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CIVIL PROCEDURE CLASS 13. Professor Fischer Columbus School of Law The Catholic University of America Sept. 25, 2002. WRAP-UP OF LAST CLASS . We argued a motion on leave to amend We learned about the rules for relation back under Rule 15(c )(1) & (2)

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  1. CIVIL PROCEDURE CLASS 13 Professor Fischer Columbus School of Law The Catholic University of America Sept. 25, 2002

  2. WRAP-UP OF LAST CLASS • We argued a motion on leave to amend • We learned about the rules for relation back under Rule 15(c )(1) & (2) • Relation back rules apply only where the SOL has run • Before there can be relation back, amendment must be permitted (15(a), (b))

  3. WHAT WILL WE DO TODAY? • Finish up relation back by learning about Rule 15(c ) (3) • Discuss when an attorney, firm or party may be subject to sanctions under FRCP 11 • Discuss, if time permits, Practice Exercise 11

  4. FRCP 15(c) • An amended claim will “relate back” to the filing date of the original pleading where: • 1. The claim or defense in amended pleading arose out of the same “CONDUCT, TRANSACTION, OR OCCURRENCE” as set out in the original pleading 15(c ) (2) • 2. OR The APPLICABLE LAW ON THE STATUTE OF LIMITATIONS allows relation back. 15(c ) (1) OR

  5. FRCP 15(c) • 3. OR If you are amending to add NEW PARTIES or CHANGING NAME OF PARTY, (1)) or (2) above applies AND it is not unfair to relate back because the special conditions in 15 (c ) (3) apply. • DON’T FORGET THAT GENERAL RULES FOR AMENDMENTS in 15(a) or (b) STILL APPLY!

  6. FRCP 15(c ) (3): Amendment Changing Parties in Complaint Will Relate Back If: • Within the 120 day service deadline period under 4(m), the party to be added: • 1. Has notice of the action and will not be prejudiced in her defense; AND • 2. Knew or should have known that the action would have been brought against her if there had not been a mistake; • AND 3. 15( c) (2) applies.

  7. Carpenter v. Dee • How would 15(c )(3), if applicable, apply here? • Is the Massachusetts rule 15 too lenient with regard to amendments joining new parties?

  8. CASE LAW ON RELATION BACK - Worthington v. Wilson • Why did the trial court find that relation back did not apply? • How did the appellate court rule on this issue? Describe the reasoning of the 7th Circuit.

  9. A Comparison of federal and state law on relation back - MA • In Christopher v. Duffy, the applicable procedural rule was Mass. R. Civ. P. 15. • How does this differ, if at all, from FRCP 15 (c )? • What difference would it have made to Christopher v. Duffy if FRCP 15 ( c) applied? • Which is a better rule, in your opinion? Why or why not?

  10. A RELATION BACK HYPO • Erik is angry about a statement made by Professor Fischer in a class hypothetical on 8/27/01 He files a libel action in federal court for the District of Maryland on 9/12/01 naming “Marianne” Fischer as D in his complaint. Erik serves the complaint by personal service on Professor Fischer at the law school on 9/15/01. Assume the statute of limitations is 1 year. Erik learns that Professor Fischer’s first name is not “Marianne” but “Susanna”. On 9/18/02 Erik moves to amend his complaint to change the defendant’s name to “Susanna”. The trial judge concludes that the relation back doctrine does not apply and dismisses the amended complaint.

  11. 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?

  12. TIME LIMITS FOR RESPONDING TO AMENDED PLEADINGS • How long does a party have to respond to an amended pleading? • What is the governing FRCP?

  13. TIME LIMITS FOR RESPONDING TO AMENDED PLEADINGS • How long does a party have to respond to an amended pleading? Either time remaining to respond to original pleading or within 10 days after service of amended pleading, whichever is the longer • What is the governing FRCP? 15(a)

  14. 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

  15. 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)

  16. PURPOSE OF RULE 11 • What is the purpose of Rule 11?

  17. 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

  18. SIGNATURE REQUIREMENTS • What signature requirements are laid down by Rule 11? • What provision of Rule 11 provides for these signature requirements?

  19. 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

  20. FAILURE TO COMPLY WITH FRCP 11(a) • What is the effect of failure to comply with the signature requirements of Rule 11(a)?

  21. 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?

  22. FRCP 11(b) certifications • 4 certifications in 11(b)(1)-(4) • 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.

  23. 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.

  24. 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

  25. 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.

  26. Scope of 11(b) requirements • Does 11(b) requirements relate to a signed intent to sue letter? • See also 11(d) – 11(a)-(c ) 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.

  27. NONCOMPLIANCE WITH 11(b) • What happens if a party or attorney violates any of the certification requirements in 11(b)?

  28. NON-COMPLIANCE WITH FRCP 11(b • FRCP Rule 11(c ) • Attorney, law firm and/or party may be SANCTIONED!

  29. NON-COMPLIANCE WITH FRCP 11(b): SANCTIONS • Sanctions under 11(c ) are discretionary unlike under 11(a ) (SHALL vs. MAY) • A party can move for sanctions. • Can a party move for sanctions against her own attorney? • Can the court sanction sua sponte? • What special rules apply to sanctions motions?

  30. RULES FOR SANCTIONS MOTIONS • You can’t make a sanctions motion with other motions 11(c )(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(c )(1)(A) • SAFE HARBOR RULE

  31. 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?

  32. 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

  33. 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(c )?

  34. 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, striking paper • What limits exist on monetary sanctions under Rule 11(c )?

  35. LIMITS ON MONETARY SANCTIONS • 1. 11(c )(2)(A) Monetary sanctions are unavailable against a REPRESENTED PARTY for violation of subsection 11(b)(2)? • 2. 11 (c )(2) (B) Cannot award monetary sanctions sua sponte if show cause order issued before any voluntary settlement or dismissal • 3. Court consider financial status of a Rule 11 offender • 4. Duty to mitigate - old Rule 11 required this and probably new one does

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