Civil Procedure Notes Page 3
LAW 5301 (4 credits)
Professor Pedro A. Malavet
As I mentioned in class, we are looking at a variety of pleading standards that can be graphically described as follows:
1. Introduction: Gillispie v. Goodyear, FRCP 1, 2, 8(a), 12(b), US Const. Am. 14, 114-23
STAGES OF THE CASE (Based on Band's Refuse)
- Controversy Prior to filing.
- 1. Complaint
- 2. Answer
- 3. Intervention Motion
- 4. Counterclaim
- 5. Answer to counterclaim
- 6. Amended Complaint
- 7. Answer to Amended Complaint.
- 8. Discovery
- 9. Pretrial Order
- 10. Appointment of Amicus
- 11. Motion for Recusal
- 12. Trial
- 13. 2d Amended Answer
- 14. Mistrial Motions
- 15. Judgment
- 16. Appeal
Common Law Pleading
- 1. Declaration
- 2. Pleas (defendant's response)
- a. Plea in bar (Traverse, Confession and Avoidance).
- b. Dilatory Plea (Plea to jurisdiction, plea in abatement).
- c. demurrer (general demurrer, special demurrer).
- 3. Replication
- 4. Rejoinder
- 5. Surrejoinder, rebutter, and surrebutter
- 6. Merits? Trial?
- 1. BILL
- 2. REPLY
- 3. BILL OF DISCOVERY
- 4. JUDGMENT
WHY MUST FACTS BE PLEADED INITIALLY?
- (1) Notice to Defendant
- (2) Notice to the Court
- (3) Deciding the merits
Federal Rules of Civil Procedure 1, 2, 8(a), 12(b).
US Const. Am. XIV.
Problems with Common Law Pleading, CB-117
First, the single issue idea mentioned above meant that once the parties were at issue the court might decide the case in favor of the winner on that issue.
Second, the pigeon-hole strictness of the forms of action could prevent relief for a plaintiff clearly entitled to relief who had chosen the wrong writ due to uncertainty about what the evidence would show.
From: CB-118 (Code Pleading):
"Field Code" for David Dudley Field (1805-94), the renowned New York practitioner who spearheaded the reform effort, it abolished the existing forms of action and mandated that there be "but one form of action."
The complaint only had to contain "a statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended."
The answer should contain "a specific denial of each material allegation of the complaint controverted by the defendant" and "a plain and concise statement of any new matter constituting a defense or set-off without unnecessary repetition." Pleadings were limited to complaint, answer, reply, and demurrers.
Gillispie, CB-119 (the allegations)
"4. On or about May 5, 1959, and May 6, 1959, the defendants, without cause or just excuse and maliciously came upon and trespassed upon the premises occupied by the plaintiff as a residence, and by the use of harsh and threatening language and physical force directed against the plaintiff assaulted the plaintiff and placed her in great fear, and humiliated and embarrassed her by subjecting her to public scorn and ridicule, and caused her to be seized and exhibited to the public as a prisoner, and to be confined in a public jail, all to her great humiliation, embarrassment and harm.
"5. By reason of the defendants' malicious and intentional assault against and humiliation of the plaintiff, the plaintiff was and has been damaged and injured in the amount of $25,000.00.
"6. The acts of the defendants as aforesaid were deliberate, malicious, and with the deliberate intention of harming the plaintiff, and the plaintiff is entitled to recover her actual damages as well as punitive damages from the defendants and each of them.
"THEREFORE, the plaintiff prays that she have and recover of the defendants the sum of $25,000.00 as damages and $10,000.00 in addition thereto as punitive damages, and that she have such other and further relief as may be just and proper."Does the complaint state facts sufficient to constitute any cause of action?
Gillispie, The Rules
A complaint must contain "(a) plain and concise statement of the facts constituting a cause of action...."
The facts alleged, but not the pleader's legal conclusions, are deemed admitted when the sufficiency of the complaint is tested by demurrer. "Where the complaint merely alleges conclusions and not facts, it fails to state a cause of action and is demurrable.
What these facts are must depend upon the elements which go to make up the particular tort complained of, under the substantive law."
Therefore, the facts which constitute the negligence charged and also the facts which establish such negligence as the proximate cause, or as one of the proximate causes, of the injury must be alleged."
a statement of the facts constituting a cause of action "is not only necessary  to enable the opposite party to form an issue, and  to inform him of what his adversary intends to prove, but  to enable the court to declare the law upon the facts stated.
