Dioguardi v. Durning

The Federal Rules introduced an alternative to code pleading, known as notice pleading. In notice pleading, the courts use the complaint less to assess whether the plaintiff has a high likelihood of succeeding in proving an entitlement to recovery and more to put the court and the defendant on notice of the nature of the allegations and the factual transaction that supposedly supports them.  Even under notice pleading, courts can and will (upon a defendant's motion) dismiss complaints that (i) are defective legally (such as a lawsuit against a person who is not a state employee under 42. U.S.C. § 1983) or (ii) allege fantastical factual sequences, such a defendant's causing the plaintiff to be internally decapitated or to time travel in a semi-conscious state.  Courts will dismiss complaints in either of those two categories under a code or a notice pleading regime.  But courts administering a notice pleading regime will dismiss fewer complaints because of insufficient factual specificity.  Instead, they will depend more on the summary judgment process, which occurs after discovery, to weed out litigation with an insufficient likelihood of success.

The following case illustrates the outer edges of tolerance for lack of specificity (perhaps even lack of coherence) under a notice pleading regime.

Here was the factual portion of plaintiff Dioguardi's complaint.  It may not surprise anyone that he did not have a lawyer.

FIRST: I want justice done on the basis of my medicinal extracts which have disappeared saying that they had leaked, which could never be true in the manner they were bottled.

SECOND: Mr. E.G. Collord Clerk in Charge, promised to give me my merchandise as soon as I paid for it. Then all of a sudden payments were stopped.

THIRD: Then, he didn’t want to sell me my merchandise at catalogue price with the 5% off, which was very important to me, after I had already paid $5,000 for them, beside a few other expenses.

FOURTH: Why was the medicinaly given to the Springdale Distilling Co. with my betting price of $110; and not their price of $120

FIFTH: It isn’t so easy to do away with two cases with 37 bottles of one quart. Being protected, they can take this chance.

SIXTH: No one can stop my rights upon my merchandise, because of both the duly and the entry.