Ancient writ system
- Each substantive claim had an associated procedural form and writ
- Highly technical pleading Requirements
- Failure to use “magic words” could result in dismissal
- Field Code (NY): 1848
- Many other states adopted versions of the Field Code
- Common form of action for all claims (trans-substantivity)
- Still requires detailed factual pleading
Federal Rules of Civil Procedure
- Adopted in 1938, pursuant to Rules Enabling Act
- Previously, federal courts followed state procedure
- 35 states have adopted versions of FRCP
- Exceptions include CA, IL, NY, PA
Allocate different functions to different steps:
- Pleadings: provide notice of claims & defenses
- Requires less factual detail than Code pleading
- Emphasize substance over form
- Rule 11 & Rule 12(b): weed out baseless claims
- Discovery: develop facts
- Summary judgment: narrow factual issues
Pleading Under the FRCP
- Answer to counterclaim
- Answer to crossclaim
- Third-party complaint
- Answer to third-party complaint
- Reply to answer, only if court orders
Format of Pleadings
See FRCP Appendix of Forms
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
(b) Fraud or Mistake; Conditions of Mind. In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person’s mind may be alleged generally.
But consider implications of Twombly/Iqbal:
- Factual allegations must plausibly support an inference of malice, intent, etc.
FRCP Form 11: Complaint for Negligence
(Statement of Jurisdiction — See Form 7.)
On (DATE), at (PLACE), the defendant negligently drove a motor vehicle against the plaintiff.
As a result, the plaintiff was physically injured, lost wages or income, suffered physical and mental pain, and incurred medical expenses of $_____.
Therefore, the plaintiff demands judgment against the defendant for $_____ , plus costs.
Compare code pleading:
- “In an action or defense based upon negligence, it is not sufficient to allege the mere happening of an event of an injurious nature and call it negligence on the part of the party sough to be charged. This is necessarily so because negligence is not a fact in itself, but is the legal result of certain facts. 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.” Gillespie v. Goodyear Svc. Stores, 258 N.C. 487 (1963) (emphasis added), quoting Shives v. Sample, 238 N.C. 724 (1953).
- N.B. The current NC Rules of Civil Procedure follow the FRCP model. Gillespie pre-dates the adoption of these rules.
Challenging the Sufficiency of a Complaint
Motion to Dismiss for Failure to State a Claim
- Failure to state a claim upon which relief can be granted
- Challenges sufficiency of complaint under Rule 8
Meaning of Insufficiency: Even if everything in the complaint is true, the plaintiff does not show an entitlement to relief.
This may be true for two reasons:
- No such claim
- Example: Plaintiff sues for “Offensive Bad Taste in Music”.
- Insufficient allegations to support claim
- Example: Plaintiff sues for negligence, but fails to allege any injury.
Bell Atlantic v. Twombly (US 2007)
- Sherman Act, § 1: “Every contract, combination … , or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.”
- Critical element: Agreement
- Mere “parallel conduct” not sufficient for liability
- This is a matter of substantive antitrust law
- Court assumes truth of allegations re: common pricing, no geographic competition
- But court treats allegation that defendants acted pursuant to an agreement as conclusory
- Plaintiffs merely recite the element, without alleging facts about agreement
- Why isn’t this sufficient?
- Plaintiffs are relying on parallel conduct to raise an inference of an agreement; the implicit assertion is that the parallel conduct must have resulted from an agreement, rather than independent decisions by each defendant.
- Majority says the inference of an agreement isn’t sufficiently plausible given only parallel conduct.
- Alternative explanation: market efficiency.
- What more should the plaintiffs have done to satisfy the Court?
- They don’t necessarily have to allege detailed facts about the agreement (who, what, where, when).
- Heightened pleading standard for fraud under Rule 9 doesn’t apply.
- But they must allege enough to suggest that an agreement (as opposed to lawful parallel conduct) is a plausible inference.
- Does that place an unreasonable burden on plaintiffs in cases this this, where the relevant facts aren’t readily observable or disclosed?
- What could the plaintiffs realistically have alleged?
- What concerns motivate the majority
- Burden on defendant in having to answer and defend suits
- Are these valid concerns in the context of the FRCP?
- Rule 8(a) is supposed to require only notice of the claim, saving proof for discovery.