It would seem appropriate that plaintiff, in accordance with leave granted in the judgments from which she appealed, now file an amended complaint and therein allege the facts upon which she bases her right to recover.
[CB-120] The facts alleged, but not the pleader's legal conclusions, are deemed admitted when the sufficiency of the complaint is tested by demurrer. "Where the complaint merely alleges conclusions and not facts, it fails to state a cause of action and is demurrable.
[CB-120] What these facts are must depend upon the elements which go to make up the particular tort complained of, under the substantive law."
[CB-121] Plaintiff's allegations do not disclose what occurred, when it occurred, where it occurred, who did what, the relationships between defendants and plaintiff or of defendants inter se, or any other factual data that might identify the occasion or describe the circumstances of the alleged wrongful conduct of defendants.
Look at the notes following the case for the elements of the different charged torts.
2. Specificity, US v. Bd. of Harbor Commissioners, consistency and honesty: McCormick v. Kopmann, FRCP 7(a), 8(a), 12(b), 12(c), 12(e), 12(f), 42, 123-34
FRCP 7(a) FRCP 8(a); FRCP12(b); FRCP12(c); FRCP 12(e); FRCP12(f); FRCP 42.
(a) A pleading shall contain (1) a short and plain statement of the grounds upon which the court's jurisdiction depends, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks. Relief in the alternative or of several different types may be demanded.
(b) [Defenses] How presented. [Generally, by responsive pleading] , except that the following defenses may at the option of the pleader be made by motion: (l) 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 claim upon which relief can be granted, (7) failure to join a party under R. 19. '
(b) All averments of claim or defense shall be made in numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances; and a paragraph may be referred to by number in all succeeding pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense whenever separation facilitates the clear presentation of the matters set forth.
Excerpts from the casebook:
[CB-123] The Federal Rules of Civil Procedure . . . installed what has been described as the "liberal ethos," in which the preferred disposition of cases is on the merits, by jury trial, after full disclosure through discovery.
[CB-124] Dioguardi v. Durning, (2d Cir.1944). "however inarticulately they may be stated, the plaintiff has disclosed his claims" and "we do not see how the plaintiff may properly be deprived of his day in court to show what he obviously so firmly believes."
[CB-124] The Supreme Court, meanwhile, observed in 1947 that the Federal Rules "restrict the pleadings to the task of general notice-giving." Hickman v. Taylor (1947).
[CB-124] Conley v. Gibson (1957): "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." * * * "The decisive answer to this is that the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is a short and plain statement of the claim that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."They installed what has been described as the "liberal ethos," in which the preferred disposition of cases is on the merits, by jury trial, after full disclosure through discovery. [CB-123].
[CB-126] "The defendants, and each of them, own and operate onshore facilities located on or near Wilmington Marine Terminal from which oil was discharged into the Delaware River during the period June 25 through November 27, 1973, or the defendants, and each of them, took actions which caused such oil to be discharged."
[CB-126] Defendants SICO and NASCO contend that paragraph 11 is deceptively vague because it fails to specify (1) which defendants are responsible for the alleged discharge of oil, (2) the amount of oil discharged and the removal costs incurred, and (3) the "actions" which are alleged to have caused the discharge.
[CB-127] RULING: This allegation, together with the other averments in the complaint, fairly notifies defendants of the nature of the claim against them.
[CB-130] Count I, for damages under the Illinois Wrongful Death Act, alleged that Kopmann negligently drove his truck across the center line and collided with McCormick's automobile and that "the said decedent was in the exercise of ordinary care for his own safety and that of his property."
Count IV, brought "in the alternative to Count I," sought damages under the Illinois Dram Shop Act. It alleged that the Huls sold alcoholic beverages to McCormick which rendered him intoxicated and that "as a result of such intoxication" he drove his automobile "in such a manner as to cause a collision" with Kopmann's truck.
[CB-131] Counts I and IV, therefore, are mutually exclusive; plaintiff may not recover upon both counts. It does not follow, however, that these counts may not be pleaded together.
[RULE: The Illinois Civil Practice Act contains provisions, similar to F.R.Civ.Pro. 8(e)(2), that claims may be made in the alternative "regardless of consistency."]
RULE: Sound policy weighs in favor of alternative pleading, so that controversies may be settled and complete justice accomplished in a single action.
[Exception, CB-131] If the right is abused, as where the pleader has knowledge of the true facts (viz., he knows that the facts belie the alternative), pleading in the alternative is not justified.
