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In re Dismissal for Failure to State a Claim

FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED [5] "The general rule in appraising the sufficiency of a complaint for failure to state a claim is that a complaint should not be dismissed '***unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' CONLEY VS. GIBSON (1957), 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2LEd 2d 80; SEYMOUR VS. UNION NEWS COMPANY, 7 Cir., 1954, 217 F.2d 168; and see rule 54c, demand for judgment, FEDERAL RULES OF CIVIL PROCEDURE, 28 USCA: "***every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings." U.S. V. WHITE COUNTY BRIDGE COMMISSION (1960), 2 Fr Serv 2d 107, 275 F2d 529, 535 "A complaint may not be dismissed on motion if it states some sort of claim, baseless though it may eventually prove to be, and inartistically as the complaint may be drawn. Therefore, under our rules, the plaintiff's allegations that he is suing in 'criminal libel' should not be literally construed. [3] The complaint is hard to understand but this, with nothing more, should not bring about a dismisal of the complaint, particularly is this true where a defendant is not represented by counsel, and in view of rule 8{f} of the rules of civil procedure, 28 U.S.C., which requires that all pleadings shall be construed as to do substantial justice BURT VS. CITY OF NEW YORK, 2Cir., (1946) 156 F.2d 791. Accordingly, the complaint will not be dismissed for insufficiency. [4,5] Since the Federal Courts are courts of limited jurisdiction, a plaintiff must always show in his complaint the grounds upon which that jurisdiction depends." STEIN VS. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPER HANGERS OF AMERICA, DCCDJ (1950), 11 F.R.D. 153. "A complaint will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover." JOHN EDWARD CROCKARD VS. PUBLISHERS, SATURDAY EVENING POST MAGAZINE OF PHILADELPHIA, PA (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958) "FRCP 8f: CONSTRUCTION OF pleadings. All pleadings shall be so construed as to do substantial justice." DIOGUARDI VS. DURNING, 2 CIR., (1944) 139 F2d 774 "Counterclaims will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover." LYNN VS VALENTINE VS. LEVY, 23 Fr 46, 19 FDR, DSCDNY (1956) JUDICIARY ACT OF 1789, suit cannot be dismissed because of errors in service
FRCP 12(b)(6) Failure to State a Claim for which Relief can be Granted 21 Oct

For years, Ive watched pro se plaintiff after pro se plaintiff have their complaints dismissed by federal courts based on a defendants pre-trial, Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim for which relief can be granted. Although the federal courts repeatedly grant of 12(b)(6) Motions to Dismiss, the meaning of the phrase failure to state a claim for which relief can be granted has remained almost as obscure as that of a magical incantation (abra cadabra!). Everyone has heard the words but no one seems to understand what they really mean. Over the years, Ive speculated on several possible explanations for what failure to state a claim for which relief can be granted might truly mean. What follows are several case excerpts plus more of my bracketed speculation. This speculation is somewhat stream of consciousness but nevertheless expresses my theory de jure as to what that mysterious phrase might really mean. I cant say this current speculation is true, but its probably my best to date. The general rule in appraising the sufficiency of a complaint for failure to state a claim is that a complaint should not be dismissed ***unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. CONLEY VS. GIBSON (1957), 355 U.S. 41, 45, 46, 78 S.Ct. 99, 102, 2LEd 2d 80; SEYMOUR VS. UNION NEWS COMPANY, 7 Cir., 1954, 217 F.2d 168; and see rule 54c, demand for judgment, FEDERAL RULES OF CIVIL PROCEDURE, 28 USCA: ***every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings. U.S. V. WHITE COUNTY BRIDGE COMMISSION (1960), 2 Fr Serv 2d 107, 275 F2d 529, 535 [The plaintiff must expressly show his title to whatever relief is requested. I.e., the plaintiff must show that its possible for him to prove a set of facts in court (and probably to a jury) that proves he has title to the relief requested. The relief might be at law, but is probably equitable. If so, the plaintiff must show that he could possibly prove a set of facts that proved he had EQUITABLE TITLE to the relief (benefit) requested. This, in turn, implies that the plaintiff must allege 1) facts sufficient to prove the existence of a fiduciary relationship between himself and the defendants wherein he is the beneficiary and the defendants are fiduciaries; and 2) a breach by the defendants of their fiduciary obligations relative to the plaintiff. The problem for the plaintiff is alleging that government employees owed him a fiduciary obligation. Under the Constitution and de jure government, the government officer has a fiduciary obligation to each of the People. However, under the employer-employee doctrine, an employee has a fiduciary obligation to the employerbut not the customer. Thus, as gov-co employees (and only de facto officers), the government official would have no fiduciary obligation to the injured plaintiff and could not be charged with a breach of such non-existent fiduciary obligation. This implies that the proper defendant would be the employer rather than any of the employees. The employer would presumably have fiduciary obligations (or perhaps even an obligations at law) to the customer.