- Rule 11 subjects parties to sanctions for alleging facts or asserting claims without a reasonable foundation.
Ashcroft v. Iqbal (US 2009)
- Deprivation of federal civil rights by Attorney General & FBI Director
- “Constitutional tort” under federal common law
- High-ranking government officials are liable only for their own unconstitutional actions. No respondeat superior liability
- In this case, plaintiffs must plead & prove the Attorney General & FBI Director adopted the detention policy for the purpose of discrimination on unconstitutional grounds (race, religion, national origin).
- “Disparate impact” is not enough.
- Factual allegations v. legal conclusions
- Court assumes truth of factual allegations about who was detained and how they were treated.
- But court disregards, as legal conclusion, allegation of discriminatory motive.
- Plausibility of inference
- Absent direct evidence of discriminatory purpose, plaintiffs rely on factual allegations about detention to raise inference.
- Majority: The factual “allegations are consistent with with [defendants] purposefully designating detainees ‘of high interest’ because of their race, religion, or national origin. But given more likely explanations, they do not plausibly establish this purpose.”
- Majority distinguishes between constitutionality of plaintiff’s arrest and constitutionality of the policy for classifying detainees as “high interest”.
- Plaintiff’s claim against Attorney General & FBI Director went only to the policy, not the arrest itself.
- Allegation that defendants “adopt[ed] a policy approving ‘restrictive conditions of confinement’ for post-Sepember 11 detainees until they were ‘cleard by the FBI’” is insufficient to plausibly support inference that they did so because of detainees’ “race, religion, or national origin.”
- “All it plausibly suggests is that the Nation’s top law enforcement officers … sought to keep suspected terrorists in the most secure consitions available until the suspects could be cleared of terrorist activity.”
Making Sense of Twombly/Iqbal
Steps to analysis
- Assume truth of all (non-conclusory) factual Allegations
- Ignore allegations that are mere legal conclusions
- Treat these as “inferences” that must be plausible based on the factual allegations
- Assess whether the factual allegations plausibly suggest an entitlement to relief
- i.e., if the factual allegations themselves are not sufficient on their face to satisfy the elements of the claim, do those allegations plausibly support an inference?
- Consider plaintiff’s inference(s) against alternative explanations.
Meaning of “Plausibly”
- Legal Plausibility
- Do the facts alleged plausibly satisfy the elements of the claim?
- Court considers “obvious alternative explanation”.
- Shouldn’t weigh competing explanations at pleadings stage; that’s for discovery and summary judgment.
- Not factual plausibility
- The Court in both cases disclaims this meaning of “plausible”
- Discredit factual allegation only if facially incredible (e.g. “little green men”)
- At dismissal stage, not supposed to weigh likelihood that plaintiff will prove its allegations
- Isn’t that what the majority is really doing with “more likely explanations”?
Plausibility & Inferences
Inference: Additional fact(s) or conclusion(s) drawn from factual allegations in the complaint
- Twombly: Plaintiffs relied on factual allegations about defendants’ common pricing and lack of geographic competition to establish an inference that they acted pursuant to an agreement.
- Iqbal: Plaintiff relief on factual allegations about detention based on religious/national origin profile to establish an inference that the Attorney General & FBI Director adopted the detention policy with the intent to discriminate on the basis of religion/national origin.
- In each case, the majority concluded that the inference was not sufficiently plausible.
- Too great a leap from the factual allegations to the inference, where the factual allegations are at least equally consistent with some other (innocent) explanation
- Twombly: conduct resulted from market efficiency.
- Iqbal: detention policy was based on law enforcement information about likely suspects and witnesses in the 9/11 attacks.
FRCP Form 11: Complaint for negligence
On (DATE) at (PLACE), the defendant negligently drove a motor vehicle against the plaintiff.
Is negligence a plausible inference from the fact that defendant drove vehicle into plaintiff?
(b) Defenses; Admissions and Denials.
(1) In General. In responding to a pleading, a party must:
(A) state in short and plain terms its defenses to each claim asserted against it; and
(B) admit or deny the allegations asserted against it by an opposing party.
(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.
(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.
(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.
(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.
(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.