" ... alternative pleading is not permitted when in the nature of things the pleader must know which of the inconsistent averments is true and which is false."
CB-132, WHEN? We hold that, in the absence of a severance, plaintiff had the right to go to trial on both Counts I and IV, and to adduce all the proof she had under both Count I and Count IV [to the jury].
["Election of Remedies"] It has been aptly said that "truth cannot be stated until known, and, for purposes of judicial administration, cannot be known until the trier of facts decides the fact issues."
Here we played with many different scenarios, assuming that two separate lawsuits had been filed, and one came to trial first. If plaintiff lost the first one, she could continue to pursue the other claim, but if she won the first trial it would be unfair to allow double recovery, and it would be illegal for her to pursue it. However, this can be complicated by rules as to the finality of a judgment.
Remember Ms. Watson's [a student from another class] important points: Alternative, even totally conflicting allegations may be made in the complaint, and may proceed to resolution on the merits, because:
(1) This promotes efficiency in resolving the entire dispute in a single litigation; and
(2) it prevents the possibility of inconsistent verdicts in two separate proceedings.
Note however, that there is one possible scenario where Plaintiff could loose against BOTH defendants: if the jury finds that her husband crossed into the path of the truck, but that this was not caused by his intoxication.
Sanctions: FRCP 11, Zuk v. EPPI, FRCP 11(a), 11(b) ("Safe Harbor"), 11(b)(3), 11(c), 54(d)(1), 1139-152
Updated February 1, 2001
I have chosen to include more material on this case in the web site purposely in order to illustrate the level of care required in your cross-referencing of the Rules.
FRCP11(a); FRCP11(b) ("Safe Harbor"); FR11(b)(3); FRCP11(c); FRCP 54(d)(1).
FRCP 12(b) [continued ...]
If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
This case is illustrative of what would have happened in the Archibald & Kendall case if the plaintiff's had not been as forthcoming about the location of the tort, i.e., if they had just said that the assault had occurred on "defendant's premises."
OLD RULE 11 (New Rule 11) (cited at page 137)
(1) Pleading, motion or other paper, i.e., writing. (11(b) parenthesis.)
(2) Well grounded in fact and is warranted by existing law. (11(b)(3), (2).)
(3) "If in violation of this rule, the court, . . . shall impose upon the person who signed it, an appropriate sanction". (11(c).)
(4) Sanction: Amount of reasonable expenses, including attorney's fees. (11(c)(2).)
b. Certification by Signing-Rule 11, CB-139
"Verification" vs. "Certification"
*** Verification requires a party to swear under oath that, to the best of its knowledge and belief, all allegations are true. The framers of the Federal Rules considered a verification requirement but decided not to impose one as a general matter, leaving verification for special circumstances. See Rule 23.1 (in derivative actions, "the complaint shall be verified"); Rule 65(b) (temporary restraining order may issue without notice to defendant only if it appears "from specific facts shown by affidavit or by the verified complaint" that notice would lead to immediate and irreparable harm).
The Federal Rules originally provided in Rule 11 that the signature on the complaint (the lawyer's if the party were represented by counsel, and otherwise the party's) certified that there was "good ground" for the claims, and the complaint could be stricken for violation of the rule. The rule was interpreted, however, to require only subjective good faith and proved to be a paper tiger. See Risinger, Honesty in Pleading and its Enforcement: Some "Striking" Problems With Federal Rule of Civil Procedure 11, 61 Minn.L.Rev. 1 (1976) (only one reported instance of striking of a complaint on Rule 11 grounds since rule adopted). In 1983, the rule was substantially amended to strengthen its provisions by placing a duty to investigate on the person signing the complaint. [1983-93 Rule11] This change led to a substantial increase in Rule 11 activity and sparked great controversy, prompted partly by concerns that sanctions were deterring assertion of certain types of claims, particularly civil rights claims. Research indicated that these problems were not so severe as some asserted, but also that there did seem to be a disproportionate impact on civil rights plaintiffs. See Report of the Third Circuit Task Force on
[CB-140]***The main ways in which the 1993 amendments changed Rule 11 were  to make the imposition of sanctions discretionary rather than mandatory,  to provide advance warning (called a "safe harbor") for withdrawal of groundless claims or defenses before sanctions were sought, and  to direct that sanctions be calibrated for deterrence rather than compensation.***
OLD RULE 11 (1983-1993)
(1) Pleading, motion or other paper, i.e., writing. (11(b) parenthesis.)