Of course, if the plaintiff tried to sue a government employer as defendant for breach, that employer would claim sovereign immunity. To prevail, the plaintiff would have to disprove that the governmental employer was truly a sovereign entity by proving the governmental employers was 1) an independent corporation with its own EIN; 2) an independent administrative agency that worked for government but was not part of government; 3) conducting its affairs in legal tender so it could not be a State of the Union; 4) acting within The State rather than in this state; . . . . Ideally the plaintiff would charge both 1) the governmental employer; and 2) the governmental employees (officials) in multiple causes of action structured as double-edged strategies wherein both sets of defendants can only avoid liability by implicating the other. I.e., sue the governmental employer for breach based on the allegation that the agency-employer had a fiduciary obligation to the customer (plaintiff). But even this might be a stretch if the government employer was an independent administrative agency that was hired (employed) by whatever passes for government. If the independent administrative agency is not part of government, but merely an employee, then the agency owes its fiduciary duty to its employerthe governmentrather than to the customer. Even so, a cause of action against the independent agency employer must be devised for the purpose of inviting that employer to claim sovereignty. Then, once the employer claims sovereign immunity, it employees would be deemed to be officers with fiduciary obligations to the People rather than employees with fiduciary obligations only to the employer. Also, the employees can be charged with breach of fiduciary obligations based on their OATHS OF OFFICE. But its important to recognize the chain of employment links that cause 1) the officials to have fiduciary obligations to their employer (rather than the customer-plaintiff), and 2) that employer (if an independent administrative agency) to have fiduciary obligations only to whatever governmental entity hired it (rather than to the customer-plaintiff). There might even be a third employment link if the entity that hired the independent administrative agency was itself an employee of The State or of this state. However, the money issue should be useful to prove that the varies employers cannot claim sovereign immunity. Insofar as any of the employees, officials and employers are transacting in legal tender, they cant be or represent a State of the Union and therefore cant claim sovereign immunityprovided that the plaintiff-customer show that all activities took place within The State. If the plaintiff admit he was voluntarily acting in this state, hes probably waived any complaint based on fiduciary obligations of the employees and/or employers. This is a complex and subtle process that might be implemented somewhat as follows: First, allege that you are a man.

Second, allege that all acts (and especially injuries) took place on the soil within the actual boundaries of The State. Third, charge the perpetrators (employees) as officers under the Constitution for breach of their fiduciary obligations to the People. If they claim sovereign immunity, defeat that claim with the money issue (or others) and demand a default judgment. Fourth, charge the perpetrators (employees) as employees who nevertheless have fiduciary obligations to the People based on their Oaths of Office. Fifth, charge the perpetrators (employees) with fraud for masquerading as if they were officers of The State and therefore only a pretense of authority when they knew or shouldve known that they had no authority (this depends on the plaintiff having challenged their authority from the beginning and precluding the de facto officer doctrine immunity. Sixth, charge the employer for breach of fiduciary obligations to the plaintiff under the Constitution. Seventh, charge the employer for breach of fiduciary obligations under the EMPLOYERS CHARTER! DEMAND THEY PRODUCE the corporate charter! If they have no corporate charter, they must be either 1) government or 2) fraudulent. If they are government, they have fiduciary obligations to the People. If they are fraudulent, they are subject to criminal prosecution, RICO, etc. Eighth, go after the attorneys allegedly representing the independent agency (employer) under a Rule 12 (?) challenge which (according to Fox) requires them to have the law with them when they appear at court. The law is the corporate charter. If they dont produce the corporate charter, then either the agency is not independent and does have fiduciary obligations under the Constitution, or the agency and/or attorney is engaged fraudulent misrepresentation. Etc. (Got to create a double-edged strategy with the objective of making them admit, heads, they have a fiduciary obligation as officers to the plaintiff or, tails, the employer has a fiduciary obligation to the plaintiff.) To beat the 12(b)(6) motion, plaintiff must show facts that would prove his title to the (equitable?) relief against the defendant fiduciaries. But there is one other point: If the 12(b)(6) is all about equitable relief, what happens if the plaintiff not only makes a claim under equity, but also alleges a legal or perfect title AT LAW? Maybe they can dismiss your equitable claim no matter what you say. But if you can create a claim AT COMMON LAW or perhaps IN ADMIRALTY, can 12(b)(6) even be considered? Thats a very good point. Create claims both in equity (in this state?) and AT LAW (within The State?)

The previous courts decision alleges that the plaintiff can proves no set of facts sufficient to entitle him. The phrase no set of facts implies that there may be several alternative sets of facts which might be alleged and possibly proved by the plaintiff. (This is where the double-edged strategy applies.) Plaintiff should allege several sets of facts (causes? Claims?) under which he might be entitled to relief. These sets of facts should be carefully devised so the defendants cannot deny one set without confessing another. ] A complaint may not be dismissed on motion if it states some sort of claim, baseless though it may eventually prove to be, and inartistically as the complaint may be drawn. Therefore, under our rules, the plaintiffs allegations that he is suing in criminal libel should not be literally construed. *3+ The complaint is hard to understand but this, with nothing more, should not bring about a dismissal of the complaint, particularly is this true where a defendant is not represented by counsel, and in view of rule 8{f} of the rules of civil procedure, 28 U.S.C., which requires that all pleadings shall be construed as to do substantial justice BURT VS. CITY OF NEW YORK, 2Cir., (1946) 156 F.2d 791. Accordingly, the complaint will not be dismissed for insufficiency. [4,5] Since the Federal Courts are courts of limited jurisdiction, a plaintiff must always show in his complaint the grounds upon which that jurisdiction depends. STEIN VS. BROTHERHOOD OF PAINTERS, DECORATORS, AND PAPER HANGERS OF AMERICA, DCCDJ (1950), 11 F.R.D. 153. *First, the court declares that no true complaint can be dismissed IF that complaint is supported by a valid CLAIM (to equitable or legal right?). This implies that we must learn all of the elements required to create a valid claim and proof of TITLE and ensure that each of those elements is present in each of the plaintiffs claims. Second, the plaintiffs petition and/or claim should be expressly written for the purpose of seeking SUBSTANTIAL JUSTICE (whatever that is) as compared to whatever alternative forms of justice might exist. I suspect that substantial justice may be AT LAW while the alternatives may be in equitybut this requires research. Third, plaintiffs complaint (not claim) must show grounds for the federal courts jurisdiction. This requirement (referenced in A.D. 1950) might or might not have been imposed relative to Article III courts. (Needs research) As a precaution, perhaps every CLAIM should also include proof of the federal courts JURISDICTION. If the jurisdiction is in the claim, then the jurisdiction is surely in the complaint . . . ??] A complaint will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover. JOHN EDWARD CROCKARD VS. PUBLISHERS, SATURDAY EVENING POST MAGAZINE OF PHILADELPHIA, PA (1956) Fr Serv 29, 19 F.R.D. 511, DCED Pa 19 (1958) *First, the reference to essential facts is ambiguous in that it might refer to facts essential to the claim or it might refer to facts essential to the complaint. Thats two different sets of facts. Close reading suggests that this reference to facts concerns those essential to the claim rather than the complaint.