Reis Robotics, USA, Inc. v. Concept Industries, Inc. (N.D. Ill. 2006)
- “To the extent the alleged ‘contract’ … failed to warrant [quality of goods], it was procured by fraud and was of no validity; accordingly, the remaining allegations in this paragraph are denied as true”
- This is “equivocal and serves to confuse the issues that are in dispute”.
Zielinski v. Philadelphia Piers, Inc. (E.D. Pa. 1956)
Facts & Procedural History
Holding & Analysis
- General denial in Answer was ineffective, where PPI admitted ownership of the fork lift.
- As a result of ineffective denial, and failure to correct it for over two years, PPI is deemed to have admitted both that it owned the fork lift (which was actually true) and that the operator was employed by and working for PPI at the time of the accident (which was not actually true).
- Court assusmed there was no bad faith, but concluded that “principles of equity require that defendant be estopped from denying agency because, otherwise, its inaccurate statements and statements in the record, which it knew (or had the means of knowing within its control) were inaccurate, will have deprived plaintiff of his right of action.”
- If defendant had answered properly, plaintiff could have sued CCI instead.
- N.B. Under FRCP Rule 15(c)(1)(C), plaintiff might still be able to amend the complaint to substitute CCI for PPI as the defendant.
- CCI had knowledge of the suit within the requisite time.
- But this case pre-dates the addition of Rule 15(c)(1)(C), so that wasn’t an option.
- Court notes that PPI and CCI are both insured by same company, which will pay any judgment in any event, so there’s no real prejudice in requiring PPI to proceed as defendant.
(c) Affirmative Defenses.
(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense …
- Rule 8(b) lists commmon affirmative defenses
- The applicable (state or federal) law may recognize others
- Affirmative defenses may be waived if not raised with answer
- Defendant may be able to amend the answer to add affirmative defenses
- Substance over form
- Mistaken designation of defense as counterclaim (or vice versa) is ok
Twombly/Iqbal and Answers/Defenses
Majority view: Twombly/Iqbal does not apply to answers/defenses
Amending as a Matter of Course
Party may amend, without consent of opposing party or court, one time
Only allowed one time.
Must be within 21 days of:
- service of the pleading to be amended, or
- service of a responsive pleading or Rule 12(b)/(e)/(f) motion, if pleading to be amended requires a response
Note that the time limit for amending under Rule 15(a)(1) depends on whether the pleading to be amended is one that requires a response under the FRCP.
- A complaint always requires a response (either an Answer or a Motion under Rule 12)
- An answer does not require a response, unless it also asserts a counterclaim, crossclaim, or third-party claim.
If the pleading requires a response, the 21 day clock does not start running until the response is served.
Example 1: Plaintiff files & serves a complaint on September 1. Plaintiff may amend the complaint, as a matter of course, at any time before Defendant serves an answer or motion under Rule 12(b), (e), or (f), even if more than 21 days have passed since Plaintiff served the complaint.
- Note that this use up the one-time amendment as a matter of course, so any further amendment will require either the defendant’s consent or leave of the court.
A defendant must normally serve an answer or motion within 21 days from service of the complaint. Rule 12(a)(1)(A)(i).
- But if the defendant agrees to waive formal service, the deadline is 60 days (90 days if the defendant is outside the US) after the request for waiver.
- Parties may also agree to additional time.
Example 2: Plaintiff files & serves a complaint on September 1. Defendant files an answer or motion under Rule 12(b), (e), or (f) on September 5. Plaintiff has until September 26 to amend the complaint as a matter of course. Rule 15(a)(1)(B).
Example 3: Plaintiff files & serves a complaint on September 1. Defendant files an answer or motion under Rule 12(b), (e), or (f) on September 5. Defendant has until September 26 to amend the complaint as a matter of course. Rule 15(a)(1)(A).
Amendment by Leave of Court
Subsequent amendments, or any amendent after the 21 day time limit, requires either
- Consent of opposing party, or
- Leave of court: “freely give[n] when justice so requires”
Party opposing amendment must show:
- Bad faith, or
Shiflet v. Allstate Ins. Co. (D.S.C. 2006)
Facts & Procedural History
- Plaintiff sued defendant for breach of contract & bad faith over denial of insurance claim
- Defendant filed an answer denying liability.
- Defendant then sought leave to amend answer to include defense of arson.