(2) Well grounded in fact and is warranted by existing law. (11(b)(3), (2).)
(3) "If in violation of this rule, the court, ... shall impose upon the person who signed it, an appropriate sanction". (11(c).)
(4) Sanction: Amount of reasonable expenses, including attorney's fees. [Compensaroty] (11(c)(2).)
The Three Periods of Rule 11
 Subjective Standard,  discretionary,  one dismissal
 Pre-filing investigation tested on objectively-reasonable standard,  mandatory,  compensation.
 imposition of sanctions discretionary rather than mandatory,  "safe harbor" and  sanctions for deterrence rather than compensation.
Zuk v. EPPI, DATES
1995, Plaintiff Files Suit
June 19, 1995, Motion to Dismiss
Some time in this period, Notice of Intent to Seek Rule 11 sanctions sent to Plaintiff's counsel [Motions Practice] [Notice] [Filing]
August 3, 1995, Order of Dimissal
August 16, 1995, Motion for Attorney's fees under 17 USC § 505
September 15, 1995, Rule 11 Motion is Filed
February 1, 1996, Order Imposing Sanctions
Zuk v. EPPI, CB-140
[CB-140] *** The district court dismissed the action on a Rule 12(b)(6) motion filed by the defendant, and appellant and his client thereafter were subjected to joint and several liability in the sum of $15,000 for sanctions and defendant's counsel fees. Dr. Zuk settled his liability and Lipman appealed. We affirm in part and vacate in part.
[CB-141] ["Unauthorized" Use?]
In 1980, upon a change in its ownership, EPPI furloughed Zuk. He thereupon requested that all copies of the films be returned to him; EPPI ignored the request. It would appear that EPPI continued to rent out the films for at least some time thereafter. For reasons which have not been made clear, after a long hiatus, Zuk renewed his attempts to recover the films in 1994. In 1995, appellant filed a suit in Zuk's behalf, alleging that EPPI was renting out the films and thereby infringed his copyright.
On June 19, 1995, EPPI moved for dismissal under Rule 12(b), and appellant filed a memorandum in opposition. While the motion was pending, EPPI mailed to Lipman a notice of its intention to move for sanctions under Rule 11(c)(1)(A) on the grounds essentially that appellant had failed to conduct an inquiry into the facts reasonable under the circumstances and into the law. [FRCP 11(c)(1)(A)] The district court entered an order granting the motion to dismiss. [Order by the court dismissing was dated August 3, 1995.] The court found that the copyright of the book afforded no protection to the films, that EPPI owned the copies of the films in its possession and that their use was not an infringement, and that in any event, Zuk's claims were barred by the statute of limitations.
[CB-141] On August 16, EPPI filed a motion for attorney's fees pursuant to 17 U.S.C.A. § 505 which appellant opposed by a memorandum in opposition on August 31. On September 15, EPPI also filed a Rule 11 [FRCP 11(c)(1)(A)] motion for sanctions, and appellant filed a memorandum in opposition. On November 1, the court entered an order to "show cause why Rule 11 sanctions should not be imposed for (a) filing the complaint, and failing to withdraw it; and (b) signing and filing each and every document presented. " [FRCP 11(c)(1)[B]] Appellant responded on December 1 with a declaration reiterating th e facts of the case as he viewed them.
[CB-141] On February 1, 1996, the court, upon consideration of defendant's motion for attorney's fees and sanctions, ordered: "That plaintiff, Gerald Zuk, Ph.D., and plaintiff's counsel, Benjamin G. Lipman, Esq. are jointly and severally liable to the defendant for counsel fees in the sum of $15,000." We must ascertain the underpinnings for the Order. It appears that Dr. Zuk subsequently settled his liability with EPPI in the amount of $6,250, leaving appellant liable for $8,750. Appellant timely appealed.
II. [Section 1927, Bad Faith, Counsel
[CB-142] We turn first to the propriety of the district court's imposition of sanctions under 28 U.S.C.A. § 1927. We review a district court's decision to impose sanctions for abuse of discretion. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 385, 110 S.Ct. 2447, 2450, 110 L.Ed.2d 359 (1990).
[CB-142] *** Although a trial court has broad discretion in managing litigation before it, the principal purpose of imposing sanctions under 28 U.S.C.A. § 1927 is "the deterrence of intentional and unnecessary delay in the proceedings." In this case, the trial court imposed sanctions on plaintiff and his counsel, not because of any multiplicity of the proceedings or delaying tactics, but for failure to make a reasonably adequate inquiry into the facts and law before filing the lawsuit. Thus, the statute does not apply to the set of facts before us. Furthermore, the statute is designed to discipline counsel only and does not authorize imposition of sanctions on the attorney's client.
