I. Sanctions Cont.

A. Our adversarial system of civil justice is premised on the search for the truth.

Lawyers are expected to act in good faith in the course of litigation and

discovery is expected to be accomplished voluntarily

B. Unfortunately, procedural manipulation designed to frustrate the resolution of

disputes has become a common strategy

C. In order to deter these abuses, Courts may impose sanctions. The Federal Rules

of Civil Procedure have vested courts with the power to impose sanctions for

misconduct. In addition to the Federal Rules of Civil Procedure, various statutes,

as well as the court's inherent power (derived from a judge’s inherent power to

adjudicate) to impose sanction for bad faith conduct, provide a wealth of

authority for the imposition of sanctions.

1. For Example, in Roth, we see 28 U.S.C. 1927 as a source of authority for the

imposition of sanctions on attorneys who multiply “the proceedings in any

case unreasonably and vexatiously”

a) This is what the attorney in Roth had to pay.

II. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the

Court; Sanctions

A. 11(b) Representations to the Court. By presenting to the court a pleading,

written motion, or other paper—whether by signing, filing, submitting, or

later advocating it—an attorney or unrepresented party certifies that to the

best of the person's knowledge, information, and belief, formed after an

inquiry reasonable under the circumstances:

1. 11(b)(1) it is not being presented for any improper purpose, such as to

harass, cause unnecessary delay, or needlessly increase the cost of

litigation;

2. 11(b)(2) the claims, defenses, and other legal contentions are warranted

by existing law or by a nonfrivolous argument for extending, modifying,

or reversing existing law or for establishing new law;

a) 11(b)(2) is an objective standard; it has to be objectively devoid of legal

support, it has to be objectively fanciful. No empty head, pure hearts

arguments.

(1) “At the same time, we don’t want to chill attorney creativity, we don’t

want to prevent arguments for changing existing law.”

(2) The 1993 Advisory Committee notes make it clear that they don’t want

to prevent lawyers from making novel arguments, but they want to

make sure that these arguments are both backed by research and

recognize that they are in contrary to existing law.

(a) The attorney in Naruto recognizes that his argument for expanding

copyright law to cover non-human animals was a novel argument

3. 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; and

a) How do pleadings in the alternative avoid violating 11(b)(3)?

 (1) After all, 11(b)(3) mandates that contentions have factual evidentiary

support and since only one pleading can be true, you cant have

evidentiary support for both.

(2) We see how pleadings in the alternative don’t violate 11(b)(3) in Voices

of America, where the parties write out their recognition of the

inconsistency of the claims. This recognition is critical.

(3) The Plaintiff in Naruto made a similar recognition of their novel

argument that a monkey could be a copyright holder

4. 11(b)(4) the denials of factual contentions are warranted on the evidence

or, if specifically so identified, are reasonably based on belief or a lack

of information.

a) “Inquiry reasonable under the circumstances”; This requirement has led

to the characterization of 11(b)(2),(3) as a Stop and Think provisions by

the advisory committee notes

B. 11(c) Sanctions.

1. 11(c)(1) In General. If, after notice and a reasonable opportunity to

respond, the court determines that Rule 11(b) has been violated, the

court may impose an appropriate sanction on any attorney, law firm, or

party that violated the rule or is responsible for the violation. Absent

exceptional circumstances, a law firm must be held jointly responsible

for a violation committed by its partner, associate, or employee.

 a) “The court may impose an appropriate sanction…if the court determines

that rule 11(b) has been violated” i.e. Rule 11(b) can be violated and no

sanctions be imposed, its entirely up to the court’s discretion.

b) 1983 version of this rule mandated that sanctions be imposed, amended

in 1993 to “may impose”

c) Court can trigger the process by order to show cause

(1) No Monetary sanctions unless order to show cause was issued before

withdrawal of complaint

2. 11(c)(2) Motion for Sanctions. A motion for sanctions must be made

separately from any other motion and must describe the specific

conduct that allegedly violates Rule 11(b). The motion must be served

under Rule 5, but it must not be filed or be presented to the court if the

challenged paper, claim, defense, contention, or denial is withdrawn or

appropriately corrected within 21 days after service or within another

time the court sets. If warranted, the court may award to the prevailing

party the reasonable expenses, including attorney's fees, incurred for

the motion.

