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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:

(c) Sanctions.

(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.

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Comment Preferences

  •  Tip Jar (24+ / 0-)

    "We journalists make it a point to know very little about an extremely wide variety of topics; this is how we stay objective." - Dave Barry

    by Drew S on Fri Aug 01, 2014 at 09:55:30 AM PDT

  •  I agree (12+ / 0-)

    Rule 11 is for particularly vexatious litigants; the House is wrong here, but they're not crazy.

  •  The truly crazy thing? (8+ / 0-)

    The American people are getting used to hearing what sounds like crazy talk coming from our Supreme Court.

    Just yesterday, I read that Justice Ruth Bader Ginsberg, in an interview, basically said that the five majority men of Burwell vs Hobby Lobby, simply don't understand women enough.

    In a case where the Court found that a legal entity (a corporation) made up of shares owned only by family members and not a publicly traded corporation has Right to a religious belief under the 1st Amendment.

    Now, please, tell me that's not crazy.

    How can a legal entity which is not HUMAN have any belief whatsoever? After all, a corporation of any sort is no more than the incorporating documents which established it's Charter.

    So when you say that you expect a District Court to see this attack on the presidency (and not merely the guy who occupies the office currently) by the US House as a Bad Act and not an actual, viable legal claim...

    I agree with you. But I fear that a whole host of Americans will see it as just one more move by the Conservative Right to "follow their beliefs".

    Like Hobby Lobby did.


    "I like paying taxes...with them, I buy Civilization"

    by Angie in WA State on Fri Aug 01, 2014 at 10:25:04 AM PDT

    •  It's not a First Amendment case (5+ / 0-)

      It deals with the RFRA statute, which includes corporations as persons.  As Justice Alito wrote:

      As we will show, Congress provided protection for people like the Hahns and Greens by employing a familiar legal fiction: It included corporations within RFRA’s definition of “persons.” But it is important to keep in mind that the purpose of this fiction is to provide protection for human beings. A corporation is simply a form of organization used by human beings to achieve desired ends. An established body of law specifies the rights and obligations of the people (including shareholders, officers, and employees) who are associated with a corporation in one way or another. When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people. For example, extending Fourth Amendment protection to corporations protects the privacy interests of employees and others associated with the company. Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being. And protecting the free-exercise rights of corporations like Hobby Lobby, Conestoga, and Mardel protects the religious liberty of the humans who own and control those companies
      •  My understanding was that they claimed a (2+ / 0-)
        Recommended by:
        thanatokephaloides, KDfrAZ

        first amendment protection to "practice of religion" which was Amended and re-inforced via the RFRA.

        Their 'practice of religion' interfered with was that complying with an aspect of the PPACA went against a "deeply held religious belief". The latter part was what was reinforced by the RFRA.


        "I like paying taxes...with them, I buy Civilization"

        by Angie in WA State on Fri Aug 01, 2014 at 11:55:22 AM PDT

        [ Parent ]

      •  and the situation is further complicated (3+ / 0-)

        by incorporated churches.  I would have liked to see the court rule that employers do not have the right to impose their beliefs on employees. Mebbe someday, but not soon.

        •  what you're getting at there is... (2+ / 0-)

          ... the contest between the relative rights of employers and employees to espousal and practice of religion: the classic issue of whose rights take precedence.

          Conventionally there is no contest: employers have generally had no concern with the religious beliefs of employees, and religious discrimination in employment is long-settled law.  

          But the problem specifically arises in relation to fundamentalism, which is inherently expansionist: it claims to have unique and exclusive possession of religious truth and morality, and does not allow for competing religious claims.  Thus it attempts to assert a right to exclusively dominate all spheres of religious thought, and use any available societal mechanisms to do so.  Including the law.  Which gets us to where we are today.

          We got the future back. Uh-oh.

          by G2geek on Fri Aug 01, 2014 at 07:07:17 PM PDT

          [ Parent ]

      •  Alito is full of it. (4+ / 0-)

        "When rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people."

        NO.  The sole purpose of corporate law is to create a fictitious "person" whose assets are separate from the personal assets of the people who own the corporation.  The rights of the principals are totally separate, and need no extra  "protection".  The corporation's rights are whatever Congress says they are.

        "Protecting corporations from government seizure of their property without just compensation protects all those who have a stake in the corporations’ financial well-being."  True statement, but not a statement of the law. (Alito is learning from Scalia, or else Scalia gave this to him.) It is likewise a true statement that protecting my personal assets from seizure "protects" my creditors -- and this, too, is not a statement of the law, nor is it why the law exists.  

        Alito starts with this fake "law" and then stretches it beyond recognition, to reach the bizarre concept of "free exercise rights of corporations."  What a horrible concept, and what a godawful Pandora's box they've ripped open with this boneheaded decision.  History will not be kind to the Roberts Court.

      •  if RFRA named corporations as persons... (0+ / 0-)

        ... then it would seem that HL had a leg to stand on, though that's not the same thing as saying that the decision was right.

        Seems to me there's a paradigm issue here over the definition of "legal person."

        Conventionally and with no arguing from our side, everyone agrees that corporations have a legal existence, and have the rights to sue & be sued in their own name, buy/own/sell property, etc.  

