Anatomy of an Action in Law

Starting with the complaint.

The complaint will have your jurisdictional statement (why the court can take
jurisdiction of the matter) the story leading up to the causes of action, the causes of
action, the points and authorities of the cause of action and why the court should
rule in your favor.

Oxford Companion to American Law:

(Gene R. Shreve and Peter Raven-Hansen, Understanding Civil Procedure, 2d ed., 1994.)

A criminal complaint charges the person named or an unknown person with a

particular offense. For example, after the bombing of a federal building in Oklahoma
City in 1995, authorities issued a John Doe complaint, charging an unknown person or
persons with the crime.

A criminal complaint must state the facts that constitute the offense and must be
supported by probable cause. It may be initiated by the victim, a police officer, the
district attorney, or another interested party. After the complaint is filed, it is presented to
a magistrate, who reviews it to determine whether sufficient cause exists to issue an arrest
warrant. If the magistrate determines that the complaint does not state sufficient probable
cause, the complaint is rejected and a warrant is not issued. In federal court, the
complaint is presented under oath (Fed. R. Crim. P. 3).

A civil complaint initiates a civil lawsuit by setting forth for the court a claim for
relief from damages caused, or wrongful conduct engaged in, by the defendant. The
complaint outlines all of the plaintiff's theories of relief, or causes of action (e.g.,
negligence, battery, assault), and the facts supporting each cause of action. The
complaint also serves as notice to the defendant that legal action is underway. The
Federal Rules of Civil Procedure govern construction of complaints filed in federal
courts. Many state courts follow the same rules as the federal courts, or similar rules.

To win at trial in an action for damages, the plaintiff must establish by a

preponderance of the evidence that the defendant failed to act as he had a legal duty
to act toward the plaintiff and that the plaintiff suffered compensable harm as a
result. Damage actions are usually compensatory in character—that is, they attach
monetary value to the difference between what the plaintiff’s situation is and what it
would have been if the defendant had performed a legal duty owed to the plaintiff. Courts
may on occasion also award either nominal damages, which are symbolic and do not
require proof of particular harm, or punitive damages, which are penal and may
greatly exceed the assessed amount of actual harm. While English courts usually
require the losing party to pay the victor’s attorney fees, the United States has a strong
tradition against this practice. Subject to a few exceptions, created by statute, each side
pays its own litigation costs.

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 Procedural law is distinguished from substantive law, which creates, defines, and
regulates the rights and duties of individuals. Federal and state constitutions, statutes,
and judicial decisions form the basis for substantive civil law on matters such as
contracts, torts, and probate. Procedural law prescribes the methods by which
individuals may enforce substantive laws. The basic concern of procedural law is the
fair, orderly, efficient, and predictable application of substantive laws. Procedural
guidance can be found in court-approved rules, in statutes, and in judicial decisions.

Subject matter jurisdiction concerns the competence or power of a court to hear a

particular kind of case. It is rarely a concern in state litigation, because a state’s law
gives its courts power to hear any sort of civil case. Subject matter jurisdiction is, in
contrast, a major concern of the federal courts, which are courts of limited jurisdiction.
Their power to hear a particular case must be (1) authorized under the language of Article
III of the Constitution and (2) authorized by a state. Most issues of federal subject matter
jurisdiction involve questions of statutory interpretation.

“Clearly mere legal conclusions inserted in a complaint are insufficient to state a cause
of action unless substantiated by allegations of ultimate fact. A complaint must
sufficiently allege ultimate facts which, if established by competent evidence, would
support a decree granting the relief sought.” E.g., Doyle v. Flex, 210 So. 2d 493, 494-95
(Fla. 4th DCA 1968).

The Complaint must also contain sufficient allegations of causation, showing a legal
relationship between the alleged negligence and unworthiness of some injury. As pointed out by
the Court in Romans v. Warm Mineral Springs, Inc., 155 So 2d 183, 184 (Fla 2d DCA 1963), in
upholding the dismissal of a Plaintiff’s Complaint.
The complaint must show a legal liability by stating the elements of a cause of action must
plead factual matter sufficient to apprize the adversary of what he is called upon to answer so that
the court may determine the legal effect of the claim.

The complaint must set out the elements and the facts that support them so that the court
and the defendant can clearly determine what is being alleged. The complaint must set forth
factual assertions that can be supported by evidence which gives rise to legal liability. It is
insufficient to plead opinions, theories, legal conclusions or argument. Furthermore, the
assertions are to be stated simply and succinctly. Barrett v. City of Margate, 743 So 2d 1160 (Fla
4th DCA 1999). pleading conclusions of law unsupported by allegations of ultimate fact is legally
insufficient); Bliss v. Carmona, 418 So 2d 1017, 1019 (Fla 3d DCA 1982). There must be
specific factual allegation for each essential element required by substantive law for particular
cause of action. Barrett v. City of Margate, 743 So 2d 1160, 1162 (Fla 4th DCA 1999)
(complaint must set out elements and facts that support them so that court and defendant can
clearly determine what is being alleged). if the evidence fails to make out a prima facie case as
to any material element of the offense.

Each cause of action must contain a statement of the ultimate facts showing the pleader is
entitled to relief. “Ultimate” facts are those facts that, taken together, provide all the elements of
a cause of action. [Fla R Civ P 1.110(b)(2).] They are not statements of detailed evidence as to
facts that must be proved at trial. The statements of ultimate fact must be “short” and “plain.” [Fla
R Civ P 1.110(b)(2).

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CAUSE OF ACTION
The cause of action is the heart of the complaint, which is the P L E AD I N G that
initiates a lawsuit. Without an adequately stated cause of action the plaintiff’s case can be
dismissed at the outset. It is not sufficient merely to state that certain events occurred that
entitle the plaintiff to relief. All the elements of each cause of action must be detailed in
the complaint. The claims must be supported by the facts, the law, and a conclusion that
flows from the application of the law to those facts.