[CB-142] Finally, this court has stated
that "before a court can order the imposition of attorneys'
fees under § 1927, it must find wilful bad faith on the
part of the offending attorney." Although the court need
not "make an express finding of bad faith in so many words,"
there must at least be statements on the record which this court
can construe as an implicit finding of bad faith.
[CB-142] [The appellate court concluded that the sanctions order against the attorney had to be vacated because the district court did not subdivide the sanctions between the supposed § 1927 violation and Rule 11.]
[CB-142] IV. [Violation of Rule 11]
[CB-142] FN3. Appellant contended that he was not given the benefit of Rule 11's 21-day safe harbor, because the court dismissed the action before he had had the full opportunity [CB- 143] to withdraw it. [Dates] He thus claimed that sanctions were improper under Rule 11(c)(1)(A) (upon motion by other party). EPPI maintained that the sanctions actually were imposed under Rule 11(c)(1)(B) (on the court's initiative), which has no safe harbor provision. The court issued an order to show cause, which is required only under 11(c)(1)(B), but stated that it was "in consideration of defendant's motion for sanctions." In its accompanying memorandum, the district court did not address this apparent inconsistency. At oral argument before this court, appellant acknowledged that he would not have withdrawn the complaint even if he had been given the full 21-day safe harbor. Thus, we need not address this contention. [Notice] [Filing]
[CB-142] We note at the outset that we find no error in the district court' sde cision to impose sanctions pursuant to Fed.R.Civ.P. 11.3 As noted [CB-143]above, we review a district court's decision to impose sanctions for abuse of discretion. An abuse of discretion in this context would occur if the court "based its ruling on an erroneous view of the law or a clearly erroneous assessment of the evidence."
*** Rather, the amended rule imposes a duty on counsel to make an inquiry into both the facts and the law which is "reasonable under the circumstances." [FRCP 11(b)] ***
1. THE INQUIRY INTO THE FACTS
[CB-143] In dismissing the complaint, the court found that "[i]t ... seems highly probable that plaintiff's claims are barred by the three-year statute of limitations." Later, in the Memorandum and Order imposing sanctions, the court noted that the "obvious" statute of limitations issue would have been resolved and no lawsuit filed, had appellant conducted an adequate investigation.[FRCP 11(b)(3)]
[CB-144] The [Advisory Committee] Note cited above observes that discovery is not intended as a fishing expedition permitting the speculative pleading of a case first and then pursuing discovery to support it; the plaintiff must have some basis in fact for the action. The need for a reasonable investigation with respect to distribution of the film during the three-year period prior to the filing of the lawsuit is evident because of the long period allegedly spanned by the distribution. [FRCP 8(c)]
2. THE INQUIRY INTO THE LAW Rule 11(b)(2) ***
[CB-144] Appellant's legal research was faulty primarily in two particular areas: copyright law (pertaining to what the parties call the "registration issue") and the law of personal property (the "ownership issue"). Turn ing to the registration issue, appellant states that this was the first copyright case which he had handled, and points out that a practitioner has to begin somewhere. While we are sympathetic to this argument, its thrust is more toward the nature of the sanctions to be imposed rather than to the initial decision whether sanctions should be imposed. Regrettably, the reality of appellant's weak grasp of copyright law is that it caused him to pursue a course of conduct which was not warranted by existing law and compelled the defendant to expend time and money in needless litigation. [Rule 11(b)] [FRCP 11(b)(2)]
[CB-145] *** Had appellant presented his argument as a matter of first impression, and argued for a new interpretation of the statute where the same individual authored both works, he might have stood upon a more solid footing. Instead, appellant's brief evidences what strikes us as a cursory reading of the copyright laws, and a strained analysis of what appears to be an inapposite case. [FRCP 11(b)(2)]
We now focus on the ownership issue. *** However, EPPI raises its argument too late in this proceeding. It did not rely upon, or even mention, the adverse possession theory before the district court. Because the court could not have relied upon this aspect of the ownership issue in imposing sanctions, it is inappropriate for us to consider it at this time.
