CIVIL PROCEDURE CLASS 10

Professor FischerColumbus School of Law

The Catholic University of America

Sept. 25, 2001

WRAP-UP OF LAST CLASS

We learned about the rules for relation back under FRCP 15 (c )

Relation back rules apply only where the SOL has run

Before there can be relation back, amendment must be permitted (15(a), (b))

WHAT WILL WE DO TODAY?

Do a couple of hypos on relation back Argue Practice Exercise 10 Discuss when an attorney, firm or party

may be subject to sanctions under FRCP 11 Discuss, if time permits, Practice Exercise

11 NOTE: I will not discuss P.E. 9, because I

handed out a model answer. If you have questions on P.E. 9, please let me know.

HYPO ON RELATION BACK

Jim, a pedestrian, brings a claim in negligence against Barry, the driver of a car that struck him. Jim moves to amend to add a claim that Barry negligently failed to stop and render appropriate aid at the scene of the accident. If granted, will this amendment relate back under Rule 15 (c )? Why or why not?

ANOTHER HYPO Erik is angry about a statement made by

Professor Fischer in a class hypothetical on 8/27/00 He files a libel action in federal court for the District of Maryland on 9/12/00 naming “Marianne” Fischer as D in his complaint. Erik serves the complaint by personal service on Professor Fischer at the law school on 9/15/00. Assume the statute of limitations is 1 year. Erik learns that Professor Fischer’s first name is not “Marianne” but “Susanna”. On 9/18/01 Erik moves to amend his complaint to change the defendant’s name to “Susanna”. Will the amendment relate back?

SUPPLEMENTAL PLEADINGS

When and why would a court permit service of a “supplemental” pleading?

What rule governs supplemental pleadings?

MUST a party serve a supplemental pleading?

TIME LIMITS FOR RESPONDING TO AMENDED

PLEADINGS How long does a party have to

respond to an amended pleading? What is the governing FRCP?

PRACTICE EXERCISE 10

Argument on motion to amend in Carpenter

Plaintiff’s counsel (A-H) Defendants’ counsel (I, J) Counsel for Ultimate Auto (K-P) Counsel for City of Lowell (Q-V) Clerks to the presiding judge (W-Z)

PRACTICE EXERCISE 10

Tips on Arguing Motions Make argument quickly, assuming judge

doesn’t know much about facts/law State who you are and who you represent Tell judge what must be decided Give sufficient information about facts, or

cases or rules on which you rely Answer judge’s questions when she asks

them Meet your opponent’s arguments

Rule 11 of the FRCP

Attorneys and parties are subject to certain PROFESSIONAL STANDARDS when filing PLEADINGS, MOTIONS and other LITIGATION DOCUMENTS as well as “LATER ADVOCATING” allegations in these documents in ORAL ARGUMENT

Does not apply to DISCOVERY (11(d)) Failure to comply with Rule 11 MAY

RESULT IN SANCTIONS against attorney, firm, party

MAJOR REVISIONS TO RULE 11

1983 (very stringent: mandatory sanctions requiring lawyers to conduct adequate factual and legal investigation before bringing civil lawsuits)

1993 (eased this stringency)

PURPOSE OF RULE 11

What is the purpose of Rule 11?

PURPOSE OF RULE 11

What is the purpose of Rule 11? To deter frivolous lawsuits and abusive litigation practices by ensuring that lawyers conduct adequate factual and legal investigations prior to commencing suit

STRUCTURE OF RULE 11

11(a) Signature requirements 11(b) Representations made by

filing or submitting pleadings, motions or court papers

11© Sanctions for violating 11(b) 11(d) inapplicability of 11(a)-© to

discovery

SIGNATURE REQUIREMENTS

What signature requirements are laid down by Rule 11?

What provision of Rule 11 provides for these signature requirements?