Florida Rule of Civil Procedure 1.140(b) requires the defendant to assert in the answer every
defense in law or fact to a claim for relief, except for seven defenses that may be raised by motion
before filing an answer. Bard v. Wolson, 687 So 2d 254, 255 (Fla 1st DCA 1996). These seven
defenses are (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the
person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process,
(6) failure to state a cause of action, and (7) failure to join indispensable parties. If such a defense
is raised in a preliminary motion and ruled on by the court, the defendant is precluded from later
raising that same defense in a responsive pleading. Miller v. Marriner, 403 So 2d 472, 474 (Fla
5th DCA 1981).

The defendant prematurely moved for judgment on the pleadings. Even though the trial court’s
ruling favored the defendant, it was procedurally defective because the motion was premature as
the pleadings were not yet closed and the defendant’s motion to dismiss had not been heard. The
defendant only needed to file his answer to properly close the pleadings. Farag v. National
Databank Subscriptions, Inc., 448 So 2d 1098, 1100 (Fla 4th DCA 1984).

The next thing is to attach your exhibits with your certification that the
attachments (exhibits) are true and correct copies of the original. Take the originals
to court with you in case you need to make an offer of proof. At the end put your
declaration that the complaint is true and correct and then date and sign. Make 2
copies, and file it into the civil division of the court. Have the clerk set the date for
hearing, then have a process server serve the complaint personally to the
defendants, then have the process server sign the proof of service and file into the
court with the court case number on it.

I. Check with your nearest library, such as a local public library or county law library, for
the availability and location of a legal information collection in your area.

II. Know your facts

A. What is the subject?
B. What has happened: who, what, when, where, why and how.

III. Classify the problem

A. Is it under state or federal jurisdiction?
B. Is it a civil or criminal case?

IV. Be familiar with the organization of the judicial system.

A. Federal: Supreme Court, Court of Appeals, or District or Bankruptcy Courts

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 B. State: Supreme Court, Court of Appeals, or trial level courts, (e.g. County, Circuit,
Superior or District Courts).
C. Administrative tribunals.

V. Select the appropriate background search.

A. Legal dictionaries are helpful in defining terminology used in similar cases
B. Legal encyclopedias give an overview of the subject. Such as American
Jurisprudence (Am Jur 2d).

VI. Use indexes to find an exact page or to find information on a particular subject

VII. Use primary sources

A. State and/or Federal Constitution
B. Statutes or acts passed by U.S. Congress or state legislatures
C. Rulings, decisions or opinions of courts (Case Citations/case law).
D. Regulations of state and federal agencies (Federal code of regulation (CFR’s),
State Administrative codes, City/ County charters).
VIII. Use secondary sources
A. Treatises
B. Law Reviews
C. Looseleaf services

IX. Check for the most current information

A. Newest edition
B. Most recent supplement
C. Pocket parts

X. Use citators to find a table of subsequent cases citing to the original case for further
history and treatment in the courts by the Office of the Administrator for the Courts for
the Washington State Judiciary

Reporters and Case Citations (case law)

The first named plaintiff or petitioner and the first named defendant or respondent are
listed as the case name. Surnames only are used for individuals.

The volume for a reporter is given first, then the abbreviation of the title. The page
number of the volume on which the case first appears is next. This is followed, in
parentheses, by the year or date the case was decided. Sometimes additional information,
such as an abbreviation for the court issuing the opinion or a brief history of subsequent
review, may be included.

Parallel cites are often included in a citation. These refer to the same case as reported in a
different reporter. The Pacific Reporter is a parallel cite to cases for the Washington
Reports and Washington Appellate Reports.

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EXAMPLE A: Bedford v. Sugarman, 112 Wn.2d 500, 772 P.2d 486 (1989)
The name of the case is "Bedford v. Sugarman" and appears in volume 112 of
Washington Reports, 2d series, beginning on page 500. It was also reported in volume
772 of Pacific Reporter, 2d series, beginning on page 486. The case was decided in 1989.

EXAMPLE B: Jordan v. Gardner, 953 F.2d 1137 (9th Cir. 1992), reh'g
granted 968 F.2d 984 (1992)
The name of the case is "Jordan v. Gardner" and appears in volume 953 of the Federal
Reporter, 2d series, beginning on page 1137. There is no parallel citation. The case was
decided in the United States Court of Appeals for the Ninth Circuit in 1992. An order
granting a rehearing before an en banc panel of the court was reported in volume 968 of
the Federal Reporter, 2d series, beginning on page 984. The rehearing was granted in
1992.

Codes
Generally the chapter or title number is listed first, then the subchapters, sections or parts.

EXAMPLE C: 5 U.S.C. 551(a)

Refers to title 5 of the United States Code, section 551, subsection (a).

EXAMPLE D: RCW 27.20.030

Refers to title 27, chapter 20, section 030 of the Revised Code of Washington.

EXAMPLE E: F.S. 895.03(1)(2).

Refers to Florida States (F.S.), chapter 895, section 03, subsections 1 and 2.

Stating the Elements /Standing

Standing requires that the plaintiff have a sufficient interest at stake in the controversy
that will be affected by the litigation’s outcome. See Provence v. Palm Beach Taverns,
Inc., 676 So. 2d 1022, 1024 (Fla. 4th DCA 1996); it must be asserted as an affirmative
defense or the defense is waived. See Cowart v. City of West Palm Beach, 255 So. 2d
673, 674-675 (Fla. 1971); see also Fla. R. Civ. P. 1.210 (parties).

1. Jurisdiction: “A pleading which sets forth a claim for relief must contain
allegations of fact sufficient to show the jurisdiction of the court.” E.g., Gannett v. King,
108 So. 2d 299, 301 (Fla. 2d DCA 1959).

