Civ
Pro 2 Notes
We
left off with the short story of pleading.
The bottom line is that Rule 8 is “notice pleading”. Notice should be sufficient to withstand a
motion to dismiss. It’s possible to have
a statement that’s too long. A complaint
could be so detailed that a court could dismiss it on the basis of
prolixity. A 4,000 page complaint is too
damn much! Notice that you can plead inconsistently. It’s provided for in Rule 8(e)(2). You can set forth alternate or hypothetical
statements of claims or defenses regardless of consistency. This may make us uneasy that we can plead
things that are internally inconsistent.
But
Ethical limitations
Yesterday,
we looked at the plight of Haddle.
Haddle lost in the trial court because the law of the circuit said that
he had no property interest in his continued employment. What if the law said that had a property interest if the company
had promised it would only terminate him for cause? In other words, he’s still in an at-will
state, but the company has promised only to fire him for cause. Could Haddle amend his pleading to avoid
12(b)(6)? Shouldn’t he have thought of
that the first time around? Why can’t he
make that point going forward, though?
But we don’t know whether the company promised him he would only be
dismissed for cause. You can’t just lie
to get past 12(b)(6).
Rule 11
Rule
11 is a long rule. Every piece of paper filed in a court shall be
signed by at least one attorney or pro se party. Stuff that’s filed has to be signed! The reason it’s important comes in 11(b): you
assert that you’ve done a reasonable investigation and you, in good faith,
think you’re properly filing the document.
You can’t harass or delay! You
have to have non-frivolous claims! You
have to have facts that can be supported by evidence! There is a tension in the Rules: plead
quickly and get the lawsuit started, but
Rule 11 says that you must have done reasonable investigation first. What are the consequences? The court can impose sanctions! Attorneys, firms, or parties can be
sanctioned. Rule 11(c) sets out a
detailed process for how we do this.
You
can mostly just read Rule 11 and you’ll get it.
If it ain’t filed with the court, it ain’t a Rule 11 violation! If there’s no document, or it’s not filed, or
there’s no court…no violation. What
about groundless discovery? Rule 11
doesn’t apply to discovery! There’s a
different part of the Rules that deal with discovery abuses: Rule 26. The penalty scheme there is different. What about a client who brings in a frivolous
lawsuit and you rush to file it? The attorney
can get knocked for Rule 11(b)(3). It
looks like there was no investigation!
You need an “inquiry reasonable under the circumstances”. That means you might be off the hook if the
client comes to you when the statute of limitations is almost over. If you only have a day to file the lawsuit,
they might go easier on you.
This
is a case of lawyers failing to investigate the law, which isn’t that common. The lawyer filed a lawsuit in federal court claiming
diversity. We must have complete diversity. The Walkers are from
Why
does Massey argue that Rule 11 sanctions are inappropriate here? He says it would be too hard to figure out
where the defendants are from! Tough,
dude! Plaintiffs have managed to do this
basically forever. So the argument is
stupid on its face. It’s not surprising
the sanctions were affirmed given that that’s the extent of his argument.
Pay
attention to what Norwest does. They’re
represented by sophisticated litigation counsel. Do they follow appropriate procedure? Rule 11(c)(1)(A) tells us that we initiate
sanctions by motion after we first give the other party 21 days to withdraw
their motion. Norwest sent the guy a
letter. They didn’t really serve him. Norwest appears to have messed up! To do this right, they should have drafted
its motion for Rule 11 sanctions, served it on Massey, waited 21 days, see if
he dismissed the lawsuit, and only then
file the motion with the court. This is
the safe harbor provision. It tries to let lawyers work these issues out
without taking up the court’s time. So
how do we get an affirmation of the sanctions?
Luckily, there’s another bit, Rule 11(c)(1)(B), which lets the court
impose sanctions sua sponte. Did the district
court issue a show cause order? We don’t
know. Law firms can have their own Rule
11 procedure. You would have to get your
Rule 11 motions approved by your firm’s ethics committee.
Christian v. Mattel,
Inc.
There
are dates stamped on the back of Barbies’ heads! If the plaintiff’s attorney had done even the
most basic research, he would have found that the suit was absolutely
meritless. The plaintiff’s attorney,
Hicks, did lots and lots of stuff wrong.
Why would Mattel have pursued the strategy it pursued? It files its motion for summary judgment
first and then files for Rule 11 sanctions as opposed to filing for Rule 11
sanctions first and getting the lawsuit dismissed. This massively runs up the bill, where you
could have had the same result much faster and cheaper. But Mattel wants to send a message: don’t
screw with us. They chose a more expensive and protracted strategy. This is similar to how WalMart vigorously litigates
slip-and-fall cases. The district court’s
Rule 11 orders are vacated! The district
court, in all its excitement, imposed sanctions for stuff that you can’t impose
sanctions on under Rule 11. You can only
be sanctioned for the filing of improper papers! The district court goes beyond that in its
justification. Hicks gets a short term
victory in the Court of Appeals, but he’ll get hammered when it goes back to
the district court. It’s a victory, in
the long haul, for Mattel. Mattel made a
mistake when they offered up all these different grounds for Rule 11, including
some that weren’t right.
The
bottom line is that Rule 11 provides a way to control the behavior of lawyers
based on the filing of documents in court.
It’s a good rule! Do you factual
investigation!