Clearly, 12(b)(6) is all about the validity of the claim rather than the complaint. Therefore, if a lack of allegations of essential facts in a claim is insufficient to cause a 12(b)(6) dismissal a plaintiffs complaint, then the issue of facts essential to the validity of the claim is not central to 12(b)(6). That tells me that a claim sufficient to ensure a complaint will be heard must be based on the relevant LAW rather than the FACTS. A valid claim must include reference to the valid LAW which entitles the plaintiff to seek relief. Is that LAW the USC, common law, State or federal ORGANIC law, or private law under some private fiduciary relationship between plaintiff and defendant? The valid claim must be based on and expressly reference (and perhaps even prove) some LAW which can be proven by one or more sets of facts. This suggests that a valid claim should include certified copies of the relevant law under which the claim is made. More, I am beginning to suspect that the valid claim must be sent to the defendant BEFORE a lawsuit is filed. I.e., first you present a valid CLAIM to the defendants (probably by means of certified or registered mail for evidence). Yes, yes YES! Ill bet thats it! Ill bet we have to implement a standard (administrative?) debt collection processperhaps with three or more notices of claim sent to the defendants. Ill bet the mysterious claim that the plaintiff has failed to state under 12(b)(6) is some sort of collection process or demand letter(s) that must be sent before the lawsuit. The claim is probably not the text thats included within the complaint. The claim is probably a series of notices and/or demands sent to the defendants which inform the defendants of the law and factual basis of the claim. The claim is not the text, its the EXHIBITS of the several Notices and/or Demands that constitute collectively a valid claim. The pro ses just sue people without ever making a proper claim prior to the lawsuit. Ill bet thats why the pro se suits are routinely dismissed on 12(b)(6). Its not about the quality of the claim within the body of the complaint. Its about the totality of the claim process implemented before the suit is filed. First, the plaintiff must present his claims to the defendants. Then, after the total claim process has been implemented by the plaintiff and rejected by the defendants, THEN the plaintiff will have stated a claim for which relief can be granted. The deception is in the term a claim as in failure to state a claim for which relief can be granted. I read the indefinite adjective a to imply the existence of a single claim. Likewise, I read the word claim to be singular. I have presumed this singular claim must be the claim asserted in the text of the complaint. Maybe that presumption is false. Maybe a claim is not a singular claim, but rather the singular result of having properly taken all of the several steps required to make a complete administrative claims.

The whole 12(b)(6) process might simply be a variation on failure to exhaust your administrative remedies. Ill bet I dont have a valid claim to take to court until Ive first given the defendants several notices of claim that conform to the Debt Collection Process laws. I give them Notice of my claim and thereby create their opportunity for discovery (inquiry). They get to ask questions. If they do anything other than ASK QUESTIONS, they are presumed to have adequate Notice and then I can take them to the hearing. I cant take the defendants to court (the hearing) until Ive first stated (given notice of) the claim to the defendants. The 12(b)(6) motion for dismissal may be a function of the rules of procedural due processthe minimum due process afforded to all: 1) Notice; and 2) Opportunity to be heard (courtroom hearing). Ill bet that stating a claim is synonymous with giving them sufficient NOTICE. I cant take them to court until theyve had adequate Notice. Failure to state a claim means failure to give adequate Notice prior to the hearing. Im about 90% certain that a failure to state a claim is ultimately about failure to provide adequate notice (and opportunity to inquire) of a claim to the defendants PRIOR to taking them to court. If so, then 12(b)(6) failure to state a claim (at the federal level and some equivalent at your state level) would be the way to attack any INSUFFICIENT NOTICEincluding those sent by the gov-co. I.e., if gov-co sent me a notice and I responded with proper questions, and they refused to answer, Id have grounds to make a 12(b)(6) motion for failure to state a claim. Interesting. You start trying to understand 12(b)(6) motions and wind up understanding (maybe) how to attack gov-co Notices. Without sufficient Notice (of claim) we cant take them to court and they cant take us to court. If the essence of a valid claim is the LAW rather than the FACTS, then thats what must be inquired about in response to notice. This is consistent with court determinations that an adequate notice need not provide a full litany of FACTS. Instead, the sufficient notice must only give sufficient information to put the recipient on inquiry. I have presumed (until now) that the proper inquiry would be to discover all of the relevant or material FACTS. Im beginning to suspect that primary inquiry is not about FACTS, but about the LAW underlying the CLAIM. This conclusion may be mistaken but, for now and for me, it makes almost perfect sense. The first opportunity provided by the Notice is the recipients opportunity to inquire into and then deny the LAW on which the ENTITLEMENT to make the CLAIM is based. In essence the primary question in response to a Notice of Claim is Under what LAW do you make this claim? The second question would probably be, Under what authority do you deem me to be subject to said LAW? Third, Under what FACTS do you deem me to subject to said LAW? Fourth, In what PLACE (The State or this state) do you deem me subject to this LAW? Fifth, If the alleged LAW is private in nature, what facts exist to show that I consented to be bound by this law? Is this private law based on contract or trust? If so, where is my signature voluntarily agreeing to be bound by such private