2. Fact Pleading: “Florida is a fact-pleading jurisdiction. Continental Baking Co. v.

Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994); see also Goldschmidt v. Holman,
571 So .2d 422, 423 (Fla.1990) (“Florida Rule of Civil Procedure 1.110(b)(2) requires
that ‘[a] pleading which sets forth a claim for relief ... must state a cause of action and
shall contain ... a short and plain statement of the ultimate facts showing that the pleader

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is entitled to relief’ ”). Florida’s pleading rule forces counsel to *173 recognize the
elements of their cause of action and determine whether they have or can develop the
facts necessary to support it, which avoids a great deal of wasted expense to the litigants
and unnecessary judicial effort. Continental Baking Co., 634 So. 2d at 244. Furthermore,
at the outset of a suit, litigants must state their pleadings with sufficient particularity for a
defense to be prepared. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v.
Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988).” E.g., Horowitz v. Lasky, 855
So. 2d 169, 172 (Fla. 5th DCA 2003).

3. Pleading Ultimate Facts: “In addition to the jurisdictional statement and the
relief sought, the complaint must contain a plain statement of ultimate facts establishing
entitlement to relief.” E.g., Pratus v. City of Naples, 807 So. 2d 795, 796 (Fla. 2d DCA
2002).

4. Inconsistent Pleading: “The Florida Rules of Civil Procedure permit

inconsistency in pleadings as to either statements of facts or legal theories adopted.” E.g.,
Booker v. Sarasota, Inc., 707 So. 2d 886, 888 (Fla. 1st DCA 1998) (citation omitted).

5. Allegations of Time and Place: “In essence, allegations of time and place are
necessary only if without them the statement of the claim is so vague and ambiguous that
the other party cannot adequately frame an answer.” E.g., Sarasota Cloth Fabric &
Foam, Inc. v. Benes, 482 So. 2d 574, 576 (Fla. 5th DCA 1986).

6. Legal Conclusions Insufficient: “Clearly mere legal conclusions inserted in a

complaint are insufficient to state a cause of action unless substantiated by allegations of
ultimate fact. A complaint must sufficiently allege ultimate facts which, if established by
competent evidence, would support a decree granting the relief sought.” E.g., Doyle v.
Flex, 210 So. 2d 493, 494-95 (Fla. 4th DCA 1968).

9. Pleading for Punitive Damages: A plaintiff cannot plead for punitive damages
without leave of court. See 768.72, Fla. Stat. Section 768.72(1), Fla. Stat., details the
threshold Plaintiffs must meet to obtain leave to amend to add a claim for punitive
damages as follows:

In any civil action, no claim for punitive damages shall be permitted unless there
is a reasonable showing by evidence in the record or proffered by the claimant which
would provide a reasonable basis for recovery of such damages.
To properly assert a punitive damages claim, a plaintiff need only make “a
reasonable showing by evidence in the record or proffered by the claimant.” Strasser
v. Yalamanchi, 677 So. 2d 22, 23 (Fla. 4th DCA 1996); Solis v. Calvo, 689 So. 2d 366,
369, n. 2 (Fla. 3rd DCA 1997). “If there is any evidence tending to show that punitive
damages could be properly inflicted, even if the Court be of the opinion that the
preponderance of evidence is the other way, the Court should leave the question to the
jury.” Jonat Properties, Inc. v. Gateman, 226 So. 2d 703 (Fla. 3rd DCA 1969) (emphasis
added). Prejudging the evidence is not a proper vehicle for the court’s denial of the

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motion to amend.” Dolphin Cove Ass’n v. Square D. Co., 616 So. 2d 553 (Fla. 2d DCA
1993).

Failure to Attach Required Document......

All bonds, notes, bills of exchange, contracts, accounts, or documents on which an action
may be brought or defense made must be incorporated in or attached to the pleading. Fla
R Civ P 1.130(a). Therefore, a motion to dismiss for failure to state a cause of action
must be granted if the document on which the complaint is based is not attached. Walters
v. Ocean Gate Phase I Condo., 925 So 2d 440, 443-44 (Fla 5th DCA 2006) (court could
not find that cause of action was stated where no contract or agreement regarding specific
performance claim was attached to complaint); Contractors Unltd., Inc. v. Nortrax
Equip. Co. S.E., 833 So 2d 286, 288 (Fla 5th DCA 2002) (complaint based on written
instrument does not state cause of action until instrument or adequate portion thereof, is
attached to or incorporated in complaint); Hughes v. Home Sav. of Am., F.S.B., 675 So
2d 649, 650 (Fla 2d DCA 1996) (motion to dismiss granted when amended complaint
failed to attach mortgage documents sued on); Safeco Ins. Co. of Am. v. Ware, 401 So
2d 1129, 1130 (Fla 4th DCA 1981).

Bona Fide Purchaser for Value: Constructive notice has been defined as notice imputed
to a person not having actual notice; for example, such as would be imputed under the
recording statutes to persons dealing with property subject to those statutes, Actual notice
is also said to be of two kinds: (1) express, which includes what might be called direct
information; and (2) implied, which is said to include notice inferred from the fact that
the person had means of knowledge, which it was his duty to use and which he did not
use, or, as it is sometimes called, implied actual notice. Constructive notice is a legal
inference, while implied actual notice is an inference of fact, but the same facts may
sometimes be such as to prove both constructive and implied actual notice. Florida
Masters Packing, Inc. v. Craig, 739 So. 2d 1288, 1290 (Fla. 4th DCA 1999).

