maritime/admiralty etc..

More, insofar as the not only “facts” but also “arguments” may allegedly “entitle” the plaintiff/prosecutor to file his case, we should be able to expressly inquire as to whatever facts, law or arguments are believed to “entitle” the P/P to file suit against the defendant. Once they admit whatever will allegedly “entitle” them to sue/charge the defendant, the defendant may be able to attack and defeat the basis for that “entitlement”. If the defendant succeeds, the case should be dropped.]

5. FindLaw Case

http://laws.findlaw.com/us/000/04-563.html

… argument for the narrow reading urged by petitioner Mayle inheres in the distinctive pleading requirement for habeas petitions. Unlike the generous notice-pleading standard for the benefit of ordinary civil plaintiffs under Federal Rule of Civil Procedure 8(a), see Conley v. Gibson, 355 U. S. 41, 47 …

[This text tells us that an habeas corpus petition at least has “distinctive pleading requirements” that are greater (or different from) than the “liberal” (vague) Notice Pleading requirements. This raises the possibility that a defendant might be able to avoid Notice Pleading if he could interject a habeas corpus petition and force his adversary to respond. ]

4. FindLaw Case

http://laws.findlaw.com/us/000/05-1126.html

… out during a flexible pretrial process and, as appropriate, through the crucible of trial. See Swierkiewicz , 534 U. S., at 514 (“The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim”). Charles E. …

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… the rules contemplate’ ”); Thomson v. Washington , 362 F. 3d 969, 970 (CA7 2004) (Posner, J.) (“The federal rules replaced fact pleading with notice pleading“). II      It is in the context of this history that Conley v. Gibson , 355 U. S. 41 (1957), must be understood. The Conley plaintiffs …

[This is another indication that Notice Pleading is more about (perhaps exclusively about) introducing ARGUMENTS (beliefs; hearsay) into evidence rather than FACTS.

How do you introduce facts into evidence? By TESTIMONY. How do you introduce BELIEFS into evidence? By ARGUMENT. But given that the premises of arguments are merely BELIEFS and thus HEARSAY, those arguments cannot be VERIFIED (sworn to).

Gov-co tries to get around their inability to swear to FACTS by drafting affidavits “on information and belief” (hearsay). This may be the weak link in the Notice Pleading procedure. A defendant can SWEAR to (verify) the FACTS that might be introduced into evidence at an EVIDENTIARY hearing while the gov-co cannot swear to the premises being advanced in its arguments at ARGUMENT hearings.

This suggests that we may be able to defeat Notice Pleading by insisting on introducing EVIDENCE under OATH at EVIDENTIARY hearings. I.e., you probably can’t “beat” an argument at an Argument Hearing. To stop the plaintiff’s/prosecutor’s argument (beliefs), you must invoke an Evidentiary Hearing and then, under oath, introduce EVIDENCE (facts) that refute the premises (beliefs) on which the P/P’s arguments are based.

This may explain why “evidentiary hearings are [now] disfavored.”]

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… a prima facie case of discrimination under the McDonnell Douglas standard.      We reversed in another unanimous opinion, holding that “under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does …

[The 1st question is: Does the P/P proceed under a “notice pleading system”?

2^nd Q: Can I (defendant) be compelled to proceed under a “notice pleading system”?

3^rd Q: Does P/P presume that I have consented to proceed under a “notice pleading system”?

I.e., if we’re “under a notice pleading system,” the plaintiff need not plead (and then swear to) any FACTS to establish a “prima facie case”. On the other hand, if we’re not “under a notice pleading system,” the plaintiff must “plead” enough FACTS (that can be verified under oath) to establish a “prima facie case”. Whether those facts need be verified in the original complaint (or attached affidavit) in a process that is not “under notice pleading” is unclear to me. But clearly, if the plaintiff does not initiate suit under a notice pleading system, then the plaintiff must allege facts which, sooner or later, the PLAINTIFF can verify under oath.