law? If there is no signature, what are all the specific instances of my personal conduct which you believe gives rise to your TITLE under PRIVATE LAW to make claim against me? Is this claim against mea living man made in Gods image and endowed by his Creator with certain unalienable Rights and properly named Alfred Adask? Is this claim made against an entity named ALFRED ADASK which might be a fictional entity, person or capacity other than the living man named Alfred Adask? Are the names Alfred Adask and ALFRED ADASK synonymous? Do the names Alfred Adask and ALFRED ADASK both signify a man made in Gods image and endowed by his Creator with certain unalienable Rights? If your claim is based on PUBLIC law, do you represent the government The State of Texasa member-State of the perpetual Union styled The United States of America? If your claim is based on PUBLIC law, are you an officer under The Constitution of The State of TexasThe State of Texas being a member-State of the perpetual Union styled The United States of America? If your claim is based on title under PUBLIC law of The State, why isnt your claim denominated in lawful money (gold and silver coin as required by Article 1 Section 10 Clause 1 of The Constitution of the United States adopted on or about A.D. 1789? What is your authority to make a claim in terms of legal tender on the soil within the boundaries if The State of Texasa member-State of the perpetual Union styled The United States of America? Are you cognizant of the fact that the minimum due process available to all defendants is procedural due process? Are you cognizant of the fact that procedural due process consists of 1) Notice and 2) Opportunity to be heard? Are you cognizant of the fact that Notice creates a right and sometimes duty of inquiry for the Notice recipient and/or agent or fiduciary acting on behalf of the Notice recipient? Are you aware that the Notice recipients right to make inquiry entitles the Notice recipient to claim answers from the Notice author? Are you cognizant of the fact that no Notice is complete so long as reasonable and relevant inquiry by the Notice recipient remain unanswered? Are you cognizant of the fact that without sufficient Notice, plaintiff cannot lawfully proceed to a hearing? Are you cognizant of the fact that a refusal to fully answer questions posed by a Notice recipient is grounds to have a case dismissed for failure to state a claim for which relief can be granted? ADD AUTHORITIES. Etc., etc. "FRCP 8f: CONSTRUCTION OF pleadings. All pleadings shall be so construed as to do substantial justice." DIOGUARDI VS. DURNING, 2 CIR., (1944) 139 F2d 774 [Again, the concept of substantial justice is crucial. What exactly does it mean or imply?+ Counterclaims will not be dismissed for failure to state a claim, even though inartistically drawn and lacking in allegations of essential facts, it cannot be said that under no circumstances will the party be able to recover. LYNN VS VALENTINE VS. LEVY, 23 Fr 46, 19 FDR, DSCDNY (1956) *This implies that while an original plaintiffs suit can be dismissed for failure to state a claim, that option does not exist for a counter-claim. If the foregoing analysis and conclusions are roughly correct, then there is no requirement to provide NOTICE of Claim to the Plaintiff as prerequisite for the COUNTER-Claim. A valid lawsuit filed by a plaintiff creates opportunity for inquiry for both the

plaintiff and the defendant. Therefore, there is no reason for the defendant to create further right of inquiry by filing his NOTICE of Claim as 1) the first step in procedural due process; and 2) condition prerequisite for proceeding to the hearing.] JUDICIARY ACT OF 1789, suit cannot be dismissed because of errors in service

WAKE UP AMERICA! - CHAPTER THIRTEEN


COMMON LAW V. STATUTORY JURISDICTION Chapter Ten defined common law and indicated that common law is "the law of the land." In contrast, legislated or statutory law - like the laws of Congress - are written mostly by attorneys to further their own self-interest or to favor special-interest groups with big bucks. It is possible for an individual or company to operate according to the basic principles of freedom inherent in human nature. Most fundamentally, these are the rights to own property and to engage in voluntary exchange. These are also basic common law rights, and the two basic principles of Voluntary Capitalism. These principles are in accordance with the U.S. Constitution as intended by our Founding Fathers. The spirit of Voluntary Capitalism was expressed in the famous Supreme Court case cited in Chapter Two: "The individual may stand upon his constitutional rights as a citizen. He is entitled to carry on his private business in his own way. His power to contract is unlimited. He owes no such duty [to submit his books and papers for an examination] to the State, since he receives nothing therefrom, beyond the protection of his life and property. His rights are such as existed by the law of the land [Common Law] long antecedent to the organization of the State, and can only be taken from him by due process of law, and in accordance with the Constitution. Among his rights are a refusal to incriminate himself, and the immunity of himself and his property from arrest or seizure except under a warrant of the law. He owes nothing to the public so long as he does not trespass upon their rights." Hale v. Henkel, 201 U.S. 43 at 47 (1906). Article I, Section 10 of the Constitution states: "No State shall pass any law impairing the obligation of contracts." The individual's right to contract is unlimited and no State may interfere with that right. Very few Americans know that they have a fundamental choice: To live their lives and conduct their businesses under common-law jurisdiction or under statutory jurisdiction. Common Law is the law of the land, the law of the Constitution. Statutory law is legislated law. The IRS makes this distinction between the two kinds of law: "1. Common law comprises the body of principles and rules of action relating to government and security of persons and property which derive their authority solely from usages and customs or from judgments and decrees of courts recognizing, affirming, and enforcing such usages and customs. 2. Statutory law refers to laws enacted and established by a legislative body." IRS Manual, page 5041.1 Section 222.1.

Much of the original U.S. common law has been codified in a single Federal statute, the Uniform Commercial Code. "The Code is complementary to the Common Law, which remains in force, except where displaced by the code." UCC 1-103.6. The UCC provides the mechanism for making the choice between common law jurisdiction and statutory jurisdiction. It also states that the failure to make the choice results in the loss of common law rights. "When a waivable right or claim is involved, the failure to make a reservation thereof, causes a loss of the right, and bars its assertion at a later date." UCC 1-207.9. "The Sufficiency of the Reservation - Any expression indicating an intention to reserve rights, is sufficient, such as "without prejudice."" UCC 1-207.4. The specific method for reserving your common law rights - for choosing to operate under common law jurisdiction - is to write below your signature "Without Prejudice UCC 1-207." You could use this phrase on your driver's licence, on bank signature cards, and on contracts. FEDERAL JURISDICTION Article I, Section 8 of the Constitution states: "Congress shall have power to exercise exclusive legislation, in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of the government of the United States; and to exercise like authority over all places purchased by the consent of the Legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings." Very few Americans (including lawyers) know that federal legislative and territorial jurisdiction is very limited. It is limited to the ten square miles of Washington, DC, certain military bases where States have ceded jurisdiction, certain territories such as Puerto Rico and Guam, and certain guano islands. This information comes from a 29-page paper by Attorney Lowell H. Becraft, Jr. The Supreme Court has stated: "The laws of Congress in respect to those matters do not extend into the territorial limits of the states, but have force only in the District of Columbia, and other places that are within the exclusive jurisdiction of the national government." Caha v. U.S., 142 U.S., at 215 (1894). Becraft cites twenty court cases confirming the territorial limitation of federal jurisdiction, including:

U.S. v. Cotroni, 527 F.2d 708, 711 (2nd Cir., 1975) - holding federal wiretap laws as territorial.