Illegal Contract: An agreement that is violative of a provision of a constitution or a valid

statute, or an agreement which cannot be performed without violating such a
constitutional or statutory provision, is illegal and void. And when a contract or
agreement, express or implied, is tainted with the vice of such illegality, no alleged right
founded upon the contract or agreement can be enforced in a court of justice. For courts
have no right to ignore or set aside a public policy established by the legislature or the
people. Indeed, there rests upon the courts the affirmative duty of refusing to sustain that
which by the valid statutes of the jurisdiction, or by the constitution, has been declared
repugnant to public policy. Local No. 234 of United Association of Journeymen and
Apprentices of Plumbing and Pipefitting Industry of United States and Canada v.
Henley & Beckwith, Inc., 66 So. 2d 818, 821 (Fla. 1953). See also Deep South Systems,
Inc. v. Heath, 843 So. 2d 378, 381 (Fla. 2d DCA 2003); John Hancock-Gannon Joint
Venture II v. McNully, 800 So. 2d 294, 297 (Fla. 3d DCA 2001); Castro v. Sangles, 637
So. 2d 989 (Fla. 3d DCA 1994); Steinberg v. Brickell Station Towers, Inc., 625 So. 2d
848, 850 (Fla. 3d DCA 1993), rev. denied, 637 So. 2d 237 (Fla. 1994); D & L Harrod,
Inc. v. U.S. Precast Corporation, 322 So. 2d 630, 631 (Fla. 3d DCA 1975); City of
Leesburg v. Ware, 153 So. 87 (Fla. 1934).

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The Requirement of Corpus Delicti

The phrase “corpus delicti” derives from the Latin for “the body of the wrong” or “the body
of the offense,” i.e. the elements of the offense. Each such element must be established to the
exclusion of a reasonable doubt if the prosecution is to obtain conviction. See Golden v. State,
629 So. 2d 109 (Fla. 1993); Huck v. State, 881 So. 2d 1137 (Fla. 5th DCA 2004).

The doctrine of corpus delicti has an additional, and more specific, application in Florida
criminal practice. Before a defendant’s confession can be admitted into evidence the prosecution
must prove by substantial evidence the corpus delicti of the crime independent of the statement.
Tanzi v. State, 964 So. 2d 106, 116 (Fla. 2007) (by the end of trial, the corpus delicti must be
proved beyond a reasonable doubt); J.B. v. State, 705 So. 2d 1376 (Fla. 1998) (defendant must
make contemporaneous objection in order to preserve issue for appeal); Schwab v. State, 636 So.
2d 3, 6 (Fla. 1994) (corpus delicti cannot rest upon confession or admission alone; there must be
proof of a corpus delicti beyond reasonable doubt); Lambright v. State, 16 So.582 (Fla. 1894).
Here, however, the standard is not proof beyond a reasonable doubt. “Substantial evidence”
simply means prima facie evidence that a harm has been suffered of the type contemplated by the
charges, and that such harm was incurred due to the criminal agency of another. Shelden v. State,
38 So. 3d 214 (Fla. 2d DCA 2010) (in absence of evidence tending to establish the “wanton or
malicious” element of the crime of shooting within or into a building, a second-degree felony, the
State failed to prove the corpus delicti so as to permit the introduction of defendant’s statements
to deputy); Geiger v. State, 907 So. 2d 668, 672 (Fla. 2d 2005) (a person’s confession to a crime
is not sufficient evidence of a criminal act where no independent direct or circumstantial
evidence exists to substantiate the occurrence of a crime. The judicial quest for truth
requires that no person be convicted out of derangement, mistake or official fabrication,
citing State v. Allen, 335 So. 2d 823, 825 (Fla. 1976)); Chaparro v. State, 873 So.2d 631 (Fla. 2d
DCA 2004) (corpus delicti may not be established solely by a confession, but confessions and
admissions are properly considered in connection with other evidence to establish corpus delicti);
Mackerley v. State, 754 So. 2d 132 (Fla. 4th DCA 2000) (corpus delicti rule requires the State to
at least show the existence of each element of the crime to authorize the introduction of a
defendant’s admission or confession). An excellent summary and application of the law of corpus
delicti is given in Williams v. State, 689 So. 2d 393 (Fla. 3d DCA 1997). See also Franqui v.
State, 699 So. 2d 1312 (Fla. 1997); Thomas v. State, 693 So. 2d 951 (Fla. 1997); Meyers v. State,
704 So. 2d 1368 (Fla. 1997).

The defendant in Harrison v. State, 483 So. 2d 757 (Fla. 2d DCA 1986), was convicted of
possession of a firearm by a convicted felon. Suspicious behavior in the vicinity of a gas station
cum convenience store prompted a call by the store attendant to the police. Police arrived,
patrolled the area, found Harrison nearby, read him his rights, and questioned him. He gave
information about one Johnston, who was later arrested and found to be armed. Some hours
afterward, the police went to Harrison’s home and interviewed him again, at which time he
confessed that he had been in possession of a firearm. No gun was found on his person. No one
testified at trial to having seen Harrison armed. In the circumstances, Harrison’s conviction was
“precisely what the corpus delecti (sic) doctrine prohibits, i.e. a conviction solely based on
[the accused’s] confession.” Harrison, 483 So. 2d at 758.

Compare Thomas v. State, 531 So. 2d 708 (Fla. 1988). There the police, acting upon an
informer’s tip, apprehended Thomas in a neighborhood afflicted by frequent burglaries. At

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the time of his arrest, Thomas was wearing socks on his hands and carrying a screwdriver;
his response to the approach of the police was to jump a fence and run. Mindful that corpus
delicti need only be proved “by evidence tending to show that a crime has been committed,”
and that “circumstantial evidence of a violation is enough,” the Florida Supreme Court had
no difficulty concluding that Thomas’ confession was properly admitted.

The corpus delicti rule exists to insure that “no person be convicted out of a derangement,
mistake or official fabrication.” State v. Allen, 335 So. 2d 823, 825 (Fla. 1976). Thus, any harm
attendant to admitting a confession before the corpus delicti is established is remedied provided
corpus delicti is made out before the prosecution rests its case in chief.