FRCP 11 SIGNATURE REQUIREMENTS

FRCP 11(a) Pleadings, written motions and “other

papers” filed or served in litigation must be SIGNED by at least one attorney of record or by unrepresented parties

Also should have signers address/phone no.

Earlier verification requirement abolished in absence of rule or statute

FAILURE TO COMPLY WITH FRCP 11(a)

What is the effect of failure to comply with the signature requirements of Rule 11(a)?

STANDARDS PLEADINGS MUST MEET: RULE 11(b)

What does signing or filing a document with the court or later arguing on behalf of that document CERTIFY?

FRCP 11(b) certifications

FRCP 11(b)(1): [the document] is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

FRCP 11(b) certifications

FRCP 11(b)(2): the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

FRCP 11(b) certifications

FRCP 11(b)(3): the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery

What if only part of the document violates the Rule?

FRCP 11(b) certifications

FRCP 11(b)(4): the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonable based on a lack of information or belief.

Scope of 11(b) requirements

Does 11(b) requirements relate to a signed intent to sue letter?

See also 11(d) – 11(a)-© don’t apply to disclosures and discovery requests, responses, objections, and motions under Rules 26-37. There are separate sanctions for discovery abuses in these rules.

NONCOMPLIANCE WITH 11(b)

What happens if a party or attorney violates any of the certification requirements in 11(b)?

NON-COMPLIANCE WITH FRCP 11(b

FRCP Rule 11(c ) Attorney, law firm and/or party may be

SANCTIONED! Sanctions are discretionary 11 (c ) does NOT apply to violations of

FRCP 11(a) A party can move for sanctions. Can a party move for sanctions against her

own attorney? Can the court sanction sua sponte?

RULES FOR SANCTIONS MOTIONS

You can’t make a sanctions motion with other motions 11©(1)(a)

Sanctions motions must allege with specificity the alleged violations of Rule 11(b)

Winning party may be awarded costs of sanctions motion 11©(1)(a)

SAFE HARBOR RULE

SAFE HARBOR RULE

What is the “safe harbor” under FRCP 11( c) and how does it work?

Why do you think the safe harbor rule was introduced?

Do you think it is a good change?

COURT-INITIATED SANCTIONS

If the court believes that Rule 11(b) has been violated, what is the procedure?

Does the safe harbor apply to court-initiated sanctions?

PLEASE NOTE: court-initiated sanctions are relatively rare and reserved only for grievously offending conduct similar to contempt of court

POLICY OF DETERRENCE

Please explain the policy of deterrence limiting a sanctions award under FRCP 11 and state what subsection of FRCP 11 contains this policy.

What types of sanctions may be awarded under Rule 11©?

TYPES OF RULE 11 SANCTIONS

MONETARY: payment of penalty into court, payment to moving party of reasonable attorneys’ fees or costs, but NOT punitive damages

Must make motion for attorneys fees or costs

NONMONETARY: reprimands, dismissals, findings, strikiing paper

What limits exist on monetary sanctions under Rule 11©?

LIMITS ON MONETARY SANCTIONS

1. When are monetary sanctions unavailable against a REPRESENTED PARTY?

What subsection of FRCP 11 governs? 2. Cannot award monetary sanctions sua

sponte if show cause order issued before any voluntary settlement or dismissal

3. Court must consider financial status of a Rule 11 offender

4. Duty to mitigate

SANCTIONS ORDERS

What does 11©(3) provide?

PROGRESS FEDERAL SAVINGS BANK v.

NATWEST State or federal court? What procedural stage has this

action reached? What procedural issue must the

court decide?

PROGRESS FEDERAL SAVINGS BANK v.

NATWEST How does the court rule on this

issue? What is the court’s reasoning?

PRACTICE EXERCISE 11

Consider all four counts of the complaint and advise as to what, if any, additional factual or legal investigation is needed as to any count.

Are there any allegations in the complaint for which the partner should use the hedging language permitted by FRCP 11(b)(3)?