According to Wright & Miller:
[CB-145] The 1993 revision . . . makes clear that the main purpose of Rule 11 is to deter, not to compensate. [11(c)(2)] ***
[CB-146]Committee Notes state that any monetary penalty "should ordinarily be paid into the court" except "under unusual circumstances" when they should be given to the opposing party. Any sanction imposed should be calibrated to the least severe level necessary to serve the deterrent purpose of the Rule. In addition, the new Rule 11 contemplates greater use of nonmonetary sanctions, including reprimands, orders to undergo continuing education, and referrals to disciplinary authorities.
[CB-146] This court has instructed the
district courts that "[flee-shifting is but one of several
methods of achieving the various goals of Rule 11," that
they should "consider a wide range of alternative possible
sanctions for violation of the rule," and that the "district
court's choice of deterrent is appropriate when it is the minimum
that will serve to adequately deter the undesirable behavior."
Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191,
194 (3d Cir.1988). [FRCP 11(c)(2)]
Thus, the district courts have been encouraged to consider mitigating factors in fashioning sanctions, most particularly the sanctioned party's ability to pay.
[CB-146] Nonetheless, when we look to the list of mitigating factors, and consider the non-punitive purpose of Rule 11, we conclude that it was error to invoke without comment a very severe penalty. On remand, the district court should apply the principles announced by this court in Doering. [FRCP 11(c)(3)]
Notes and Questions, 146
[Cb-147] 4. *** Review Rule 11 and consider how its current provisions operate:
[Cb-147] (a) Signature requirement:
[FRCP 11(a)] The rule applies to the person who signs the document
submitted to the court, ordinarily a lawyer, and authorizes sanc
tions against the lawyer's firm. Except for discovery, Rule 11
applies to all papers filed in court, so you should keep it in
mind in connection with the other matters covered in this course.
(b) Factual inquiry: By signing and submitting a document, the lawyer represents that there has been a reasonable inquiry, and that the claim has evidentiary support. This calls for an "objective" inquiry; "[a]n empt y head but a pure heart is no defense." [FRCP 11(b)] [FRCP 11(b)(3)] ***
[CB-147] If the lawyer does no investigation at all before filing, but the claim is borne out by later developments, has Rule ll(b) been violated? If not, does [CB-148] the rule exempt those with good intuition? Compare Lichtenstein v. Consolidated Serv. Group, Inc., 173 F.3d 17 (lst Cir.1999) ("a party who brings a suit without conducting a reasonable inquiry * * * and who through sheer fortuity is rewarded for his carelessness, is liable for sanctions"); Garr v. United States Healthcare, Inc., 22 F.3d 1274 (3d Cir.1994) (attorney who did an inadequate prefiling inquiry should not be shielded due to "the stroke of luck that the document happened to be justified"), with Moore v. Keegan Manag. Co., 78 F.3d 431 (9th Cir.1996) (counsel cannot be sanctioned if there is evidence supporting the claim even though there was no reasonable inquiry before suit was filed).
[Cb-149] Can the lawyer usually rely
on the client, or must she make her own investigation? ***
The new version of Rule 11 makes it even clearer that an attorney is entitled to rely on the objectively reasonable representations of the client. No longer are attorneys required [as under the 1983 version] to certify that their representations are "well grounded in fact. " The current version of the rule requires only that an attorney conduct "an inquiry reasonable under the circumstances" into whether "factual contentions have evidentiary support." [FRCP 11(b)]
[Cb-149] Note also that Rule 8(c) says
that the statute of limitations is an affirmative defense, which
only applies if defendant raises it. Should this have a bearing
on whether plaintiff's lawyer is required to investigate whether
it applies? Consider Kane, The Lawyer as Litigator in the 19
80's, 14 No.Ky.L.Rev. 311, 330-31 (1988):
[D]ifficult questions are presented for plaintiff's counsel when the facts as revealed indicate a clear defense, but the defense is waivable. Is it consistent with the obligations of Rule 11 to file the pleading knowing it can be destroyed? Some courts have said yes, some no. ***
[CB-150](c) Legal inquiry: [FRCP 11(b)(2)] *** Compare Thornton v. Wahl, 787 F.2d 1151 (7th Cir.1986) (failure to clarify that argument was not based on existing law can be sanctioned) with Golden Eagle Distrib. Corp. v. Burroughs Corp., 801 F.2d 1531 (9th Cir.1986) (no need to explain that argument is for an extension of law rather than based on existing law). What arguments could be made for the Ninth Circuit approach? The Advisory Committee did not explicitly resolve this question in the 1993 amendments, but noted that "[a]lthough arguments for a change of law are not required to be so identified, a contention that is so identified should be viewed with greater tolerance under the rule." 146 F.R.D. at 53.