- Plaintiff opposed on grounds that amendment was prejudicial, in bad faith, and futile.
Analysis & Holding
- Mere delay is not sufficient reason to deny leave to amend, absent showing of prejudice, bad faith, or futility.
- No prejudice by undue delay
- Defendant filed motion for leave to amend within time allotted by court’s scheduling order, and with more than three months remaining for discovery,
- Discovery revealed new information, previously unavailable, that suggested arson.
- Proposed amendment not futile
- Arson provides complete defense to plaintiff’s claims.
- Amendment is futile only if “clearly insufficient or frivolous on its face”
Beeck v. Aquaslide ‘n’ Dive Corp.
Facts & Procedural History
- Plaintiff was injured on a swimming pool slide and sued the manufacturer.
- In its answer, Defendant admitted that it manufactured the slide.
- After further investigation, the Defendant concluded it had not really manufactured the slide.
- Defendant moved to amend its answer to deny manufacture.
- Court granted leave to amend.
- Case went to trial on the issue of whether defendant manufactured the slide.
- Jury found for defendant on that issue and court entered judgment in favor of defendant.
- Burden is on party opposing amendment
- Will amendment “sound the ‘death knell’” to plaintiff’s claim?
- Can plaintiff proceed against other (proper) parties?
- Co-defendants are still in the case
- How much does this influence the court’s decision?
- Can plaintiff amend to name real manufacturer?
- Relation back would probably not be allowed under Rule 15(c)(1)(C).
- But, if real manufacturer fraudulently labelled the product with the defendant’s name, equitable tolling might extend the statute of limitations.
- No prejudice to plaintiff where “the amendment would merely allow the defendant to contest a disputed factual issue at trial”.
- Denial of leave to amend would prejudice defendant.
- They shouldn’t be stuck admitting a disputed fact, where their initial mistake was reasonable.
Relation back allows an amendment to assert a claim for which the limitations period expired after the original complaint was filed.
- Treat the new claim as if it had been included in the original complaint, for purposes of statute of limitations.
- Relation back allowed if permitted under the law providing the applicable statute of limitations.
- You’d look to the substantive law for this.
- Relation back allowed if amended pleading asserts claim or defense arising out of same conduct, transaction, or occurrence set out in original pleading.
- Justification: Opposing party is already on notice.
Same Conduct, Transaction, or Occurrence
Blandings hires Simms to design & build a new house. Alleging that the house collapsed because Simms used shoddy materials, Blandings sues for breach of contract. A few weeks later, Blandings seeks to amend to add a claim for negligence. The limitations period for the negligence claim expired the day after the original complaint was filed.
- Amended complaint should relate back, because it arises out of the same conduct (the construction of the house) as the original breach of contract claim.
Moore v. Baker (11th Cir. 1993)
Facts & Procedural History
- Moore sued Baker for failure to advise her of therapy as alternative to surgery.
- Trial court granted summary judgment for Dr. on that claim.
- Moore sought leave to amend to add claim for negligence in performance of surgery.
- Statute of limitations ran out on day original complaint was filed.
- Malpractice claim, arising from performance of surgery, does not relate back to original complaint, which stated claim arising from conduct in consultation before the surgery.
- Turns on how broadly to construe “conduct, transaction, or occurrence”.
- Plaintiff’s argument: Course of treatment is a single CTO.
- Defendant’s argument: Consultation & surgery are separate CTOs.
- Court accepts defendant’s view, focusing on whether original complaint, based on conduct before surgery, put defendant on notice of potential claims for negligence during & after surgery.
- Claims require proof of “completely different facts”.
Mottley sues R.R. for breach of contract, based on R.R.’s failure to honor lifetime free pass. R.R. moves for summary judgment, arguing the contract is void based on federal statute prohibiting free passes. Mottley seeks to amend, asserting claim that R.R. fraudulently induced Mottley to accept free pass in settlement of personal injury claim, knowing it would be void.
- Mottley’s best argument: Fraud claim and breach of contract claim both involve the same contract, and both claims turn on the same issue of whether the pass is void under federal law.
- R.R.’s best argument: The two claims are arise out of different acts at different times, and breach of contract claim (which assumes the pass was valid) did not put R.R. on notice that Mottley would contend the pass was void.