Black’s 4^th defines “prima facie case” in part as,

“Such as will suffice until contradicted and overcome by other evidence. . . . A litigating party is said to have a prima facie case when the evidence in his favor is sufficiently strong for his opponent to be called to answer it. A prima facie case, then, is one which is established by sufficient evidence, and can be overthrown only by rebutting evidence adduced on the other side. In some cases the only question to be considered is whether there is a prima facie case or no. Thus a grand jury are bound to find a true bill of indictment, if the evidence before them creates a prima facie case against the accused; and for this purpose, therefore, it is not necessary for them to hear the evidence for the defense. Mozley & Whitley. And see State v Hardelein, 169 Mo. 579, 70 S.W. 130; State v Lawlor, 28 Minn. 216, 9 N.W. 698.”

Thus, a “prima facie case” is all about the evidence. Without sufficient evidence introduced into the record (probably under oath), there is no “prima facie case”.

But “under a notice pleading system,” the plaintiff need not plead sufficient (or any) facts (under oath) to provide a “prima facie case”. This may be another vulnerable link in Notice Pleading—it does not, perhaps cannot, produce a prima facie case. It does not, perhaps cannot, introduce evidence under oath.

This makes good sense. Suppose the IRS were preparing to sue you to collect back taxes. Who, in all the IRS, could swear under oath that you 1) are a taxpayer; 2) generated income; 3) owe five cents in income taxes; 4) represent a taxpayer; or 5) owe some fiduciary duty to file papers on behalf of some taxpayer? Simply put, there’s no one within the whole IRS who can swear, based on direct personal knowledge, that you are a taxpayer, owe money, or owe some duty of filing. Sure, the IRS may have a stack of records to indicate your liability, but those are just “business records” which are just hearsay and therefore cannot be introduced as evidence unless the data entry clerk that entered the data into those records had direct, personal knowledge of the alleged “facts”.

Virtually every gov-co bureaucracy operates under the same disability: There’s no gov-co employee who can verify (swear to) any of the “information” contained in their records, data bases, etc.. Information unsupported by oath is not admissible as FACTS in evidence. It’s just argument, belief, hearsay. That’s why gov-co devised notice pleading—to get around the fact that, usually, gov-co has little or admissible evidence sufficient to generate a “prima facie” case against the defendant.

I am increasingly convinced that a Notice is merely an Argument. As such, the Notice is (almost by definition) unsupported by FACTS to which anyone can swear. Instead, the notice is based largely or entirely on “information and belief” (at most) which is hearsay and inadmissible as evidence in a court of LAW.

Hmph. All of which suggests that the rise Notice Pleading and the rise of Administrative Procedure may be two manifestations of the same phenomenon: the growth of government into a modern tyranny.

No—that’s not just hyperbole. How much of gov-co’s growing power is based on criminal prosecutions or civil suits for victimless crimes or offenses. Without a victim, where are the facts and testimony to support any penal process? Growing government increasingly intrudes into our lives based on ARGUMENTS and the underlying premises/BELIEFS rather than FACTS. Hell, if the gov-co could only kick in doors or write traffic tickets based on sworn facts, I doubt that gov-co would be one-third of its current size.

The whole freakin’ gov-co is based on arguments, which are based on premises which are beliefs. It is conceivable that our current gov-co (this state) exists only as an “argument” but not as a fact.]

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… that Rule 8(a)(2) does not contemplate a court’s passing on the merits of a litigant’s claim at the pleading stage. Rather, the “simplified notice pleading standard” of the Federal Rules “relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of …

[If the court won’t rule on the plaintiff’s merits at the pleading stage, the courts will presumably rule on the “merits” if that issue is properly raised later in the proceedings.

So, if a defendant wants to stop a case quickly, it’s up to the litigants—by exercising their right of inquiry (discovery)—to determine if the plaintiff/prosecutor is “entitled” (has sufficient “merit”) to file the suit. In theory, if I ask the right questions in discovery, the gov-co would be forced to admit that it lacked sufficient “merit” (entitlement) to make charges against me. Once they make that admission, the case should be dropped.

In the real world, gov-co will never make that admission. The case might be dropped, but gov-co will not expressly admit it was not entitled to proceed.

Worse, in the real world, gov-co might sometimes proceed even though both sides know that gov-co has insufficient “merit” to do so. Then what do you do?

Countersue: perhaps for denial of “honest services of government”. And then hope that a jury will understand your position.

