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Civil Procedure – Jan. 16 - PowerPoint PPT Presentation

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Civil Procedure – Jan. 16. Rule 11. Announcements. Pick up handout reading on how to draft complaints Get your exam # and put ONLY your exam # on your complaint Bring an extra copy of your complaint to class

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  • Pick up handout reading on how to draft complaints

  • Get your exam # and put ONLY your exam # on your complaint

  • Bring an extra copy of your complaint to class

  • No late submissions accepted; no email submissions accepted (if you won’t be here, get a friend to turn it in for you)


  • Pleadings standard – Rule 8(a). Big ? – did Bell Atlantic create a new test for all claims; for only anti-trust claims? Is that test now: the complaint must contain sufficient factual basis to create a “plausible” claim? Only time will tell (watch for this as you study for the bar exam)

  • Rule 8(e) – alternative pleadings of claims/defenses is permissible within a single complaint or answer

Rule 11 History

  • (At time of ACA litigation) Few courts were imposing R. 11 sanctions. 1976 law review article found only 11 Rule 11 cases from 1938-1976.

  • Pre-1983 version seldom applied because:

  • Not clear exactly what violated the Rule (good faith but subjective)

  • Good ole boys club

  • Type of sanctions not specified

1983 reforms

  • Standard became objective – would a reasonable atty under facts/circum have believed claim well grounded in fact & warranted by existing law (extension)

  • Mandatory payment of opponent’s atty’s fees/sanctions to opponent if successful

  • What do you think happened with this new Rule?

1993 reforms – Current Rule

Investigation that is reasonable under circumstances in terms of facts/law

Safe Harbor Provision

Alternate Sanctions (not just $)

Only expenses to opponent (money usually to court)

Sanctions not mandatory

Baseline Query

  • What is a “show cause” order?

  • How does a “show cause” order potentially arise under Rule 11?

Rule 11 - CB Problems p. 355 #1

  • Party calls Opponent threatening her with a lawsuit that Party knows to be groundless. May Party be sanctioned under R. 11 (why/why not)? Different result if Lawyer makes the call?

  • Party files a groundless interrogatory. May party be sanctioned under R. 11

p. 355 #2

  • Client rushes into lawyer’s office, telling a story that suggests several forms of liability. Lawyer drafts complaint embodying the claims described by client. Def. moves for summary judgment, attaching documents, photos, affidavits from disinterested persons indicating most of Client’s story was entirely false.

  • A. Who has violated R. 11?

  • B. Does the Rule require lawyers to be suspicious of clients’ stories?

  • C. Does your analysis change if the client walks into the office the day before the statute of limitations runs?

355 #3

  • In May, Lawyer files an answer asserting a Statute of Limitations defense. At the time she filed the answer, she reasonably believed the facts warranted that defense. In July, she learns facts that confirm that the statute of limitations has not run. Does Lawyer violate R. 11 by failing to file an amended answer? Does Lawyer violate the Rule by orally asserting this defense at a December pre-trial conference?

Walker v. Norwest Corp

  • What are the relevant facts?

  • What portion of R. 11 did the lawyers allegedly violate?

Walker cont’d

  • P’s argue - it was too hard to figure out the def’s citizenship. Why was the court not receptive to that argument?

  • If you are filing a diversity suit and don’t know the defendant’s citizenship how can you figure it out?

  • What could the plaintiffs in this case have done to correct the problem when it was brought to their attention?

  • How did the court address the argu that sanctions were an abuse of discretion b/c the court simply could have dismissed the lawsuit?

Practice Pointers

  • How can you protect your client if you’re wrong and there is no diversity?

  • How would you feel if this published opinion was about what you did?

Questions p. 358

  • #2 – Defendants sent plaintiffs a letter with notice of the complaint’s deficiencies. Assume that they did not accompany that letter with their R. 11 motion. After 21 days, the plaintiffs did not dismiss the complaint and the defendants filed the R. 11 motion. Would a sanctions order be proper under the Rule given this scenario?


  • In Walker, could the judge have imposed R. 11 sanctions on her own once she discovered that there was not complete diversity? If yes, what would she have had to have done first?

p. 358

  • Who is responsible for paying the fees assed by the court? The Walkers (Massey’s clients)? Massey himself?