A novel addition to the statute books is Fla. Stat. §92.565, which provides that with respect to
most crimes involving sexual misconduct, the defendant’s “memorialized confession” is
admissible without regard to the corpus delicti rule upon a finding by the trial court that the
confession is “trustworthy.” See generally Peterson v. State, 810 So. 2d 1095 (Fla. 5th DCA
2002); State v. Dionne, 814 So. 2d 1087 (Fla. 5th DCA 2002), review dismissed, 865 So. 2d 1258
(Fla. 2004). See also Hernandez v. State, 946 So. 2d 1270 (Fla. 2d DCA 2007) (trial court failed
to make proper findings under §92.565 before admitting defendant’s confession); Geiger v. State,
907 So. 2d 668 (Fla. 2d 2005) (State failed to meet “trustworthiness” test under §92.565).
Presumably a “memorialized” confession is one that is holographic, audio- or video-recorded, or
reduced to writing and then signed or initialed by the defendant. An oral confession reflected in a
police officer’s report or rough notes ought not to be considered “memorialized” for this purpose.

Note, too, that under §92.565, the prosecution cannot simply opt to omit proof of corpus
delicti. The trial court must make a finding that the prosecution is unable, for any of a variety of
reasons (examples of which appear in the statute), to establish corpus delicti before the provisions
of the statute are triggered. B.P. v. State, 815 So. 2d 728 (Fla. 5th DCA 2002). And in State v.
Lena, 819 So.2d 919 (Fla. 3d DCA 2002), the court held that §92.565 had no applicability to the
admission or not of a confession or admission regarding an uncharged offense; the statute
regulates the admissibility of confessions or admissions as to charged offenses only.

The Florida Supreme Court directly addressed §92.565 in Hobbs v. State, 999 So. 2d 1025
(Fla. 2008). The Hobbs Court found that trial courts are not limited in determining what factors
are important in deciding whether evidence is admissible in the absence of corpus delecti in a
prosecution under §92.565. Hobbs specifically held that a trial court may consider a victim’s
recantation when determining whether the state is unable to prove the existence of the elements of
the crime for purposes of admitting a statement under §92.565. Hobbs refused to limit §92.565,
since the statute specifically states that the factors to consider are not limited to those specified in
the statute.

The corpus delicti requirement has been legislatively jettisoned in cases involving money
laundering. Fla. Stat. §§560.123, 560.125, 655.50, and 896.101 each provide that in prosecutions
brought pursuant to those statutes (§896.101 refers to any prosecution brought “pursuant to
this chapter” not merely “this section”):the common law corpus delicti rule does not apply.
The defendant’s confession or admission is admissible during trial without the state having to
prove the corpus delicti if the court finds in a hearing conducted outside the presence of the jury
that the defendant’s confession or admission is trustworthy.

Page 9 of 17
Use Note:
Use the following model complaint as a template for building your own case-specific complaints.
Sample language for pleading specific counts (paragraph 7, below) is included throughout this
book as part of the coverage of each individual cause of action. The “sample complaints”
contained in each individual cause of action illustrate all of the elements of each claim that must
be pled in order to survive a motion to dismiss. You must plead the necessary ultimate facts to
support each count in order to satisfy Florida’s pleading standard, as described above, and allow
the Defendant to properly frame a responsive pleading.
[INSERT CAPTION]
COMPLAINT
[INSERT NAME OF PLAINTIFF(S)],(“Plaintiff”) hereby makes the following allegations against
[INSERT NAME OF DEFENDANT] (“Defendant”), and alleges as follows:
INTRODUCTION
1. This is an action to recover damages resulting from [INSERT SHORT SUMMARY OF
COMPLAINT HERE].
JURISDICTION AND VENUE
2. This Court has jurisdiction over this dispute because this complaint seeks damages in excess
of $_________ [OR INSERT APPLICABLE JURISDICTIONAL LIMITS], exclusive of interest
and attorneys’ fees.

3. Venue is proper in [INSERT NAME OF COUNTY] County, Florida because [THE DEFENDANT
RESIDES HERE, THE CAUSE OF ACTION ACRUED HERE OR THE PROPERTY AT ISSUE
IN THE LITIGATION IS LOCATED HERE].
PARTIES
4. Plaintiff is a resident of [INSERT NAME OF COUNTY], Florida, is over the age of eighteen, and
is otherwise sui juris.

5. Defendant is a [insert state of domicile of Defendant and type of entity or individual Defendant’s
name] which maintains offices [OR RESIDES] in [INSERT NAME OF COUNTY] County,
Florida.
SUBSTANTIVE ALLEGATIONS
6. [INSERT SUMMARY OF RELEVANT FACTS IN CONSECUTIVELY NUMBERED
PARAGRAPHS.]
COUNT I—INSERT TITLE OF CAUSE OF ACTION
7. Plaintiff realleges and incorporates the allegations set forth above in paragraphs 1-__ above as
if set forth herein in full.

8. [INSERT ALLEGATIONS FOR CAUSE OF ACTION HERE IN CONSECUTIVELY NUMBERED

PARAGRAPHS.]

WHEREFORE, Plaintiff demands damages against Defendant for [INSERT NAME OF CAUSE OF
ACTION].
DEMAND FOR JURY TRIAL
Plaintiff demands a trial by jury on all issues so triable.

Respectfully Submitted:

[INSERT PLEADING SIGNATURE BLOCK]

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 United States Code, Title 42, Section 1983 is the federal statutory cause of action
that allows a person to sue a government officer or entity for a deprivation of
federal constitutional rights. Section 1983 states that “[e]very person who, under
color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the
party injured in an action at law, suit in equity, or other proper proceeding for redress.”
42 U.S.C. §§ 1983 (1994). To recover damages against a government official under
section 1983, a plaintiff must establish that a constitutional right exists, that the
defendant violated that right under color of state law, and that the defendant’s acts
proximately caused the plaintiff's injury.