Reyes v. Secretary of H.E.W., 476 F.2d 910, 915 (D.C. Cir., 1973) - holding administration of Social Security Act as territorial. Schoenbaum v. Firstbrook, 268 F. Supp. 385, 392 (S.D.N.Y., 1967) - holding securities act as territorial.

GENERAL CASE LAW ON JURISDICTION "Jurisdiction can be challenged at any time." Basso v. Utah Power & Light Co., 495 F 2nd 906 at 910. "It is axiomatic that the prosecution must always prove territorial jurisdiction over a crime in order to sustain a conviction therefor." U.S. v. Benson, 495 F.2d, at 481 (5th Cir., 1974). "The law provides that once State and Federal Jurisdiction has been challenged, it must be proven." Main v. Thiboutot, 100 S. Ct. 2502 (1980). "Where there is absence of proof of jurisdiction, all administrative and judicial proceedings are a nullity, and confer no right, offer no protection, and afford no justification, and may be rejected upon direct collateral attack." Thompson v Tolmie, 2 Pet. 157, 7 L. Ed. 381; and Griffith v. Frazier, 8 Cr. 9, 3 L. Ed. 471. "The United States is entirely a creature of the Federal Constitution, its power and authority has no other source and it can only act in accordance with all the limitations imposed by the Constitution." Reid v. Covert, 354 U.S. 1, 1 L. Ed. 2nd. 1148 (1957). "The rights and liberties of the citizens of the United States are not protected by custom and tradition alone, they are preserved from the encroachments of government by express/enumerated provisions of the Federal Constitution." Reid v. Covert, 354 U.S. 1, 1 L. Ed. 2nd. 1148 (1957). "The prohibitions of the Federal Constitution are designed to apply to all branches of the national government and cannot be nullified by the executive or by the executive and the senate combined." Reid v. Covert, 354 U.S. 1, 1 L. Ed. 2nd. 1148 (1957). "Where rights as secured by the Constitution are involved, there can be no rule making or legislation which will abrogate them." Miranda v. Ariz., 384 U.S. 436 at 491 (1966). "Congress may not, by any definition it may adopt, conclude the matter, since it cannot by legislation alter the Constitution." Eisner v. McComber, 252 U.S. 189 at 207. PRACTICAL APPLICATION Readers interested in finding out more about the practical application of these principles should contact Free America Institute for further information.
http://www.buildfreedom.com Copyright 1992 Free America Institute ALL RIGHTS RESERVED

We find it intolerable that one Constitutional Right should have to be surrendered in order to assert another." Simons vs. United States, 390 US 389

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=390&invol=377

Standing Cross-reference
Last Updated on Monday, 26 July 2010 15:51 Written by Marc Stevens Monday, 04 December 2006 10:16 Standing is the same wherever you go, the important elements are (1) the violation of a right; and (2) injury. The only "authority" one should need is to look at the Declaration of Independence for the only reason for the establishment of an American government:

"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed..." (Emphasis mine)

This of course is repeated in "state" constitutions such as Arizona: "governments ... are established to protect and maintain individual rights." Arizona constitution article II 2. This is why standing and jurisdiction must always involve a plaintiff's rights.

However, statists, especially attorneys, are not interested in the plain truth. That is why they claim everything I write is taken out of context. An example is standing. This incredibly simple issue is intentionally complicated by attorneys whose money is made arguing. Attorneys will claim because I provide quotes and citations from civil cases, that standing and jurisdiction only applies to civil cases, not criminal cases. One attorney in Arizona, Paula Burgess, acting as a judge, told me with a straight face article II 2 did not apply to criminal cases. In Ms. Burgess's opinion the criminal court system was either not created by the Arizona constitution or is not a part of the government. It's absurd to claim standing and jurisdiction requirements do not apply in criminal cases.

It's simple logic and common sense, juris doctorate not required: (1) the government was established/instituted for one purpose i.e., to secure/protect rights; (2) the courts being a part of the government have the same singular purpose i.e., to secure/protect rights; (3) the courts' jurisdiction has one purpose i.e., to secure/protect rights; (4) Standing to invoke a court's jurisdiction requires the allegation a right is being violated. Standing applies in criminal cases. What attorneys probably don't like is it doesn't require a one-hundred thousand dollar education to know and understand it; all it requires is to know what the purpose of government is supposed to be. Maybe one of the reasons attorneys don't like this is that it's a threat to their monopoly. Let's examine the heinous crime called the "unauthorized practice of law", attorneys LOVE this. Their passionate enforcement is evidence enough (try to assist a friend in court and watch the attorneys come alive). In California it is "punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1000), or by both..." California Business and Professions Code 6126(a). Government has one purpose "governments ... are established to protect and maintain individual rights." Arizona constitution article II 2. Whose rights am I accused of violating if I am accused of the "unauthorized practice of law" crime? If you have trouble identifying whose rights to life, liberty or property are violated, then don't despair because it violates no one's rights. It's the same if I am growing marijuana on my property, it violates no one's rights and injures no one. I wonder how many attorneys would be out of work if the "drug war" ended tomorrow? Looks like a motive to me. Remember, attorneys are part of the system, their allegiance is to that system because that system is where and how they get such high profits. Anything that would take away fom their profits will be attacked. Therefore, anything that would take business away from the courts will be opposed by this aggression-drunk cult. As designed by this cult, there will always be conflicting "precedents" and there are probably "opinions" out there that may appear to conflict, or actually conflict with, the cases I provide below. Do not let that discourage you, remember the cases I have cited are consistent with constitutions, enabling acts and the Declaration of Independence. When conflicting "opinions" are brought forth, then take that as evidence that attorneys will say anything. It's one more reason not to give any credibility to an attorney. This cross-reference is a work in progress, so please check back often for updates. I will have each "state" standing "authority" posted. And remember, I, Marc Stevens, am not an attorney, so everything is for entertainment purposes only and if anything here resembles the truth, then it must have been taken out of context. "Distinctions between crime and tort...

