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Civil Procedure Fall 2014

Amended Complaint from Dioguardi v. Durning

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NOTES AND QUESTIONS

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1. Dioguardi's amended complaint read as follows:

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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JOHN DIOGUARDI, Plaintiff
-against-
HARRY M. DURNING Individually and as Collector of Customs at the Port of New York, Defendant

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Plaintiff, as and for his bill of amended complaint the defendant, respect­fully alleges:

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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.

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

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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.

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

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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.

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

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WHEREFORE: Plaintiff demands judgment against the defendant, individually and as Collector of Customs at the Port of New York, in the sum of Five Thousand Dollars ($5,000) together with interest from the respective dates of payment as set forth herein, together with the costs and disbursements of this action.

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2. The Dioguardi decision was sharply criticized in McCaskill, The Modem Philosophy of Pleading: A Dialogue Outside the Shades, 38 A.B.A.J. 123 (1952), and became a focal point of opposition to the notice pleading introduced by the Federal Rules. How would the Dioguardi case have been decided in a jurisdiction that requires a statement of "facts constituting a cause of action"?