Change of party or naming of party
Relation back is permitted if, within period for service under Rule 4(m), newly-added or newly-named party:
- received such notice of the action that it will not be prejudiced in defending on the merits; and
- knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party’s identity
Mistake Concerning Party’s Identity
Worthngton v. Wilson (7th Cir. 1993)
Facts & Procedural History
- Plaintiff brought federal civil rights suit under 42 U.S.C. § 1983 over alleged excessive use of force by police officers in the course of an arrest.
- Because plaintiff did not know the names of the arresting officers, the complaint named “three unknown named police officers” as defendants.
- Plaintiff subsequently filed an amended complaint substituting two officers, Wilson & Wall, for the “unknown named police officers”.
- Wilson & Wall moved to dismiss the complaint based on the statute of limitations, which had expired the day after the original complaint was filed.
- Worthington argued that the amended complaint related back to the original date of filing.
Holding & Analysis
- Relation back not allowed because requirements under Rule 15(c)(1)(C) were not satisfied.
- Wilson & Wall did have notice of the action within the requsite time. Rule 15(c)(1)(C)(i)
- But plaintiffs failure to name Wilson & Wall as defendants in the original complaint did not result from a mistake concerning the defendants’ identity.
- Court distinguishes plaintiff’s lack of knowledge as to defendant’s identify from a mistake concerning that identity.
- What might plaintiff have done to avoid this problem?
- Pre-complaint investigation to ascertain names of arresting officers
- Get copy of arrest report; ask city attorney or police department; interview witnesses.
- Query whether court would have decided differently if plaintiff had shown he made reasonable efforts to identify the officers before filing.
- Might have argument for equitable tolling of Statute of Limitations if the defendants and/or city attorney improperly impeded plaintiff from identifyin the arresting officers.
- Could plaintiff just name every officer in the police department, and then later amend to dismiss those who were not involved?
- Rule 11: Plaintiff must have foundation for alleging the named officers were involved.
“John Doe” defendants
- Majority of courts have likewise held that lack of knowledge is not a mistake for purposes of Rule 15(c)(1)(C)(ii).
- Majority of courts have also held that identifying defendants as “John/Jane Doe” (instead of “unknown”) does not satisfy the mistake requirement (because the plaintiff didn’t mistakenly think the defendant’s name was “John/Jane Doe”).
Palacio v. City of Springfield, (D. Mass 2014)
Facts & Procedural History
- Plaintiffs brought federal civil rights suit under 42 U.S.C. § 1983 against city and police officers who entered and searched their home without a warrant.
- Plaintiffs didn’t know the names of the police officers, so they named them as “John Doe” defendants.
- After discovering the names of the officers, plaintiffs sought leave to amend to name them as defendants in place of the “John Does”.
- Defendants objected on the grounds that the statute of limitations had passed and that plaintiffs did not satisfy the requirements for relation back under Rule 15(c)(1)(C)
Holding & Analysis
- Court discusses cases (including Worthington v. Wilson) holding that lack of knowledge of a defendant’s identity does not satisfy the “mistake” requirement of Rule 15(c)(1)(C)
- Court notes criticism of those decisions, citing Singletary v. Pennsylvania Dep’t of Corrections, 266 F.3d 186 (3d Cir.2001) and Varlack v. SWC Caribbean, Inc., 550 F.2d 171, 175 (3d Cir.1977) cases taking a contrary view.
- Court holds that, even if amendment would not be allowed under Rule 15(c)(1)(C), it is allowed under Rule 15(c)(1)(A)
- Under Rule 15(c)(1)(A), an amended pleading relates back when “the law that provides the applicable statute of limitations allows relation back;”
- In civil rights claims under § 1983, federal law borrows the statute of limitations for personal injuries under state law.
- Massachusetts law allowed for relation back in this situation, even if Rule 15(c)(1)(C) would not.
Krupski v. Costa Crociere, S.P.A. (US 2010)
Facts & Procedural History
- Plaintiff sued Costa Cruise Lines for injury on a cruise ship
- Costa Cruise Lines moved for summary judgment, asserting it was not the proper defendant.
- Plaintiff sought leave to amend to name Costa Crociere as defendant instead.
- Trial court granted motion.
- Costa Crociere moved to dismiss based on one-year limitations period.