NATURE OF THE ACTION

Section 42 U.S.C. §1983 creates a cause of action against a person acting “under color of
any statute . . . of any State” who deprives another of a federally protected right. Only
state actors can be held liable under § 1983. The under color of state law element of
§1983 excludes from its reach merely private conduct, no matter how discriminatory or
wrongful. To be liable under §1983, the claimed deprivation must result from the
exercise of a right or privilege having its source in state authority, and the party
charged with the deprivation must be one appropriately characterized as a state
actor.

(1.) Must name only Defendants who are responsible for the constitutional violations.

(2.) Must state what rights under Constitution and/or laws have been violated and
provide support in the statement of facts for the claimed violations.

(3.) State how each named defendant is involved in the constitutional violation(s) in
the body of the complaint.

(4.) Show causal connection between the defendant(s) named and the injury
sustained and how defendant(s) participated in the deprivation of Plaintiff’s
constitutional rights or directed such action and/or omission that resulted in the
deprivation.

(5.) Must show specifically how Plaintiff has been damaged (how you have been
harmed or injured by the actions and/or omissions of the defendant(s).

(6.) How actions of the municipality or county rise to the level of a custom or official
policy.

For the purposes of § 1983, the actions of a nominally private entity are attributable to
the state when: (1) the entity acts pursuant to the coercive power of the state or is
controlled by the state (“the compulsion test”); (2) when the state provides significant
encouragement to the entity, the entity is a willful participant in joint activity with

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the state, or the entity’s functions are entwined with state policies (“the joint action test”
or “close nexus test”); or (3) when the entity has been delegated a public function by the
state (“the public function test”). It is not enough, however, for a plaintiff to plead state
involvement in some activity of the institution alleged to have inflicted injury upon a
plaintiff; rather, the plaintiff must allege that the state was involved with the activity
that caused the injury giving rise to the action. The question is not whether the
decision to establish the private entity was state action, but rather whether the private
entity’s decision to sanction plaintiffs may be fairly attributable to the government.
Sybalski v. Independent Group Home Living Program, Inc., 546 F.3d 255 (2nd Cir.
2008)

1. One way to prove “wilful joint action” is to demonstrate that public and private actors
engaged in a conspiracy. This requires proof that the public and private actors shared a
common, unconstitutional goal.
2. The pleadings in such a conspiracy claim “must specifically present facts tending to
show agreement and concerted action.” Sigmon v. Community care HMO, Inc., 234
F.3d 1121 (10th Cir. 2000).

However, a private party acting with a Public Official may be held liable under
§1983 if he or she is a “willful participant in joint activity with the State or its
agents.” Cinel v. Connick, 15 F.3d 1338, 1343 (5th Cir. 1994). This includes Citizens
outside the state or local government. (quoting Adickes v. S.H. Kress & Co., 398 U.S.
144, 152, 90 S.Ct. 1598, 1606, 26 L.Ed.2d 142 (1970). . In order to properly establish
his/her claim, the plaintiff must allege facts indicating: 1. an agreement between the
private and public defendants to commit an illegal act; and 2. an actual deprivation
of constitutional rights.

It should always be remembered, however, that municipalities enjoy no immunity

for their constitutional torts. A municipality can be liable for a violation of §1983 if
one of its municipal official’s decisions constituted an execution or implementation of
official policy. Pembaur v.City of Cincinnati, 475 U.S. 469, 477-81, 106 S.Ct. 1292,
1297-99 (1986).

To sustain a §1983 claim under this test, the symbiotic relationship between the public
and private entities must involve the alleged constitutional violation.
Patrick v. Floyd Medical Center, 201 F.3d 1313 (11th Cir. 2000).

“To convey a title the seller must himself have a title to the property which is the
subject of the transfer" 3 B. & C. 47; 3 Burr. 1516; 5 T. R. 683; 7 Bing. 284; 7 Taunt.
265, 278; 13 East, 509; Bouv. Inst. Index, h.t.

A person may not be evicted from a residence without post-judgment notice and the
opportunity to be heard and post-deprivation remedies of any sort would be
inadequate to redress an unconstitutional eviction in light of the paramount
importance of the plaintiff’s interest in maintaining possessory right to his place of
residence. Eviction has traditionally involved greater procedural safeguards than those

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related to less severe deprivations; an individual’s immediate loss of possession of his or
her home has greater adverse consequences than the loss of personal property or even a
portion of an individual’s wages. Revis v. Meldrum, 489 F.3d 273 (6th Cir. 2007).

The Florida Constitution provides that no person shall be deprived of life, liberty, or
property without due process of law (Fla Const Art I § 9). Thus, the Fourteenth
Amendment to the United States Constitution prohibits state action which would deprive
any person of life, liberty, or property without due process of law and the Florida
Constitution imposes similar restraints on the state. Cash v Culver (Fla) 122 So 2d 179
(1960).

Decision by the Policy Maker

1. In order to prevail on a claim against a municipality under § 1983 based on acts of a

public official, a plaintiff must prove: (1) actions taken under color of law; (2)
deprivation of a constitutional or statutory right; (3) causation; (4) damages; and (5)
that an official policy of the municipality caused the constitutional injury.
2. The official policy element can only be satisfied where a plaintiff proves that a
municipal policy of some nature caused a constitutional tort. A municipality may not
be found liable simply because one of its employees committed a tort.
3. A municipality cannot be made liable under § 1983 for acts of its employees by
application of the doctrine of respondeat superior. A plaintiff must demonstrate that,
through its deliberate conduct, the municipality was the moving force behind the
alleged injury.
4. A plaintiff may hold a municipality liable for a single decision by a municipal
policymaker. To do so, the plaintiff must show that the official had final
policymaking power, and the challenged actions must be within that official’s area
of policymaking authority.
5. An official has final authority if his decisions, at the time they are made, may fairly be
said to represent official policy. Whether an official has final policymaking authority is a
legal question, determined on the basis of state law. The critical inquiry is not whether an
official generally has final policymaking authority; rather, the court must specifically
determine whether the government official is a final policymaker with respect to the
particular conduct challenged in the lawsuit.

