My earlier diary on FRCP brought up a lot of questions on Federal Rule of Civil Procedure (F.R.C.P) Rule 11. Discussion I might call, "revenge porn" or the need to see Boehner and company suffer for presenting the case. So I thought that it needed another discussion.
FRCP Rule 11, in short requires lawyers to not file ridiculous actions. If you do you can be sanctioned.
Below the fold we can get into the rule a bit and see how it may or may not apply in the pending Boehner v Obama nonsense coming our way.
Lots of legalese here gang, so let me do my best to break it down. First off, lets start with the Rule itself.
F.R.C.P. Rule 11, entitled: “SIGNING PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO THE COURT; SANCTIONS” provides, among other things the following:
(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) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(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;
(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
(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.
Under the rule, you can be sanctioned not only for what you write, but for what you later argue. Rule 11(b) tells you to what standard you will be held: an “inquiry reasonable under the circumstances.” So the question is really what is “reasonable” under the circumstances? Is anyone about to get hurt? Is the statue of limitations being run? Is there another remedy? Will this be moot shortly?
Rule 11 requires lawyers to look at their own case and see if, in addition to the case not being filed for the improper purpose noted above but whether the facts (Rule (b)(3)) and the law (Rule 11(b)(2)) support the filing of a case in good faith. In short, can you argue that the facts and the law allow you to make a good claim that has a chance?
Let’s see how this might apply to our hypothetical Boehner, et.al. v. Obama, et.al. non-case.
Rule 11(b)(1) says “it is not being presented for an improper purpose . . .” In short, don’t file a law suit just to screw with someone because you don’t like them or because you know it will cost them money to defend it. This is where lawyers are told to just say “no” to a client or face getting disbarred. I have seen full careers ruined on this Rule.
This is the spot where the Administration will likely have the most traction. All they need do is reference any number of GOP Congressmen that are party to the case against the Administration wherein they say “kill ACA” 50+ times and voila, instant anger case.
Rule 11(b)(2) states: “. . . a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” In plain language, do you have a legal basis for filing the suit.
Here, regardless of the 50 times they tried to repeal ACA, they are trying to compel the enforcement of the law. On its face it looks fine. Since I am not sure if this has ever been done, it will likely pass this particular sniff test. However, I am certain it will
Rule 11(b)(3) requires that the “the allegations and other factual contentions have evidentiary support . . .” In short, do you have evidence to support your claim. I don’t see a problem here for this case.
So why does Rule 11(b) exist? Well it exists as a test for Rule 11(c), Sanctions. The Rule provides:
(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.
(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.
(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) 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.
(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
(A) against a represented party for violating Rule 11(b)(2); or
(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.
(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.
Don’t freak out. It’s complicated but not that complicated. In short, it means, screwing with a Federal Court can make life bad for you.
Rule 11(c) Sanctions. “If after notice and reasonable opportunity to respond . . . the court may . . . impose an appropriate sanction . . .”
What does it mean to be sanctioned? Dismissal, fine, disbarment or all three. The goal is deter the behavior. Like I said, its bad to screw with a District Judge.
To start this kind of action, you file a motion. The mechanic of it can be complicated under Rule 11(c)(1)(A). However, you should know that you have the opportunity to modify the document or withdraw it. If you withdraw it or correct it in the time period, the motion never gets filed. Its your one shot at being frivolous. You should know though that this is separate from the Motion to Dismiss. It’s a motion all on its own.
Rule 11(c)(1)(B) allows the Judge to start this all on their own. No need for the other side to bring it up if its egregious. However, don’t count on it happening. Count on the Administration bringing it up.
Rule 11(c)(2) provides for the kind of sanction that can be brought. It says “A sanction imposed for violation of this rule shall be limited to what is sufficient . . .”
Generally, this means that the sanction fits the stupidity. However, there are some limitations. Rule 11(c)(2)(A) says “Monetary sanctions may not be awarded against a represented party for a violation of subdivision (b)(2) which requires a legal basis for the claim. If you are treading into unknown legal water with a new interpretation, the Rule will let you off the hook and give you the benefit of the doubt.
So is Rule 11 the magic bullet that so many of the readers of my previous entry seem to think it is? Maybe but I don’t think so. We are treading into unknown waters here and so there is a chance the GOP will survive some dismissal under Rule 11. But remember, a Rule 11 motion for sanctions cannot be brought until after the pleadings as they stand alone.
I think the much better bet will be FRCP 12(b)(6). You can count on some revenge porn motions being brought but it might not be the strongest of the arguments against Boehner, et al.