finding the pleading insufficient the district court made a fundamental and highly prejudicial error in selecting the standard of review that apply to get the i c's jurisdiction challenge treating that challenge as a factual challenge rather than what it was clearly intended only as a facial town meaning one meaning that the court lacked your restriction because well the court said that it lacked jurisdiction because i find that you failed to present sufficient evidence to me to prove jurisdiction by a preponderance but in doing that the court didn't accept the allegations in the complaint and limited its analysis to looking only at what the complaint said and the inferences available there from there was no record there was no evidence submitted by anyone and certainly the plaintiff had no notice that the court was going to treat what the f b i c has never said it intended to make into a factual challenge as anything or as anything but a facial hair so  looking at that challenge what was the error well thought i could but you are very you're always walking around here discovery would proceed on background it of basically allow you to walk flesh out your complaint sure if they want to persist in raising a subject matter jurisdiction challenge meaning if they don't believe that my client lacks notice in time to file a timely claim by the bar date then i suppose that we can take discovery on that issue and they can ask did you have this like you know we did something you didn't know all right so that's the nature of the discovery sure but this i thought you also had a point that you could have discovered the procedures being followed here as to whether or not there october eighth letter had been not i don't think i need to pursue it because i think that the pleading sets out the case for subject matter jurisdiction right but if it is disputed then sure will have right and it will make an evidentiary record on whether or not we need the two she was at least on inquiry notice so while publication alone does not necessarily suffice given who she was the type of work she was doing she at least was placed on inquiry notice i think there is very well i know you disagree but hear me out and there's nothing in the complaint other than those three paragraphs in an otherwise very long complaint that supports the inference that in those circumstances she lacked even an inquiry notice but i think that that's that illustrates the error of what the district court did right because i say i think that this is perfectly reasonable right my client knows that when banks get taken over by the f b i see the very same procedure that has to be followed the biggest but she didn't know of related businesses not washington mutual right so and she's right washington usual world isn't working right but that's not my client's world now i hear here's the head what i think is the main point which is the publication of not your clients world i understand that point but it is your client's world to the extent of who she who she was representing know well it's her on her world and to the extent of who she was suing among the dozens and perhaps more than dozens of parties that she needed to sue as a result of having taken over for these businesses but she was not representing washington mutual he was representing reselling them yet and on behalf of her clients sure and she she had to know is the argument i hear that argument but my or my point is in this exception the late fall claim exception that the when he says notice in the statute that has to meet actual numbers because if it's publication notice alone then there's no point of no we're not we're not there we're just somebody in the field and there's nothing in the complaint other than she sent a letter right and so i  solely on the complaint and with the inferences construed in favor of my client my client certainly doesn't admit in the complaint that she knew that washington mutual was in receivership so that she had the burden to demonstrate jurisdiction she has the bird to plead jurisdiction and then to prove it if it's trial and in it and if it's challenged on a factual basis then there needs to be a record me what your point could you repeat your point about  receivership right if publication notice is sufficient to defeat that and there is no exception at all because they publish the notice before you have to comply with the bargain so if it's necessarily if it publication notice is sufficient to defeat the exception then there is no exception because the publish notice goes out before anyone has to comply with the part to washington mutual at least plausibly could have i don't we don't know what happened and that's why it was wrong to the board to do it but it certainly raises an inference that the s u s e did or could have discovered the existence of my claim in which case my my claim cannot be extinguished on the basis of publication notice alone and that that's what you see in the that's the warning sort of given in this court's opinion freeman in not necessarily i think public publish notice is sufficient to defeat the claims i think of anyone who isn't known to the f b i see potentially but the late fall claim exception as it's worded right if if publication notice is sufficient to defeat it if all they have to do is say oh well we publish notice in the wall street journal then that notice goes out before anyone complies with the party and so that that fear that the whole world has noticed up point a publication arguably is to put you on notice that maybe you are doing quire sure what in order for that to be effective someone has to see it and so in order for publication of this becoming a thing like notice sufficient to defeat my right to invoke the late fall claim exception i have to know about it and there's no record what soever of that happened in representing her clients who wanted to sue an entity about whose world had imploded publication was not enough to put her on inquiry notice as to whether there had been like that ever receive so what is the point of publication of that publication is sufficient i think to defeat the claims of anyone for example who would show up today and say letter you get discovery no i don't think that's the case at all but the exception it is the exception is there now could someone today plausibly make out a case that they didn't know the receivership at the time i doubt it i sincerely doubt it but the way the statutes worded if they could prove that they were you know buried underground for seven years then they could probably invoke the exception no actual notice now they probably would miss the other problem of it which is that they file the claim in time for it to be paid but those are the only two problems and on the shall is a requirement it's not made since you must if you have reason to know that this person might have a claim and the fight here is whether or not you know complete with the was your reason for not and he will usually know there was a reason i think we didn't know that there was going to be this type of subject matter jurisdiction challenging and then when it was turned into one was you know the statute i mean you know sure and i think the receivership and i guess i'm entitle to the benefit of that inference is and there's no question that the court could not certainly not make a factual finding that my client did have actual notice there was no basis in the record or  to that it's no really there are only three allegations in the complaint that she relies on to support through her claim that she lacked note is that the receivers appointment in time to file a claim by the bar date and first the fact that she mailed a letter to washington mutual home loan rather than the receiver on october eighth two thousand and eight doesn't support the conclusion that she was unaware of the receivers appointment and time to file a claim by the party the letter was sent over two months before the  it would require several logical leap none of which is supported by any facts in the