Pleading Case Law in the Initial Complaint

[Coltfan1972]

I've gotten some differing opinions in reference to the initial complaint (federal). Nobody has said that's flat out wrong, but have gotten some feedback it's a little to detailed for the initial stage.

I'm arguing an agency not licensed in my state, yet collecting in my state, is an FDCPA violation.

I'm arguing it's a violation for deception, false and misleading, and the least sophisicated (actually really anybody) would assume if they got collection attempts from an agency, the agency would be properly licensed. Got a lot more but that is the bulk of it.

I'm cutting out a lot, just the highlights. I am adding this at the end of the alleged violation, after laying out all the facts, Furtherome, the 8th Circuit Court of Appeals has ruled and held that a violation of a state law will consitute a violation of the FDCPA if the state law violation is a violation which involves false, deceptive, or misleading representations. See, Carlon v First Revenue Assurance, 359 F3d. 1015 (2004). Defendant's violation of Arkansas State Law, involves false, deceptive, and misleading representations, therefore Defendant's violation of Arkansas State Law is also a violation of the FDCPA.

Opinions? I know it's a fine argument that needs to possibly be made. I'm just wondering if the way I have it stated in the initial complaint is improper. I've been told that is arguing too much of the case in the initial complaint stage.

Thanks

[BV80]

I've been told that is arguing too much of the case in the initial complaint stage.

That's the only reason I could see for not using case law in the Complaint. We've told defendants not to argue the case in their answer. We've told them to admit or deny and, if necessary, give an explanation, but don't argue the case.

If there's the slightest possibility a judge could be turned off by the inclusion of case law in the Complaint, I wouldn't use it.

Is there case law on the inclusion of case law in a Complaint?

[Coltfan1972]

Is there case law on the inclusion of case law in a Complaint?

No !! That I can find, in law or the rules, just what I've been told. I've tried to be careful to not really argue the law, but more or less plead an allegation, pleading the events that lead to the allegation, and then show that if you don't dispute the allegations, the courts have ruled there is a violation.

Since the court takes the complaint and assumes the facts are correct (for purposes of a motion to dismiss), I am not really arguing the facts, but using the assumption that I believe the court uses, and then show using that assumption there is a violation and case precedent backs that up.

I feel it is different that arguing the "facts." I'm stating the allegations as facts and not giving a lot of "what if" different scenerios. Then just stating, they did it, it's a violation, and here is some higher authority that says so.

But you know how "feeling" when dealing with the court can be. My feelings don't matter and I know that. So I'm trying to cover all my bases.

[legaleagle]

Title 3, para 8

Rule 8. General Rules of Pleading

(a) CLAIM FOR RELIEF. A pleading that states a claim for relief

must contain:

(1) a short and plain statement of the grounds for the court’s

jurisdiction, unless the court already has jurisdiction and the

claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the

pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief

in the alternative or different types of relief.

I se nothing about case law. I don't think it should be included.

Here is a case filed by the US govt, no case law.

http://www.ftc.gov/os/caselist/0723006/110316wamcmpt.pdf

Another one, by the US, no case law

http://www.ftc.gov/os/caselist/0823207/101021alliedinterstatecmpt.pdf

[BV80]

No !! That I can find, in law or the rules, just what I've been told. I've tried to be careful to not really argue the law, but more or less plead an allegation, pleading the events that lead to the allegation, and then show that if you don't dispute the allegations, the courts have ruled there is a violation.

Since the court takes the complaint and assumes the facts are correct (for purposes of a motion to dismiss), I am not really arguing the facts, but using the assumption that I believe the court uses, and then show using that assumption there is a violation and case precedent backs that up.

I feel it is different that arguing the "facts." I'm stating the allegations as facts and not giving a lot of "what if" different scenerios. Then just stating, they did it, it's a violation, and here is some higher authority that says so.

But you know how "feeling" when dealing with the court can be. My feelings don't matter and I know that. So I'm trying to cover all my bases.

I understand your point. But elaborating upon an allegation may not be considered a "short, plain statement".

[usagi555]

A very successful complaint that I have studied only used case law sparingly. When it did so, it was using case law where the current defendant had been a counter-defendant. It was basically "The defendant has pursued the wrong debtors in the past. (See case XXXXXX)"

[Coltfan1972]

I understand your point. But elaborating upon an allegation may not be considered a "short, plain statement".

Exactly, I've seen complaints that were a few pages all the way to dozens. I'm not sure what the definition of short, plain statement is.

If it would just say what is not allowed but this leaves it open. I think I'm going to leave the part in about a state violation being an FDCPA but take out the least sophisicated standard case references and just use the term least sophisicated. It's not like the court needs a lesson on the least sophisicated consumer standard.

I try to take every advantage of arguing my position every step of the way, even if not required. As long as it is not specifically stated as against the rules, I usually argue it. I know I put in a lot of arguments in my last case that I knew good and well were not going to be considered in the context I used them.

However, if I know a judge is going to be reading something, with no parties in court, I want to take that free shot at getting my case out there. I don't care if they "don't consider the argument" in that context, they are human. You can't just put something out of your mind. If that was the case there would never be mistrials.

When you are pro se, the presumption is you don't know what you're doing. Every chance there is to show the court you know your case, I feel should be taken. I just don't want to cross the line where the judge looks at the case as a burden. The other side will already feel that way, that's great, just not the court.

[legaleagle]

A short statement is common, it means that you put the other side on notice as to what you intend to prove. If you cite a violation of a specific law, you are required to cite the statute upon which you rely. That is all that is required. Case law comes later to reinforce certain points of law in further pleadings. See the two cases I gave you, these were filed by the US atty general I assume, NO case law.

[Coltfan1972]

Thanks for those cases, since you've read my complaint I know you already know, but I do think I will remove the case precedent. I made my arguments just like they were laid out in those cases, but I would just put See, then list an appeal court case. So those helped as I had pretty much the same outline except I added case law.

The only thing I think about is the FTC has pretty much a good amount of credibility. It's not exactly apples to apples with a pro-se filing a complaint. The presumption is not exactly the same. However, the rules are the rules and there is not one set for the FTC and one for a pro-se. Unfortuantley, as with everything in life, unwritten rules are sometimes used. Those are the ones I'm trying to make sure I play under also.

I don't want to give these clowns even the smallest opportunity to take something and run with it. I want them destroyed in dominating and humiliating fashion every step of the way.

[calawyer]

Generally, citiations to cases are not included in the complaint. Complaints set forth facts that constitute a legal violation.

[legaleagle]

This may be helpful, it's an FDIC opinion paper on the FDCPA

FDIC Law, Regulations, Related Acts - Consumer Protection