While the same act may constitute both a crime and a tort, the distinction between crimes and torts is based on the public nature of the criminal offense. The distinction with respect to the character of the rights affected and the nature of the wrong is this: A tort is merely a private wrong in that it is an infringement of the civil rights of individuals, considered merely as individuals, while a crime is a public wrong in that it affects public rights and is an injury to the whole community, considered as a community in it's social aggregate capacity. The distinction between a tort and a crime lies in the difference between the methods by which the remedy for the wrong is pursued; a wrong for which the remedy is pursued by, and at the discretion of, the individual injured or his representative is a tort, and a wrong for which the wrongdoer is proceeded against by the sovereign or state for the purpose of punishment is a crime." Corpus Juris Secundum, Vol 22, page 26 (2006 ed). Supporting citations from text: Ind-State ex rel Johnson v. White Circuit Court, 225 Ind 602, 77 N.E.2d 298...Mich.-People v. Veenstra, 337 Mich. 427, 60 N.W.2d 309...Pa.-Com. v. Malloy, 304 Pa.Super. 297, 450 A.2d 689...Ala.-Holland v. State, 440 So.2d 1236...N.J.- Tomlin v. Hildreth, 65 N.J. L. 438, 47 A. 649...N.C.-State Highway and Public Works Comm. v. Cobb, 215 N.C. 556, 2 SE2d 565...

Florida: "Causation consists of two distinct subelements. As legal scholars have recognized, before a defendant can be convicted of a crime that includes an element of causation, the State must prove beyond a reasonable doubt that the defendant's conduct was (1) the "cause in fact" and (2) the "legal cause" (often called "proximate cause") of the relevant harm...In order to establish that a defendant's conduct was the "cause in fact" of a particular harm, the State usually must demonstrate that "but for" the defendant's conduct, the harm would not have occurred." Eversly v. State, 748 So.2d 963, 966-967 (Fla. 1999). ""A Cause of action is some particular legal right of plaintiff against defendant, together with some definite violation thereof which occasions loss or damage." Luckie v. McCall Manufacturing Co., 152 So.2d 311, 314" Soowal v. Marden, 452 So.2d 625, 626. "It is a fundamental principle of law that no person be adjudged guilty of a crime until the state has shown that a crime has been committed. The state therefore must show that a harm has been suffered of the type contemplated by the charges (for example, a death in the case of a murder charge or a loss of property in the case of a theft charge), and that such harm was incurred due to the criminal agency of another. Thus, it is sufficient if the elements of the underlying crime are proven rather than those of the particular degree or variation of that crime which may be charged." State v. Allen, 335 So. 2d 823,825 (Fla. 1976). "A party has standing when he or she has a sufficient stake in a justiciable controversy. Sierra Club v. Morton, 405 U.S. 727, 731To establish standing it must be shown that the party suffered injury in fact (economic or otherwise) for which relief is likely to be addressed. See Warth v. Seldin , 422 U.S. 490,

501it may not be abstract, conjectural or hypothetical. Allen v. Wright, 468 U.S. 737, 791" Peregard v. Cosmides, 663 So.2d 665, 668. "A litigant must assert his or her own legal rights and interests, and cannot rest claim to relief on the legal rights or interests of third paries." Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936. "Generally, to have standing to bring an action the plaintiff must allege that he has suffered or will suffer a special injury." Alachua County v. Scharps, 855 So.2d 195. Statement of General Rules for Pleadings In making these allegations, the following rules as to the certainty required in pleadings should be kept in mind. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule I: Pleadings shouldn't be double. That is, no paragraph should allege more than one sufficient ground of the pleader's action or defense. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule II: The pleading must have a certainty of place. That is, it should show where the alleged facts occurred treating the cause of action or defense. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule III: Pleadings must have certainty of time. That is, where facts constituting a cause of action are alleged, the time when they occurred should be alleged. And the same rule should be observed in pleading facts as a defense. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule IV: The pleadings must specify quality, quantity, and value. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule V: The pleadings must specify the names of persons. That is, where a person is alleged to have done an act,his or her name should be given. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule VI: The pleading must show title, when title is depended on as an element of the cause. <!--[if !supportEmptyParas]--> <!--[endif]--> Rule VII: The pleading must show authority, where authority is depended on. <!--[if !supportEmptyParas]--> <!--[endif]-->