(d) Harassment: [FRCP 11(b)(1)] Note that sanctions are also warranted for actions that harass or needlessly increase the cost of litigation. What does this add to 28 U.S.C.A. § 1927? ***
(e) Later advocating: [FRCP 11(b)] ***
[Cb-151] (f) Safe harbor: Even if there has been a violation, the court may impose sanctions on motion only if the violator has been warned and invited to desist. See Rule ll(c)(l)(A). Is this a good idea? Justice Scalia thought it was not and dissented from this amendment: "The Rules should be solicitous of the abused (the courts and the opposing party), and not of the abuser. Under the revised Rule, parties will be able to file thoughtless, reckless, and harassing pleadings, secure in the knowledge that they have nothing to lose: If objection is raised, they can retreat without penalty." 146 F.R.D. at 508 (Scalia, J., dissenting from amendments).
*** In Zuk isn't Rule ll(c)(1)(B) the applicable provision? The Advisory Committee Notes say that "[tlhe power of the court to act on its own initiative is retained, but with the condition that this be done through a show cause order. * * * Since show cause orders will ordinarily be issued only in situations akin to a contempt of court, the rule does not provide a 'safe harbor.' " 146 F.R.D. at 591-92. [Zuk Fn. 3]
The courts have generally been vigorous in applying the safe harbor requirement. For example, in Ridder v. City of Springfield, 109 F.3d 288 (6th Cir.1997), the district court granted summary judgment to defendants when plaintiff could not come up with any evidence supporting his allegations the city had engaged in an illegal custom or practice in a case that required such proof. A month after that motion was granted, the city moved for Rule 11 sanctions. Treating the safe harbor provision as an "absolute requirement," the appellate court held that the city had lost the opportunity to move for sanctions by waiting until after summary judgment was granted to serve its motion because plaintiff's counsel might have withdrawn the claims if warned of the sanctions possibility. "A party seeking sanctions must leave sufficient opportunity for the opposing party to choose whether to withdraw or cure the offense voluntarily before the court disposes of the challenged contention." See also Barber v. Miller, 146 F.3d 707 (9th Cir.1998) (after defendant's motion to dismiss was granted, it was too late for defendant to
[CB-152] serve a sanctions motion because counsel could not then withdraw the claim).
[CB-152] 7. Other grounds for sanctions: Besides Rule 11 and 28 U.S.C.A. § 1927, the Supreme Court held in Chambers v. NASCO, Inc., 501 U.S. 32, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991), that federal courts have "inherent power" to sanction a litigant for bad-faith conduct that has not been displaced by the more specific provisions of Rule 11 and § 1927, but said that this power should be used rarely. "The imposition of sanctions using inherent powers must be accompanied by a specific finding of bad faith." Goldin v. Bartholow, 166 F.3d 710, 722 (5th Cir.1999).
(a) Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of attorney or party.
(b) Representations to Court. By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, ***
(1) it 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;
(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;
(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; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c) Sanctions. If, after notice and a reasonable opportunity to respond, the court determines that subdivision (b) has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision (b) or are responsible for the violation.
FRCP 11(c)(1) How Initiated.
(A) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision (b). It shall be served ***, but shall not be filed with or presented to the court unless, [Safe Harbor] within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected. If warranted, the court may ***.
FRCP 11(c)(2) Monetary vs. Non-Monetary Sanctions
(2) Nature of Sanction; Limitations. A sanction *** shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. *** the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion ***, an order directing payment to the movant of some or all of the reasonable attorneys' fees and other expenses incurred as a direct result of the violation.
(B) Monetary sanctions may not be awarded on the court's initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.
(d) Inapplicability to Discovery. Subdivisions (a) through (c) of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37.
[In my Jones v. Clinton hypo, note that we need to cross-reference Rule 37. Rule 37 also includes a good listing of non-monetary sanctions.]
Consider that the "Safe Harbor" amendment to Rule 11 precludes the imposition of sanctions upon a party that voluntarily dismisses as a matter of right. FRCP 11(c)(1)(A).
I mentioned Camacho v. Mancuso, 53 F3d 48 (4th Cir. 1993) as an example of an extreme case in which Rule 41(a)(1) was strictly construed.