In any case, ]

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… conclusions of the pleader’ ”); Brownlee v. Conine , 957 F. 2d 353, 354 (CA7 1992) (“The Federal Rules of Civil Procedure establish a system of notice pleading rather than of fact pleading, … so the happenstance that a complaint is ‘conclusory,’ whatever exactly that overused lawyers’ cliché means, does …

[If the essence of Notice Pleading is argument, there may be no objection to “conclusions of law” advanced in an Notice.]

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… that loss and the [alleged] misrepresentation.” Id ., at 347. Here, the failure the majority identifies is not a failure of notice–which “notice pleading” rightly condemns–but rather a failure to satisfy the Court that the agreement alleged might plausibly have occurred. That being a question not of …

[If there is no Notice or the original Notice is somehow defective, the notice pleading procedure cannot proceed.

“Might plausibly” is synonymous with “arguably”.

Notice is all about argument. I’m all but convinced.]

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… it prevailed here before 1938, when the Federal Rules of Civil Procedure were adopted. The change could not be accomplished without abandoning notice pleading, increasing the number of judicial officers, and giving them more authority … . If we are to rule out judge-directed discovery, however, we must be …

[I wish I were triplets. One of us could read these excerpts; the other could chase down all the secondary rabbit trails; and the third one (me) could go fishing.

I wish I had the time and energy to chase down what “change” the court is talking about. It’s likely to be important, but so is a pile of other documents I have to read, write or file.

But what might “judge-directed discovery” be? It would be a discovery process where the obligation of directing the discovery (making inquiries) was placed on the judge. Such obligation would refute the fundamental principle of modern notice pleading: that upon receiving a notice, the right and duty of discovery is imposed on the notice recipient (rather than some judge). If the obligation of directing discovery were placed on the judge, it would be the judge’s obligation to ensure that discovery was professional, astute and complete. If the judge didn’t direct an almost perfect process of discovery, he’d probably forfeit jurisdiction and cause the defendant to be released or plaintiff’s case to be dismissed. By placing the obligation of discovery (inquiry) upon the notice recipient, the burden of “disproof” is placed on the recipient, and the judge need merely rule according to whether the defendant asked enough questions to disprove the plaintiff’s case.

Thus, under the “notice pleading system,” the defendant would seemingly be presumed “Guilty until proven innocent”. Does that description correspond to whatever courtroom realty you’ve experienced or observed? If so, that correspondence might only be coincidental. But it may also be evidence that notice pleading does in fact shift the burden of proof from the plaintiff to the defendant.

I am beginning to wonder about the etymological relationship of the words “inquiry” and “inquisition”. Both words implicate the posing of questions.

In the ancient “inquisition,” authorities imposed questions upon an accused and insisted by means of torture that those questions be fully and “truthfully” answered.

In modern notice pleading, the person sending the notice creates a right or duty of inquiry in the notice recipient. Thus, the notice recipient is entitled to ask questions. But who/what actually initiates the notice pleading process? We assume that gov-co sends the first notice (in the form of a letter from the IRS or a traffic ticket, for example) to us and thus creates our right/duty of inquiry.

I believe that’s true in most instances. However, it is conceivable that you and I may have unwittingly initiated the notice pleading process by sending a notice to the gov-co in the form of a Drivers License or W-4, W-9 or 1099. If we were deemed to have sent the first notice to gov-co, then gov-co would have a right of inquiry and be entitled to ask any number of questions (perhaps of the sort we see on the 1040).

In fact, it’s probably unnecessary to determine who sent the first notice. I’m not sure, but so far as I know, modern discovery rules allow both sides to engage in discovery, once the case is initiated. If so, then either side’s first “notice” would create a right of inquiry in both sides. IF so, then by sending a notice to me, the IRS might create its own right to ask me questions. True, the IRS would also create my right of inquiry concerning their notice, but given the ignorance of the typical American, in most cases that would be equivalent to leaving the remote control with the dog so it could watch whatever TV programs it wanted. Even though entitled to ask questions, 99% of all Americans will not do so effectively.

Thus, it is at least conceivable that notice pleading might initiate a kind of “inquisition” that was “modern” and perhaps “fair” since both sides were entitled to answer questions. IF so, the gov-co would unfortunately be more adept at asking those questions than the gov-co’s targets.