        But what our side is arguing ultimately comes down to the distinction between an "entity" and a "person" where the latter has connotations of consciousness, mortality, and in regard to espousal of religion, consciousness of its mortality.

        Question is, how do we go about dealing with that distinction in case law, without "performing surgery with an axe"?

        We got the future back. Uh-oh.

        by G2geek on Fri Aug 01, 2014 at 07:03:21 PM PDT

        [ Parent ]

        •  has to be on a case-by-case ... (0+ / 0-)

          ... and statute-by-statute basis. In this case, I'd have held that Hobby Lobby is a person for RFRA purposes, in the same way that I'd want a halal butcher shop to be able to sue over restrictions on its slaughtering methods, but wasn't unduly burdened given how indirectly it was subsidizing its employees' choices.

          Here's what Alito goes on to say in that case, FWIW:

          As we noted above, RFRA applies to “a person’s” exercise of religion, 42 U. S. C. §§2000bb–1(a), (b), and RFRA itself does not define the term “person.” We therefore look to the Dictionary Act, which we must consult “[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise.” 1 U. S. C. §1.

          Under the Dictionary Act, “the wor[d] ‘person’ . . . include[s] corporations, companies, associations, firms, partnerships, societies, and joint stock companies, as well as individuals.” Ibid.; see FCC v. AT&T Inc., 562 U. S. _, _ (2011) (slip op., at 6) (“We have no doubt that ‘person,’ in a legal setting, often refers to artificial entities. The Dictionary Act makes that clear”). Thus, unless there is something about the RFRA context that “indicates otherwise,” the Dictionary Act provides a quick, clear, and affirmative answer to the question whether the companies involved in these cases may be heard.

  •  I just like (3+ / 0-)

    that you have "Boehner" and "porn" in the same sentence. It's the juvenile things in life that keep it fun.

    If god doesn't have a sense of humor I'm f*cked

    by apoliticism on Fri Aug 01, 2014 at 12:28:04 PM PDT

    •  I did it mostly... (5+ / 0-)

      because this lawsuit is juvenile.  Its the school ground equivalent of "I don't like that kid.  Let's go make up some shit about him and tell everyone."

      I don't like bullies and crybabies.  Boehner, you lost.  Stopping being such a little bitch and try to govern.

      Oh well...never gonna happen.

      "We journalists make it a point to know very little about an extremely wide variety of topics; this is how we stay objective." - Dave Barry

      by Drew S on Fri Aug 01, 2014 at 12:50:47 PM PDT

      [ Parent ]

      •  Rule 11(b)(1) will get them. (1+ / 0-)
        Recommended by:
        WoodlandsPerson

        The blatant contradiction between multiple attempts to repeal ACA and suing Obama for failing to enforce it, is prima facie evidence that this is vexatious litigation.

        If I were a judge I'd throw them the hell out of there as vexatious litigants, and dismiss with prejudice.

        We got the future back. Uh-oh.

        by G2geek on Fri Aug 01, 2014 at 07:12:48 PM PDT

        [ Parent ]

  •  What attorney will represent Boehner? (0+ / 0-)

    Not Verelli, right?

    "Doubt kills more dreams than failure ever will."

    by never forget 2000 on Fri Aug 01, 2014 at 12:48:46 PM PDT

  •  appreciate these diaries. (2+ / 0-)
    Recommended by:
    Drew S, WoodlandsPerson

    good education for a non-lawyer

  •  "...I think the much better bet..." (0+ / 0-)

    ...will be FRCP 12(b).

    I trust you are planning to explain that cryptic teaser?

    (raising eyebrow)

    One size of anything NEVER fits all.

    by KDfrAZ on Fri Aug 01, 2014 at 09:09:34 PM PDT

    •  Sorry, (0+ / 0-)

      but earlier in my stream, I wrote an entire diary talking about FRCP 12(b).  

      "We journalists make it a point to know very little about an extremely wide variety of topics; this is how we stay objective." - Dave Barry

      by Drew S on Mon Aug 04, 2014 at 09:48:40 AM PDT

      [ Parent ]

      •  Ah. I must admit, I am new to the streams... (0+ / 0-)

        ... and diaries, etc. Until very recently, I just glanced through the Daily Kos recommendations. Only got on to that by accident, I think; I mostly had followed the election coverage two years ago.

        I'll look back upstream, once I figure out how. :)

        Thanks!

        One size of anything NEVER fits all.

        by KDfrAZ on Tue Aug 05, 2014 at 03:14:12 AM PDT

        [ Parent ]

  •  IMHO the Repub "house" and "leader" Boener have (0+ / 0-)

    ...demonstrated consistency they don't give a "aeronautical intercourse with a precipitating piece of pastry", about rules, laws, or decorum. So why should their leader in the house give a good dump about "Federal Rule of Civil Procedure".  He and they are preaching and playing to their pay-masters and those deep pockets and those assholes want to make sure POTUS Obama "knows" who is pulling the strings. For them this is all fun and games/Kabuki.  It would be funny if not for the millions of American citizens that have and will continue to be hurt due to their unAmerican attitude about doing the nation's business.

    Our nations quality of life is based on the rightousness of its people.

    by kalihikane on Sat Aug 02, 2014 at 05:40:47 PM PDT

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