complaint to infer that a legit a letter to an entity other than the washington mutual bank or the receiver shows that she and i think that the idea if he does agree that if if a claimant could show that they lacked actual notice of the receiver's appointment the exception could apply in those circumstances but she just hasn't planted that here and the allegations that she's relying on it's just not up close the conclusion that you can draw on that she wanted to go through the other two actions and given the historic and well publicized nature of the woman failure as judge rogers notes the note is this was the large bank failure in u s history on you know the front pages of multiple newspapers covered everywhere it's just impossible that she lack knowledge at the receiver's appointment simply because she failed to receive mail notice and she filed her claim late i mean we don't know why she did that she's never told that's when she actually learned of the receiver's appointment and so without any of that it's just not plausible based on what she has alleged that she didn't know about the receivers  dispute your honor it's not just judicial notice that was taken about the j p morgan chase acquisition and even the appellant herself has stated that in her in her brief in this appeal she concedes that it's not a disputed fact so it's not responses to that first of all just i thought you know a matter of what she's play she played that she sent a letter to washington mutual home loan thank the president about it was david schneider right out of it he eyed that time on october these kinds of factual findings that are going to be to sponsor well i don't think that the district court really made any factual findings that only considered the allegations in the complaint which we agree with the district court that they were insufficient and it but moving on as for whether it be hit by the consequences of a failure to mail notice would be if the f e c were obligated to mail notice here if you're assuming that this court in freeman acknowledged that there are really no consequences to a failure to mail know is if a claimant had actual notice mochrie and so so i think that her failure to allege that she lacked actual notice the failure to include facts in her complaint that would support a reasonable conclusion that she lacked actual notice and that's the process requirement was not actually part of freeman's holding freeman acknowledged that it was really the exception only talked about lack of notice of the receiver disappointment on the freeman said that there could be a due process concern that someone  notice of the receiver's appointment she would the least an inquiry notice you know i should look into this and find out what i need to do to preserve my rights and she didn't do that i suppose or she chose to just wait we don't know because we don't know when she learned of the receiver's appointment she spatial vs battle distinction but i think what the appellant has not emphasized and i want to make sure the court doesn't lose sight of it she bears the burden to plead fact sufficient to say allow the court to conclude that it has allegations in the complaint and undisputed facts and really i feel end of the day the key difference between these challenges is whether disputed facts need to be decided the cases on which the atomic alive indicate that if there are factual disputes the plaintiffs should be allowed some time to conduct discovery if needed as appropriate to discover the information she needs to lead the necessary  but it's unclear how well discovery would have helped feldman here in her opposition to the f b i s these motion to dismiss she never asked for discovery and it's not true that no evidence was presented here the f t c attached  declaration with its publication notices to its motion to dismiss it was quite clear what the f b i sees theory was and as a person bearing the burden it was on feldman to produce evidence to support her claim that the court had jurisdiction her to ask for it she didn't and so i think that you know and also she she now claims on appeal you know i could have amended my complaint to include these allegations well because this case was stayed for many years before we eventually yes eventually filed its motion to dismiss she could have amended at any time during that period that she eventually did amend when the stay was lifted right away but didn't include any supplemental allegations about her lack of knowledge and so it's hard to see how you know how she truly would be able to make these amendments that would be plausible in the circumstances if she hasn't done so  i but i but as i said i don't think the district court really took improper traditional notice of anything by judicial notice we i think primarily the district court relied on just validations in the complaint and undisputed facts to the you took judicial notice i was merely referring to the media coverage of the washington mutual bank failure which have also been acknowledged another court decisions which were cited in the district court's opinion so i'm not really sure that it was properly well i'm what i meant but i don't think that the particular part i don't think that the particular fact about whether you know about whether a bomber who existed those sorts of things i don't i don't think they're really essential because it's undisputed that j p morgan chase acquired washington mutual's assets at that point and i mean really if there's even a question about whether washington mutual home months includes even a part of washington cases where claimants have have not received mail notice you know in those cases maybe with undisputed whether they were known to the receiver but in any case they didn't receive mail notice and yet that the bar date with them applied exceptions not to say she's entitled to male nobles i i i just think that her allegation that she sent a letter to washington mutual home loans inc is just not sufficient to draw a reasonable  that you could disagree with me but ultimately i think that it even if that's the case under the elm code properties case the fourth circuit decision that the appellant cites even if the f obligation to mail notice to her and she never received it if she had the actual notice of the receiver's appointment which we don't think she's adequately alleged that she didn't then that wouldn't matter it w failure to mail notice would essentially be harmless if she had actual notice so with that so really that's the key flaw here in her complaint she has an alleged lack of actual notice either under the exception analysis or under the due process and  not in my complaint and that's all that anyone should have been looking at and so for the district court to go off and find facts about what the state of affairs was at washington mutual where no one has said anything and there's no record for making that finding is an error now i also think just sort of fundamentally that this notion that washington mutual ceased to exist on the day that it went into a receivership and therefore every piece of mail that was in transit to washington mutual just went into a black hole and the you know if you sent your mail to someone who was fired no one ever looked at it then is that what the f b i cia does with institutions that it's you never ask for discovery is that correct even after we did ask for dinner then after the f d i c filed its motion and then attach the no the same publications correct because one we can get the exception without defeat with yes the public notice was probably doesn't matter they have to put the question is do we have actual notice of the receivership the inference is there in the complaint that we did and so i don't need discovery because i can defeat their motion because they fake confine their motion that's what i thought you were position was you do not need discovery because those three paragraphs are sufficient to show that no matter what the state of the world your client did not have notice correct all right