- Plaintiff argued amended complaint should relate back to date of original filing.
- Whether relation back under Rule 15(c)(1)(C)(ii) was proper where plaintiff knew or should have known that Costa Crociere existed but sued Costa Cruise Lines instead.
- Rule 15(c)(1)(C)(ii) applies to “mistake concerning the proper party’s identity”.
- “Mistake” is not precluded where plaintiff knew of proper defendant’s existence.
- Plaintiff might still be mistaken as to which entity was liable.
- Does Krupski alter the result in Worthington?
- Court in Krupski cites a dicitionary definition of “mistake” that includes “a wrong action or statement proceeding from faulty judgment, inadequate knowledge, or inattention.”
- But Supreme Court didn’t directly address the “lack of knowledge” question
Good Faith in Pleadings
FRCP Rule 11(a)
- Signature required for “every pleading, written motion, and other paper”
- Does not apply to discovery
- Discovery requests and responses are not submitted to the court
- Discovery requests and responses are covered under Rule 26(g)
Representations to the Court
- No improper purpose
- increase cost
- Claims and defenses warranted by law
- existing law, or non-frivolous argument for extension, modification, reversal
- Factual allegations supported by evidence
- or likely to be supported after investigation and discovery
- Factual denials warranted on evidence or reasonably based on belief or lack of information
- Objective standard: “Reasonable lawyer”
- Requires “reasonable inquiry” before filing
Cf. Model Rules of Professional Conduct Rule 3.1 (“Meritorious Claims and Contentions”)
Imposition of sanctions
- Rule 11(c)(2): on motion
- Rule 11(c)(3): on court’s own initiative
Nature of sanction: Rule 11(c)(4) & (5)
- May be monetary or non-monetary
- “limited to what sufficed to deter repetition of the conduct or comparable conduct by others similarly situated”
- No monetary sanction against represented party for violation of Rule 11(b)(2)
- Because client is entitled to rely on lawyer’s expertise and judgment as to the law
- No sua sponte sanctions unless court makes show-cause order “before voluntary dismissal or settlement”
Factual & Legal Foundation
In re Kunstler (4th Cir. 1990)
Facts & Procedural History
- Plaintiffs sued state and local government officials under 42 U.S.C. § 1983 alleging violations of their 1st and 6th Amendment rights.
- The trial court imposed sanctions on the grounds that the claims were not well grounded in fact or law and that the attorneys pursued the claims for an improper purpose.
Holding & Analysis
- Rule 11 sanctions were justified on three grounds:
- “[T]he complaint was not well grounded in fact”
- The complaint contained “numerous misstatements of fact” and “allegations which utterly lacked any basis in fact”.
- “While a lawyer may rely on discovery to reveal additional facts to support claims which are well grounded in fact, Rule 11 sanctions are appropriate when a lawyer attempts to use discovery to support outrageous and frivolous claims for which there is no factual support.”
- Rule 11 has been amended, both substantively and stylistically, since this case. Would the outcome be different under the current Rule 11(b)(3): “the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery”?
- “[T]he complaint was not well grounded in law”
- The claims were not supported by controlling precedent.
- “[T]he [attorneys’] improper purpose in filing the complaint”
- “[I]f a complaint is filed to vindicate rights in court, and also for some other purpose, a court should not sanction counsel for an intention that the court does not approve, so long as the added purpose is not undertaken in bad faith and is not so excessive as to eliminate a proper purpose.”
- But, “[f]iling of excessive motions may sometimes constitute “harassment” under the rule even if the motions are well grounded.”
- “Likewise, filing a motion or pleading without a sincere intent to pursue it will garner sanctions.”
- The trial court found that “plaintiffs’ counsel never intended to litigate this § 1983 action and that counsel filed it for publicity, to embarrass state and county officials, to use as leverage in criminal proceedings, to obtain discovery for use in criminal proceedings, and to intimidate those involved in the prosecution of Hatcher and Jacobs.”
- The Court of Appeals held that this conclusion “is not clearly errorneous and is supported by facts such as the baseless allegations made, appellants’ legal experience, and the cumulative nature of the evidence”.
- “[T]he size of the sanction required the district court to allow sanctioned counsel an opportunity to respond.”