Rule VIII: Whatever is alleged in a pleading must be alleged with certainty. <!--[if !supportEmptyParas]--> <!--[endif]--> Qualifications and Exceptions to General Rules The rules set out above are qualified by the following rules in limitation of the certainty required: <!--[if !supportEmptyParas]--> <!--[endif]--> 1. Itisn't necessary in pleading to state that which is merely matter of evidence. 2. It isn't necessary to state matter of which the court takes notice ex officio. The court takes such notice of all public laws of the state where the action is pending, whether common or statute, but not of private law, unless the statute clearly so directs. When an action arises in another state, or the law of another state is relied upon, the foreign law must be pleaded and proved as a fact. It's also necessary,in some cases, to make mention of the law of the plaintiff' sown state for convenience or intelligibility of the statement of facts. As it's unnecessary to state matter of law in a pleading, it's equally improper, when any matter of law is alleged, to make it the subject of traverse (denial). 3. It isn't necessary to state matter that would come more properly from the other side. Thus, it's unnecessary to anticipate the answer of one's adversary. It's sufficient that each pleading should contain in itself a good prima facie case, though whatever is essential to a prima facie case must be stated. But there are certain pleas that are regarded unfavorably by the courts as tending to shut out the truth, and thesesuch as estoppel, that the other party is an alien enemymust be certain in every particular. They must meet and remove, by anticipation, every possible answer of the adversary. 4. It isn't necessary to allege what the law will presume. 5. It isn't necessary to allege circumstances necessarily implied. 6. A general mode of pleading is allowed where great prolixity is thereby avoided.The proper extent or application of this rule is largely a matter of the exercise of a practical judgment, only to be gained by study of the precedents. 7.Pleading in the form of general allegations is often sufficient where the allegations on the opposite side must reduce the matter to certainty. Thus,pleading performance in actions of debt on bond may be general. The same is true where the condition is for the performance of covenants or other matters contained in an indenture or other instrument collateral to the bond sued on and not set forth in it. This doesn't apply where the covenants or other matters mentioned in the collateral instrument are either in the negative or the disjunctive form, for here the allegation of performance should be more specially made so as to apply exactly to the tenor of the collateral instrument. In pleading performance of matters contained in a collateral instrument, it's necessary not only to crave oyer of the condition and set it forth, but also to make profert of the collateral instrument and set forth its whole substance. But

statutes in many jurisdictions greatly modify this rule.The plea of non damnificatus to an action of debt on an indemnity bond is an example of general pleading on behalf of the defendant. 8. No greater particularity is required than the nature of the thing that's pleaded will conveniently admit. 9.Less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading. 10.Less particularity is required in the statement of matter of inducement or aggravation than in the main allegations. 11.With respect to acts valid at common law but regulated as to the mode of performance by statute, it's sufficient to use in the declaration such certainty of allegation as was sufficient before the statute. But the plea should show the agreement or other instruction to be in writing if the statute makes writing necessary. Under the code, contracts that the statute requires to be in writing should always be pleaded as written instruments. Plea or AnswerCommon Law Rules Be able to take up these rules by number, commit them to memory, keep them all in mind, and not require their repetition for a full understanding of them. Rules governing the plea at common law, many of which must apply under any form or system of pleading, as follows: <!--[if !supportEmptyParas]--> <!--[endif]--> Rule I: "Dilatory pleas must be pleaded at a preliminary stage of the suit." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule II: "Pleas must be pleaded in due order." a) Jurisdiction b) suspension of action c) abatement of action <!--[if !supportEmptyParas]--> <!--[endif]--> Rule III: "Pleas in abatement must give the plaintiff a better writ or declaration." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule IV: "After the declaration, the parties must at each stage demur, or plead by way of traverse, or by way of confession and avoidance." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule V: "Upon a traverse, issue must be tendered."

<!--[if !supportEmptyParas]--> <!--[endif]--> Rule VI: "Issue when tendered must be accepted." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule VII: "There must be no departure in pleading." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule VIII: "Where a plea amounts to the general issue, it should be so pleaded." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule IX: "Surplusage is to be avoided." <!--[if !supportEmptyParas]--> <!--[endif]--> Rule X: "All affirmative pleadings that don't conclude to the contrary must conclude w/ verification." <!--[if !supportEmptyParas]--> <!--[endif]--> The defendant, having appeared and either waived his right to present dilatory pleas, demurrers, and motions, or after presenting them and obtaining rulings, is then ruled to answer. His next defense will be a plea to the merits of the action. Pleas to the merits are of two kinds: (1) pleas by way of traverse (denial) and (2) pleas in confession and avoidance or answers, or affidavits of defense

court jurisdiction: 26.012Jurisdiction of circuit court. (1)Circuit courts shall have jurisdiction of appeals from county courts except appeals of county court orders or judgments declaring invalid a state statute or a provision of the State Constitution and except orders or judgments of a county court which are certified by the county court to the district court of appeal to be of great public importance and which are accepted by the district court of appeal for review. Circuit courts shall have jurisdiction of appeals from final administrative orders of local government code enforcement boards. (2)They shall have exclusive original jurisdiction: (a)In all actions at law not cognizable by the county courts;

(b)Of proceedings relating to the settlement of the estates of decedents and minors, the granting of letters testamentary, guardianship, involuntary hospitalization, the determination of incompetency, and other jurisdiction usually pertaining to courts of probate; (c)In all cases in equity including all cases relating to juveniles except traffic offenses as provided in chapters 316 and 985; (d)Of all felonies and of all misdemeanors arising out of the same circumstances as a felony which is also charged; (e)In all cases involving legality of any tax assessment or toll or denial of refund, except as provided in s. 72.011; (f)In actions of ejectment; and (g)In all actions involving the title and boundaries of real property. (3)The circuit court may issue injunctions. (4)The chief judge of a circuit may authorize a county court judge to order emergency hospitalizations pursuant to part I of chapter 394 in the absence from the county of the circuit judge; and the county court judge shall have the power to issue all temporary orders and temporary injunctions necessary or proper to the complete exercise of such jurisdiction. (5)A circuit court is a trial court. History.s. 3, ch. 72-404; s. 1, ch. 74-209; s. 1, ch. 77-119; s. 1, ch. 80-399; s. 1, ch. 81-178; s. 22, ch. 81259; s. 12, ch. 82-37; s. 2, ch. 84-303; s. 5, ch. 91-112; s. 27, ch. 94-353; s. 52, ch. 95-280; s. 3, ch. 98-280; s. 1, ch. 2004-11.