If you find all of this conjecture confusing, so do I. But in order to understand, we have to consider all possibilities—including those that seem “confusing”.

This much remains sure—at least to me: 1) a notice need not include all material facts; 2) notice creates a right or duty of inquiry in the notice recipient; and 3) notice pleading apparently shifts the burden of proof from the plaintiff to the defendant.

So far, it appears that if you would exempt yourself from notice pleading and your resulting “burden of disproof” you need to attack the first gov-co notice with great efficiency. Because that notice need not be complete, the notice probably can’t be attacked as intrinsically “defective”. Instead, the attack should probably be made by means of several very astute questions.

Note that if you receive a notice and respond with a notice of your own statements (rather than with questions) your response might be construed as your own notice that might create THEIR right of inquiry. Once gov-co establishes that it has a right of inquiry, if you don’t answer, you’re probably screwed. It’s a long-shot, but it appears to me that the proper response to a notice is not 1) silence; or 2) statements but only 3) questions.

Once you pose your questions, if they don’t answer they will be denying you your right to “sufficient notice”. Given that procedural due process consists of 1) notice and 2) opportunity to be heard—without sufficient notice, I doubt that the court can have jurisdiction to proceed to the “opportunity to be heard” (the hearing where you’ll be found guilty about 95% of the time).]

3. FindLaw Case

http://laws.findlaw.com/us/000/04-1203.html

…      The District Court adopted the Magistrate Judge’s recommendation that the allegations in the complaint were vague and constituted insufficient notice pleading as to Goodman’s §1983 claims. It therefore dismissed the §1983 claims against all defendants without providing Goodman an opportunity to amend his …

[This tells me that a fundamental complaint against all notices would be that they are “vague”. I might charge 20 other errors or defects, but I know the courts MIGHT respect a claim that my adversary’s notice was somehow “vague” and therefore insufficient.]

2. FindLaw Case

http://laws.findlaw.com/us/000/00-1853.html

… a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims“).      In addition, under a notice pleading system, it is not appropriate to require a plaintiff to plead facts establishing a prima facie case because the McDonnell Douglas framework does …

[Why is it “not appropriate” to require plaintiff’s to offer to plead facts (evidence) to establish a prima facie case? Because—as seen the Black’s 4^th and 4^th Revised editions—a notice, by definition, need not provide all relevant “material facts” but instead must only be sufficient to put an “honest and prudent” recipient “in inquiry”. I.e., since a notice must merely cause the recipient to ask questions, it should not be “required” to provide any facts whatsoever. Instead, a mere statement of argument might provide sufficient notice to put the recipient “in inquiry”.

Then, once that notice is received, it’s up to the recipient to ask sufficient questions to learn (or challenge?) the material facts and premises for the arguments underlying the notice to privately confirm or deny the notice’s validity.

If the notice recipient does not ask any or sufficient questions, he will be presumed (under “constructive” notice) to have received sufficient notice of all material facts underlying the notice. Given that he’s received constructive notice of all material facts but failed to introduce evidence to contradict those material facts, those unstated facts will be accepted by a court as true (probably without being introduced into evidence by means of testimony) and the defendant will almost certainly lose.

Once all the facts are implicitly agreed to, what’s left to debate other than the “law of the case”? But the law of the case would be declared or implied by the plaintiff in his original complaint/notice. If the defendant did not ask about or otherwise challenge the “law” that entitled the plaintiff to make his claim when that claim was first made, it would also be presumed that the defendant had agreed or consented to be bound by the plaintiff’s “law”.

All of this suggests that notice pleading would vastly favor plaintiffs. If defendants didn’t ask the right questions in response to notice, they’d be found guilty in the vast majority of instances. Clearly, in today’s court systems, defendants are routinely convicted of crimes and predominantly found guilty in civil suits. I wonder if there are statistics that show, over time, what percentage of cases were won or lost by plaintiffs? If it could be shown that plaintiffs were once relatively easy to defeat and have more recently tended to win disproportionately, we might have evidence that notice pleading is distinctly pro-plaintiff.

And therein may lie another fundamental vulnerability in notice pleading. I.e., if notice pleading could be shown to disproportionally favor plaintiffs, defendant’s might challenge the notice pleading process as depriving him of a right to a “fair” or “impartial” trial.