a) For Party on Party Sanctions, the movant must make a separate motion

and serve it on the non-moving party. The Non-Moving Party then has 21

days to correct the behavior identified in the sanction. If the behavior is

not corrected by 21 days, the motion gets filed to the court. This is the

Safe Harbor Rule

 b) In Roth, we thus see that the Sanctions were for not curing their behavior;

the refusal to withdraw the case.

c) Additional issues addressed in Roth include the fact that the movant

party served a letter of intent, not a motion on the non-non-moving party.

Thus the 21 Day clock did not start ticking

(1) There is a circuit split on whether the clock starts ticking when the

motion is served or when the non-moving party gets a clear indication

that the sanction is forthcoming, such as in a letter of intent.

d) Additionally, the rule 11 sanctions were filed after the court had dismissed

the case, thus there was no sufficient and meaningful opportunity to cure

as you cannot withdraw a case when a court has already dismissed it.

3. 11(c)(3) On the Court's Initiative. On its own, the court may order an

attorney, law firm, or party to show cause why conduct specifically

described in the order has not violated Rule 11(b).

4. 11(c)(4) Nature of a Sanction. A sanction imposed under this rule must

be limited to what suffices to deter repetition of the conduct or

comparable conduct by others similarly situated. The sanction may

include nonmonetary directives; an order to pay a penalty into court; or,

if imposed on motion and warranted for effective deterrence, an order

directing payment to the movant of part or all of the reasonable

attorney's fees and other expenses directly resulting from the violation.

a) What should the sanction be?

 (1) Determining what the sanction should be requires a discernment of

what the sanction should be. 11(c)(4) outlines that the purpose of

sanctions is deterrence.

(2) Sanctions can also compensate the party affected by the sanctionable

conduct.

(3) The purpose of the sanction affects what the sanction is; if its to

compensate, then the sanction will be attorney’s fees for the episode

in question. If the purpose is to deter, then the sanctions are going to

be non-monetary; striking the pleading, referral to the Bar, CLE

courses, Court Fees, a note in the lawyers file, letter of apology, public

remand etc.

(a) Court can mix and match these sanctions (multiple sanctions) but

can impose sanctions no greater than what suffices to deter

(b) Even attorney’s fees must be imposed only if they are warranted

for effective deterrence. A “last resort” measure.

5. 11(c)(5) Limitations on Monetary Sanctions. The court must not impose

a monetary sanction:

a) 11(c)(5)(A) against a represented party for violating Rule 11(b)(2); or

b) 11(c)(5)(B) on its own, unless it issued the show-cause order

under Rule 11(c)(3) before voluntary dismissal or settlement of the

claims made by or against the party that is, or whose attorneys are,

to be sanctioned.
 (1) The court must not impose monetary sanctions against represented

parties for violating 11(b)(2).

(2) Parties shouldn’t be on the hook for their attorney’s legal errors.

(a) However they can get their pleading dismissed for an 11(b)(2)

violation (Non-Monetary Sanction)

(3) Monetary sanctions can be imposed against parties for 11(b)(3)

violations

(4) Lawyers are expected to know the law, parties are expected to know

the facts

(5) “Excess costs reasonably incurred because of such conduct”, “all

reasonable expenses directly resulting from the violation”; these are

the standards for calculating the attorneys fees and other costs in

sanctioning. But-For causation.

(6) All in all, sanctions are pretty inconsistent and are usually imposed

only in extreme cases or in cases of repeat behavior

6. 11(c)(6) Requirements for an Order. An order imposing a sanction must

describe the sanctioned conduct and explain the basis for the sanction.

a) For Sanctions, the court first determines whether there has been an 11(b)

violation, then the court decides whether it wants to impose a sanction,

and if so, what sanction to impose.

 C. 11(d) Inapplicability to Discovery. This rule does not apply to disclosures

and discovery requests, responses, objections, and motions under

Rules 26 through 37.

III.