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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? 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
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?