- The Court of Appeals remanded with directions for the trial court to reassess the amount of the sanction.
- The imposition of additional sanctions of $10,000 against each attorney for their “pains to publicize the allegations through the media” was improper.
- Rule 11 applies “only to a ‘pleading, motion, or other paper.’”
- “[I]t clearly does not reach conduct outside of the judicial process.”
Turton v. Virginia Dept. of Educ. (E.D. Va. 2015)
Facts & Procedural History
- Plaintiff sued school districts for discrimination under federal law
- Plaintiff also asserted state law tort claims against school district attorney
- After court dismissed complaint, attorney moved for Rule 11 sanctions, arguing claims against him
- lacked a legal basis
- lacked a factual basis
- were filed for an improper purpose
Defendant’s Arguments & Court’s Ruling
- No legal basis
- Argument: Court lacked subject-matter jurisdiction over state law claims
- Court: Based on precedent, plaintiff’s lawyer could reasonably have believed court had subject matter jurisdiction over state law claims
- Argument: Plaintiff failed to exhaust administrative remedies
- Court: Plaintiff’s lawyer identified no legal authority to support application of futility exception to administrative exhaustion requirement
- Argument: No legal support for claim for breach of duty based on special relationship
- Court: Settled Virginia law established that school district attorney owed no duty to any third party, and plaintiff’s lawyer did not appear to have performed any legal research on the issue.
- No factual basis
- Argument: Complaint did not offer sufficient factual basis for claims
- Court: Reasonable investigation would have revealed that defendant was not attorney for certain schools districts and was not involved in their actions, contrary to allegations in complaint. Failure to conduct reasonable factual investigation violates Rule 11.
- Improper purpose
- Argument: Plaintiff’s “primary motives were to gain publicity, and to embarrass teachers, principals, and state and county officials.” Relies on public statements by plaintiff’s counsel “We took a chance because there was not a lot of case law … but something had to be done to wake up the defendants and get the information out there.”
- Court: No indication that plaintiff never intended to litigate (distinguishing Kunstler). But willful filing of baseless complaint supports inference that suit was improperly filed for a purpose other than to vindicate legal rights.
Good Faith Arguments for Change in Law
Hunter v. Earthgrains Co. Bakery (4th Cir. 2002)
Facts & Procedural History
- Attorney filed Title VII claims on behalf of bakery workers
- Employer argued claims were subject to mandatory arbitration under CBA
- Trial court granted summary judgment and imposed Rule 11 sanctions
- Whether attorney had a good faith argument for challenging the 4th Circuit’s prior decision in Owens-Brockway Glass Container, holding CBA applied to Title VII claims?
- Appellate court review for abuse of discretion
- Purpose of Rule 11 sanctions
- Deter future litigation abuse
- Claim is frivolous under Rule 11 only where it has “absolutely no chance of success under the existing precedent”
- This was not the case here
- 4th Circuit’s decision in Owens-Brockway was contrary to decisions of other circuits to have considered the issue
- N.B. Trial court issued its decision imposing sanctions after the Supreme Court issued its decision in Wright v. Universal Maritime Svcs Corp. (1998), which adopted the position that Hunter advanced in support of her claims.
- But even if the Supreme Court had ultimately decided the issue the other way, the existence of a split among the lower courts would be enough to give plaintiff a good faith argument for their position.
The attorney in this case, Pamela Hunter, was censured by the NC State Bar Grievance Committee in 2010, for her conduct in connection with a medical malpractice case. Matter of Hunter, 10G0295 (2010)
- The Grievance Committee found that Hunter violated Rule 3.1 by filing the suit with “no factual basis”.
- Hunter also violated Rules 1.4 & 1.8 by dropping the suit and personally paying her client $20,000, without explaining the purpose of the payments to the client, who though the case had settled.
Sussman v. Bank of Israel (2d Cir. 1995)
- Plaintiff’s pre-filing communication to defendant, warning of adverse publicity in event of lawsuit, did not support Rule 11 sanctions on grounds of improper purpose, where Complaint was not frivolous
- Not improper for plaintiff with a colorable claim to communicate with defendant before filing suit, in an effort to settle claim
- Not improper for plaintiff to note the effect of potential adverse publicity, where plaintiff has a colorable claim