A wrongful seizure or sale of property under legal process constitutes a conversion. Such a conversion
may be predicated upon the seizure or sale of property exempt by law, or of property of one person
under legal process directed against another, or upon the failure to comply with various legal requirements
in reference to the disposition of the property, or to conduct the sale thereof in accordance with the
requirements of law. Wright v Spencer (Ala) 1 Stew 576; Milner & Kettig Co. v De Loach Mill Mfg. Co.,
139 Ala 345, 36 So 765.
In theft, as distinguished from robbery, the property is fraudulently taken from the possession of the
owner or from some person holding the same for the owner, and it is not necessary that the property be in
the actual possession of the owner or the person holding it for the owner, constructive possession being
sufficient. In robbery, the property must be taken by force and violence, not necessarily from the owner,
but from any person in possession thereof whose right of possession is superior to that of the robber.
Barfield v State, 137 Tex Crim 256, 129 SW2d 310, 123 ALR 1093.

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 “HOW TO FILE A FEDERAL SUIT”
(and take it all the way to the U. S. Supreme Court)

If your Constitutional rights have been violated, or you have claims against judges,
lawyers, or government entities, you can file a lawsuit in federal court. It is a usually a three-
step process done by mail over a 2-year period: (1) filing in a Kansas district court; (2)
appealing to the Tenth Circuit court in Denver; and (3) filing a writ of certiorari with the U.S.
Supreme Court to ask them to hear your case. As a pro se litigant, here are the steps we have
learned (subject to their changes without notice!):

1. Determine who your defendants are and your claims against them (see examples of claims
in cases # 1, 2 & 3 under “Supporting Documents” on our website at
www.assocforhonestattys.com.)

2. Make sure you are within the statute of limitations for filing your case (usually two years
for fraud-related claims.) Send your defendant(s) a contact letter, certified with return receipt
required, asking them to offer a settlement within 30 days or you intend to file suit. An
example is below:

CONTACT LETTER (Example)

(Today’s date)
(Defendant’s Name) (Additional Defendant) (Additional Defendant)
(Address) (Address) (Address)
(City), (State) (Zip Code) (City), (State) (Zip Code) (City), (State) (Zip Code)

Re: NOTIFICATION OF PENDING LITIGATION

Dear Mr. _________/Mr.__________/Ms.__________:

This letter is to advise you that I have contacted the Association for Honest Attorneys with
regard to the above matter. The A.H.A! is a non-profit organization that tries to discourage
litigation and improve the legal system. As a last resort, they help show people how to file their
own lawsuits.
Concerning the matter of ___________which is continued and ongoing; it is my intention to file
a federal lawsuit. I believe that various causes of action exist, both civil and/or criminal, against
you (the attorneys, judges, police, courts and/or others). These include (examples:
conspiracy/collusion, fraud by commission, fraud by omission, fraud on the court, false
imprisonment, 42 USC 1983 Denial of Rights Under Color of Law, 5th Amendment right to due
process of law, detrimental reliance, ineffective assistance of counsel, obstruction of justice,
abuse of discretion, tort of outrage, intentional emotional distress), as well as breach of fiduciary
duty and misrepresentation by various attorneys.
Prior to filing this suit in federal court, it is my desire to attempt a good faith resolution of this
matter. If this is your desire as well, please contact me in writing no later than (30 days out).

Sincerely,

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 (Hand-write your signature)
(Your name - typed)
(Address - typed)
(Phone number - typed)

3. After sending your contact letter certified with return receipt required, keep the green cards
you get back from the post office so you can later file them with the court. Always try and
work out your matter through compromise and negotiations first before you proceed with
filing a suit. If your defendant(s) don’t respond at all or won’t work things out, then proceed
to the next step.

4. Go down to the federal courthouse in Wichita (or Topeka or K.C.) and get a packet with
detailed instructions on how to file your suit pro se. You can use their complaint form if you
prefer.

5. You can also construct your complaint similar to any of the three cases we have filed under

“Supporting Documents” on our website at www.assocforhonestattys.com. In the case

caption (i.e., Johnson v. State of Kansas), make sure you use lower case letters. Remember
that your “Bible” for following the rules in federal court cases is the Federal Rules of Civil
Procedure found in your law library, or these can be found on-line at
www.law.cornell.edu/rules. In your complaint, don’t forget to ask for a jury trial and to
designate which court you want it heard in (Wichita, Topeka or K.C.).

6. You must file your lawsuit (complaint) at the federal court in either Wichita, Topeka or

Kansas City. Include a civil cover sheet and issue summonses for all defendants according to
the instructions in the packet (keep a copy for yourself but make sure it is stamped with a seal
by the court). Call the Secretary of State’s office (785-296-4564) to find out the RESIDENT
AGENT for each company that you are suing – this is the name & address that you will send
your lawsuit to. Attach a certificate of service to your complaint (if a government agency,
certificate of service must be notarized). Send copies by regular mail to each defendant
certified with return receipt required (get all copies of your complaint and summonses
stamped by the court, and send the Original + 1 copy of the complaint to every named
defendant.) If serving an insurance company, you must also serve the Kansas Insurance
Dept., 420 SW 9th St., Topeka, KS 66612 and include a $25.00 fee payable to them.

7. There is a filing fee of $350.00 that must be paid to the court at the time your complaint is
filed. If you cannot pay the filing fee, complete the court forms to file a motion to proceed
without prepayment of fees and affidavit of financial status, and send a copy to each defense
attorney with your complaint. Then wait for a ruling from the court which may allow you to
proceed without payment of this fee. NOTE: To view your state or federal case on line, you
must sign up for “Pacer Access” at www.pacer.uscourts.gov and click on “register.” The
charge is .08 cents a page to view anything on your case. Otherwise, if you want to make sure
the court has received your documents, call 1-800-676-6856. In addition, here are the
following court phone #’s: U.S. District Court for District of Kansas: 316-315-4200 (Topeka:
785-338-5400; KC: 913-735-2200) U.S. Court of Appeals for the Tenth Circuit in Denver:
303-844-3157 United States Supreme Court in Washington, D.C.: 202-479-3011

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8. After receiving the green card back in the mail for each defendant served, you must file
this with the court (tape it to page 2 of your summons, make a copy for yourself and get both
stamped by the court.) File one with the court and keep the other for your records.