Christian v. Mattell

  • What are the facts?


  • What portion of R. 11 did the lawyer allegedly violate?

  • Did the court abuse its discretion in imposing sanctions under R. 11?

  • What instances of bad lawyering did the lower court consider? Did it in considering all of Hicks’ conduct?

  • Is there any other grounds (besides R. 11) the court could have used to sanction the non-pleading conduct?


  • Why didn’t Mattel simply try and get the plaintiffs to withdraw the complaint at the outset rather than first filing for summary judgment and then filing a R. 11 motion?

Rule 11 HYPOS

  • In 2004, parents filed suit in Chicago alleging that a public school requirement of uniforms violated their children’s 1st Amendment rights to freedom of expression. The 7th Cir. ruled that the uniform policy furthered an important gov’tl interest in improving education while leaving students ample ways to channel their expression – no 1st Amendment violation.

HYPO cont’d

  • In 2006, the ACLU files suit in federal court alleging that the Decatur City public school uniform policy violates the childrens’ lst Amendment rights. May the defendants move for Rule 11 sanctions upon receipt of this complaint on the ground that the claim is not warranted under existing law because of the 7th Cir. decision?

  • What if the 5th, 6th, 7th and 9th circuits had all declared that public school uniforms do not violate students’ 1st Amendment rights. Now is the GA ACLU suit sanctionable?

Hypo cont’d

  • What if, in 1995, the 11th Cir. Had declared uniforms did not violate the students’ 1st Amendment rights, but btwn 1995-2006, 4 other circuits had come out the other way. Would the 2006 suit now be sanctionable?

  • What if in 2004, the Supreme Court had ruled uniforms don’t violate the 1st Amendment. Would the 2006 suit in the N.D.GA be sanctionable?

Rule 11 Sanctions - ACA

  • The Rule 11 motion was the first one filed in the Anderson case.

  • Do you think Rule 11 was helpful or harmful to the plaintiffs?

  • Do you think the Rule 11 motion helpful or harmful to the defendants?

The initial Rule 11 motion

  • Cheeseman (on behalf of Grace) argued that R. 11 sanctions should apply because there was not any scientific or medical evidence associating the chemicals with leukemia.

  • Do you think this was a facially valid Rule 11 motion?

Jerry Facher’s take on the Rule 11 motion

  • “I didn’t think that in the beginning with a high –profile case brought by our citizens, some of whom were seriously injured, that any Judge was going to throw the case out on Rule 11. So, I politely declined to joint that”

  • Do you agree with Facher’s position?

  • Should a judge be influenced by the fact that it’s a high profile case? How about by the fact that the plaintiffs are seriously injured?

Cheeseman’s view

  • “The most starting aspect of my experience of the Rule 11 motion had to do with the way the Judge contemplated handling the hearing”

    Do you agree with the procedure Judge Skinner used (allowing Cheeseman to ask Schlictmann questions via the judge)?

    What would be a better procedure?

Skinner’s take on the motion

  • “”I had a hearing and the plaintiffs came and said, ‘we’ve gotten opinions from acknowledged experts and we are ready to go forward.’ I said, “well, o.k., that’s good enough for me”

  • Do you agree with his ruling on the Rule 11 motion?

The Final Rule 11 Motion

  • When asking for a new trial, Jan also asked for Rule 11 sanctions against Beatrice for withholding evidence. In support of that motion, Jan gave the court the plaintiff’s work files. Judge Skinner determined from those files that plaintiffs lacked any substantive evidence that Beatrice had disposed of TCE. Thus, the judge imposed R. 11 sanctions on both parties. Do you agree with that ruling?


  • Are there lessons from the Anderson case that provide a model about litigation strategy? Do you think the Rule 11 motion was a good or bad strategy at the start of this litigation; at the end of the litigation?

Complaint drafting

  • Things to think about:

  • Where to file

  • Who are the potential defendants?

  • What are the potential claims against each defendant?

  • How do I tell the story (try to allege one fact per paragraph – keep allegations very short so that easy to see which allegations the defendant is admitting/denying)