It seems possible to object to notice pleading as inherently “unfair” since it effectively relieves the plaintiff of the burden of proof and imposes a burden of “disproof” upon the notice recipient. For example, if gov-co sends you a notice (unsupported by facts or testimony) that you owe the IRS $20,000, it’s up to the notice recipient to prove that he doesn’t owe the $20,000 rather than up to the IRS to prove that he does.

We see actual evidence that notice pleading exempts the notice sender from the burden of proof in the IRS’s routine reliance on Notices of Tax Liens when those alleged tax liens do not in fact exist. County clerks file these Notices of Tax Liens as “evidence” into the county records even when such Tax Liens do not, in fact exist.

One of the curious facts concerning income tax “law” is the fact that the IRS seems to rely on the “Internal Revenue Code” rather than “Title 26” as authority to collect taxes. The IRC and Title 26 appear to be word-for-word identical. But are they the same authorities? For example, I could copy all of the text of Title 26 into a book I’d call “Adask’s Revenue Code”. Could I enforce the tax laws under “Adask’s Revenue Code” or must I enforce under Title 26? Similarly, can the IRS enforce under the IRC or must they enforce under Title 26?

Is it possible that the IRS uses notice pleading under the IRC that might not be permitted under Title 26?

Q: Is your notice dated January 1^st, 2009 issued under the authority of Title 26?

Q. Is your notice dated January 1^st, 2009 issued under the authority of the Internal Revenue Code?

Q. Are Title 26 and the IRC identical authorities?

We’ve found plenty of evidence (EINs, for example) that suggest that most governmental agencies are actually private, corporate entities that operate independently of the de jure government. Is it possible that “independent governmental agencies” rely on Notice Pleading that could not be tolerated as constitutional under the de jure government?]

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… notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley v. Gibson, 355 U. S. 41, 47 (1957). This simplified notice pleading standard relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims. …

[“Motions” are arguments.]

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… requirements of Rule 8(a). 4      Other provisions of the Federal Rules of Civil Procedure are inextricably linked to Rule 8(a)‘s simplified notice pleading standard. Rule 8(e)(1) states that “[n]o technical forms of pleading or motions are required,” and Rule 8(f) provides that “[a]ll pleadings shall be …

[Again, Rule 8(a) appears to be THE cornerstone for “simplified notice pleading”. This implies that if we would attack the notice pleading process, we should probably begin with a thorough analysis and understanding of Rule 8(a). You can almost bet that somewhere in Rule 8(a) (or the statute at its foundation) there will be an “exception,” an “exit” of sorts for those who do not consent to be subject to “notice pleading”.

In the Texas Rules of Civil Procedure, Rule 45(b) appears to correspond to the “notice pleading” implied by FRCP 8(a). Insofar as the Texas Rules announce notice pleading, you can bet that ever other “state” does much the same.

Notice pleading is predominant at both the “state” and federal level.

For now, I will say that FRCP 8(a) is all about “relief”. Relief implicates equity. Equity usually implicates a fiduciary relationship. If you can effectively deny the existence of an express or implied fiduciary relationship between yourself and the plaintiff, you might be able to estop the notice pleading process.

The Texas Rule 45(b) and supporting case law refer repeatedly to “fair notice” and “sufficient notice” as synonymous. This suggests that if you receive notice, pose proper questions in response, and the gov-co does not answer, the gov-co might be effectively accused of a fundamental “unfairness” that violates the fundamental principle of procedural due process.

I’ll analyze Rule 8(a) and Texas Rule 45(b) in the near future as time and energy become available.]

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… statement under Rule 12(e) before responding. Moreover, claims lacking merit may be dealt with through summary judgment under Rule 56. The liberal notice pleading of Rule 8(a) is the starting point of a simplified pleading system, which was adopted to focus litigation on the merits of a claim. See Conley, …

1. FindLaw Case

http://laws.findlaw.com/us/000/02-6683.html

… Haines v. Kerner , 404 U. S. 519, 520 (1972) (per curiam). “Liberal construction” of pro se pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal Rules of Civil Procedure, and thus is consistent with the general principle of American jurisprudence that “the …

At arm’s length and within The United States of America,

Alfred Adask

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