20 am jurisprudence 2d:

III. CLASSIFICATION OF COURTS [8-15]


Research References ALR Digest: Courts 214, 214.5 ALR Index: Courts 8 Generally; courts of record View Entire Section Go to Parallel Reference Table Courts are classified according to various criteria; for example, in all jurisdictions, courts are classified as trial courts or appellate courts. 43 A court that maintains a permanent
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record of its acts and judicial proceedings is a court of record. 44 Conversely, a court that is neither required to nor does enroll for permanent memorial its acts and proceedings is not a court of record. 45 The fact that a particular court is a court of

record is significant in that a court of record is afforded a strong presumption as to the veracity of its records, 46 it is presumed to have had jurisdiction of the case adjudicated by it, and cannot have its records collaterally attacked 47 except in cases of fraud 48 or with regard to defects appearing on the face of the record. 49 Although a special court created by a legislature is presumed not to be a court of record unless the legislative act declares it to be such a court, 50 the statutory designation of a court as one of record is not necessarily determinative of whether it is actually a court of record for all legal purposes. 9 Constitutional courts View Entire Section Go to Parallel Reference Table A court whose existence is specifically provided for in the state constitution is classified as a constitutional court. 52 Generally, the legislature has no power to impair the essential nature or jurisdiction of a constitutional court. 53 However, although a court is a constitutional court, since it is a court of limited power conferred on it by the legislature, its powers may be changed by the legislature 54 and the legislature may even abolish such a court. 55 Definitions View Entire Section Go to Parallel Reference Table "Jurisdiction" has been variously defined as the power of a court to hear and determine a
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cause of action presented to it, 70 the power of a court to adjudicate the kind of case before it, 71 the power of a court to adjudicate a case when the proper parties are before it, 72 and the power of a court to make the particular decision it is asked to render. 73 In other words, "jurisdiction" refers to the power of the court over the subject matter, over the property or res in contest, and to the authority of the court to render the kind of judgment or decree it assumes to make. 74 "Jurisdiction of a particular case" means the right, authority, and power to hear and determine a specific case within that class of cases over which a court has subject matter jurisdiction. 75 Caution: A court can have subject matter jurisdiction over a class of cases and not have jurisdiction over a particular case due to the facts of that case. For example, a party's failure to follow procedural rules can affect the trial court's jurisdiction over a particular case, but not the court's subject matter jurisdiction. Browning v Walters (Ind App) 620 NE2d 28. 58 Constitution and legislation as sources of jurisdiction View Entire Section Go to Parallel Reference Table A court possesses only such jurisdictional powers as are directly, or indirectly, expressly or by implication, conferred on it by the constitution or legislation of the sovereignty on behalf of which it functions. 89 When the jurisdiction of a court is fixed by a constitutional provision, the legislature is powerless to abridge or enlarge the constitutional jurisdiction of the court. 90 Although state jurisdiction over certain cases rests on federal statutes conferring such

jurisdiction on state courts, 91 this does not mean that Congress can vest any part of the judicial power of the United States in state courts. 92 Since the legislature can only give such powers to courts as are not in derogation of a constitutional provision, 93 a statute purporting to affect the jurisdiction of a court will be construed, if it is reasonably possible to do so, so as not to be in conflict with a constitutional provision. 61 Duty to exercise jurisdiction View Entire Section Go to Parallel Reference Table Generally, a court with jurisdiction over a case has not only the right, but also the duty, to exercise that jurisdiction, 13 and to render a decision in a case before it. 14 State courts are not free to decline the jurisdiction conferred on them by Congress in cases based on federal statutes if such cases are within the scope of the ordinary jurisdiction of the state courts as prescribed by local laws. 15 A court's duty to exercise its jurisdiction can be enforced by way of a mandamus proceeding. 16 The general principle that a court which has jurisdiction over a case is bound to exercise that jurisdiction is not without qualification. 17 In certain situations, a court having
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jurisdiction over a case can in its discretion decline to exercise it, 18 as when the doctrine of forum non conveniens is applicable. 63 Objections to jurisdiction; waiver of, or estoppel to assert, objection View Entire Section Go to Parallel Reference Table Go to Supplement There can be no valid waiver of an objection that a court lacks jurisdiction over the subject matter, 25 and there can be no estoppel to object on this ground. 26 On the other hand, an objection that the court lacks personal jurisdiction over a party can be defeated by waiver or estoppel. 27 Thus, a party is generally foreclosed from objecting to jurisdiction of the person when he or she has failed to raise the objection at the proper
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time, 28 has made a general appearance, 29 in person or by attorney, 30 or has answered the complaint on its merits. 31 An objection to the jurisdiction of the court over a party comes too late when raised for the first time on a motion for new trial, 32 or when raised for the first time before the appellate court. 33 However, an objection based on the ground of absence of jurisdiction over the subject matter must be considered and can be raised at any time. 34 63 ----Objections to jurisdiction; waiver of, or estoppel to assert, objection [SUPPLEMENT] Case authorities: A defendant asserting lack of personal jurisdiction by special appearance has the burden of negating all bases of jurisdiction. National Indus. Sand Ass'n v Gibson (1995, Tex) 897 SW2d 769. 68 General and limited jurisdiction View Entire Section Go to Parallel Reference Table Frequently distinctions are made between courts of general jurisdiction 57 and courts of limited jurisdiction, 58 Whether a court is of general or limited jurisdiction depends on

the nature of the jurisdiction conferred, not on territorial limitations or on the amount in controversy range within which that jurisdiction is to be exercised. 59 A court of general jurisdiction has power to determine all controversies that can possibly be made the subject of civil actions. 60 By contrast, chancery courts are courts of limited jurisdiction. 61 The meaning of the word "limited" as applied to the jurisdiction of courts is relative, since the jurisdiction of a court possessed of "general" jurisdiction is not without limitations. 62 Nevertheless, the scope of jurisdiction of courts said to possess "general jurisdiction" is more extensive than is the scope of jurisdiction of courts said to possess only "limited jurisdiction." 63 For example, a court possessing only limited jurisdiction has no right to create an office not provided for by statute. 64 A court of general jurisdiction can act as a court of limited jurisdiction by exercising special powers conferred on it by statute. When a court of general jurisdiction exercises
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such special powers, its decisions are treated as decisions of courts of limited jurisdiction. 65 There is a division of authority as to whether a judgment rendered by a court of general jurisdiction pursuant to special statutory authority is entitled to the customary presumptions regarding the presence of jurisdiction.