9. Defendants have 20 days to respond to your suit (60 days if the U.S. government or an
entity is a defendant). If they fail to answer, you can file a motion for default judgment, but
you must have proof of service on file to do this (green card filed with court.)
10. Respond to all motions to dismiss within the required time of 20 days. (Rule 12) The best
sources for researching cases and laws at the law library are Black’s Law Dictionary,
Westlaw, and books on Causes of Action. Remember to only quote federal cases in a federal
suit!

11. If your case is dismissed in the Kansas District Court (and they usually are), file a Notice
of Appeal (within 30 days of judgment) at the federal court, pay a filing fee of $455.00, and
send one copy to all parties. If you cannot pay the filing fee, complete the court forms to file
a motion to proceed without prepayment of fees and affidavit of financial status, and send a
copy to each defendant. Wait for the court’s ruling to proceed without paying this fee.

12. File an Entry of Appearance and a Transcript Order Form within 10 days after filing
your Notice of Appeal. The original + 3 copies of EOA are mailed to the Tenth Circuit,
send original TOF to District Court, 1 to Court Reporter, 1 copy to 10th Circuit, and
copies to all defendants.

13. After you receive a letter from the Tenth Circuit acknowledging the case and giving it
a case number, they will send you a packet of instructions. You have 10 days to file their
Docketing Statement, and you must attach the following: District Court Docket Sheet,
Order or Judgment; any post judgment motions and the Notice of Appeal. The original +
4 copies are mailed to the Tenth Circuit, send a copy to all defendants/defense attorneys.

14. After receiving a copy of the Designation of Record & ROA, file a motion to
supplement the ROA if they fail to include all pertinent motions/orders/responses. All
motions and your brief must be 14 pt. w/1” margins. File original + 3 copies with the
court.

15. You must file an opening brief on Form A-12 within 40 days after you receive a letter
from the Tenth Circuit certifying that the record is complete (see Rule 28(a). Send
Original + 7 copies to the court certified w/return receipt, one copy to defense attorneys.

16. Wait for a response from defendants. When you get it, you have 14 days to file a
reply if you wish, but the three-day mail rule does not apply. A reply does not need to be
in bound book format. Review Fed. R. App. P. 28, 31, 32, and 10th Cir. R. 35, 40 to
make sure you prepare it properly. File the original + 7 copies with the court, one copy to
each of the defense attorneys.

17. Wait for a ruling by the Tenth Circuit, and if it is dismissed, you can then file a Writ
of Certiorari with the United States Supreme Court. You have 90 days to do this from the

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date of the circuit court ruling. Call the U.S. Supreme Court at the phone number in #6
above, and they will send you a packet with instructions. Make sure it is the most current
copy of the rules and follow them TO THE LETTER. There are two ways to file and if
you don’t follow the instructions provided; they will reject it back and you will have to
do it all over. If you are not filing informa pauperis (without prepayment of fees), make
sure you type your writ in 12-pt. Century Schoolbook font. Your Writ of Certiorari
booklets must be stapled and bound with black tape and 40 copies plus original
Certificate of Compliance (notarized) must be sent to the U.S. Supreme Court. A separate
certificate of Word Count (notarized) must be included.

18. A check for $300 must be made out to the “Clerk of the U.S. Supreme Court.” Your
writ of certiorari and copies should be air mailed with return receipt required in a padded
envelope or box, addressed to: Supreme Court Clerk’s Office, Supreme Court of the
United States, 1 First Street, NE, Washington, D.C. 20543. Send three copies of your writ
and cert to each defense attorney.

19. Wait for a letter from the court that states they are adding your writ to their docket for
review. A number is given to your writ (i.e., 11-5). You must mail a copy of the waiver
form (and Notice of Service to the court) to each of the defendants. Then wait for a
disposition letter from the court.

20. United States Supreme Court judges meet in March and September to discuss which
cases they will hear. Remember that just because your case is assigned a docket number
and put on the docket doesn’t mean the U.S. Supreme Court is going to hear it – this is
just a formality. The court will send a letter to advise you whether your case will be
heard. If it is, a person is assigned to assist you and a packet of information is sent. When
publicity is given, then you know it will be heard.
Updated: April 20, 2011

Disclaimer: The above information is designed to provide accurate and authoritative

information with regard to filing a federal lawsuit in the state of Kansas. The foregoing is
provided with the understanding that the above information is entirely the opinion of
provider Joan Heffington and/or the Association for Honest Attorneys (A.H.A!) based on
extensive research and pro se cases previously filed. The information is presented with the
understanding that the Association for Honest Attorneys (A.H.A!), Joan Heffington and/or
its board members are not engaged in rendering legal advice or legal services, accounting,
or other professional services, that fees are not accepted by the A.H.A! for providing the
above information, and that a fee has not and will not be paid to Joan Heffington, the
A.H.A! or its directors for this information. If legal advice or other expert assistance is
required, the services of a competent professional should be sought. In pursuing a legal
matter or otherwise utilizing the above information, the person receiving this information
agrees to indemnify and hold harmless Joan Heffington, Cortland Berry, and/or the
Association for Honest Attorneys (A.H.A!), for any expenses, indemnity, attorney fees or
other costs. The A.H.A! makes no representations or warranties of any kind as to the
accuracy of the information and content included herein. Court rules and documents for
filing a pro se federal lawsuit are subject to change without notice, which may result in
errors or changes in the above process.

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