Harvey Honore Construction v. Louisiana Associated Contractors, 1996 US Dist. LEXIS 16335 (Oct. 26, 1996), the court rejected attempts to impose sanctions: (1) Pursuant to Rule 11, because of the Safe Harbor provision; and (2) pursuant to 28 USC 1927; and (3) pursuant to the inherent power of the court to impose sanctions.
Consider, however, that if the party takes their ONE chance to re-file, costs may be recoverable pursuant to Rule 41(d), as Ms. McGuigan reminded me. Note, by the way, that the rule allows for costs immediately upon filing, and prior to resolution on the merits, winning, contrary to what I said in class, is not an element. (Proof that we all need to read the rules again, and again!)
4. Legal Sufficiency of Claims, Mitchell v. Archibald & Kendall, Inc., FRCP 12(b)(6), 12(b), final sentence, 15(a), 56, review Conley v. Gibson, FRCP 11, 8, 144-50
FRCP 12(b)(6), FRCP 12(b), final sentence, FRCP 56, FRCP 15(a). Consider this case together with Rule 11, Rule 8 and Conley v. Gibson.
(a) Amendments. A party may amend the party's pleading  once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise a party may amend the party's pleading  only by leave of court or  by written consent of the adverse party; and leave shall be freely given when justice so requires. ***
The major legal question presented in this diversity [See 28 USC sec. 1332] case is whether the owner or occupier of land has a duty of reasonably guarding an invitee against criminal attacks that take place beyond the boundaries of his premises and on a public thoroughfare.
liability of a landowner to an invitee for criminal acts is generally limited
 to criminal acts occurring on the premises and still other cases recognizing
 an occupier's duty to protect invitees beyond the boundaries of the premises by providing means of ingress and egress reasonably free from hazardous physical conditions, the district court judge asserted: ...
Mitchell v. A & K, Inc., CB-145 (The Allegations)
 A&K's duty to exercise ordinary care to maintain its premises and the adjacent areas in a reasonably safe condition so as to avoid leading Mitchell into a dangerous and perilous risk of injury by the criminal conduct of third persons of which A&K was aware.
 ... the duty to exercise reasonable care to provide a reasonably safe means of ingress and egress, both within the confines of the premises owned and controlled by A&K and beyond the precise boundaries of such premises.
 A&K owed the Mitchells the duty to exercise reasonable care to protect them from criminal acts of third persons while on A&K's premises and beyond the precise boundaries of such premises and to provide a reasonably sufficient number of servants or employees to afford reasonable protection to invitees.
 A&K owed Mitchell the duty to give adequate and timely notice and warning of latent or concealed perils which were known to A&K but not to the Mitchells.
 Finally, ... to keep its premises and the immediate adjacent area reasonably well policed and to exercise reasonable care to see that its invitees were protected from injury from criminal acts of third persons and to take reasonable steps to prevent injury to invitees.
Mitchell v. A & K, Inc., CB-146 (Rule 12 Standard)
Where the pleadings raise a contested issue of material fact, a Rule 12(b)(6) motion must be denied. In reviewing the grant of a motion to dismiss a complaint for failure to state a claim, it is elementary that all material facts well pleaded in the complaint must be taken as true. However, the court is required to accept only well-pleaded facts as true in deciding whether the motion to dismiss was properly granted and is not required to accept legal conclusions that may be alleged or that may be drawn from the pleaded facts.
Mitchell v. A & K, Inc., CB-146 (bottom)
under Rule 15(a), Fed.R.Civ.P., as construed by this court, the plaintiffs would have had an absolute right to file an amended complaint embodying the claimed theory that a public street was part of the defendant's premises.
The bonehead play of the year.
[BUT THEN] The court concluded that "it is clear that A & K had no duty to the Mitchells," and affirmed the dismissal. So we are talking about avoiding Rule 11 sanctions but only delaying dismissal.
III. Pleading (continued)
5. Heightened Requirement of Specificity
a. [Session 13-Monday, February 2, 1999] Ross v. AH Robbins, FRCP 9(b) & , 8(a), 8(a)(2), 150-57
b. [Session 14-Tuesday, February 3, 1999]Cash Energy v. Weiner, Leatherman v. Tarrant, 157-70
6. [Session 15-Wednesday, February 4, 1999] Pre-Answer Motions, Rule 12 Exercises, FRCP 7(a), 12(a), 12(b), 12(g), 12(h), 15(a), 170-72
7. [Session 16-Thursday, February 5, 1999] Failure to Answer: Default, Shepard Claims v. William Darrah & Associates, FRCP 4(e),