FRCP Rule 11(a) Question

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SwampRat88
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FRCP Rule 11(a) Question

Postby SwampRat88 » Mon Dec 05, 2011 4:43 pm

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Last edited by SwampRat88 on Tue Dec 06, 2011 10:48 am, edited 1 time in total.

always206
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Re: FRCP Rule 11(a) Question

Postby always206 » Mon Dec 05, 2011 5:21 pm

Rule 11(b) applies to Rule 11(a). Therefore, one of two things can happen:

11(c)(1)- the court, on its own, given the party in question received notice and an opportunity to respond, may impose an appropriate sanction. (I presume a Rule 37 sanction, or the like?)

or (the more likely, imo)

11(c)(2)- Another party, D or P, makes a motion to the court describing the violation, supra 11(b) applicable to 11(a). However, prior to the court acting, the moving party must serve a motion, the same motion to prospectively be served to the court, to the party in violation "warning" them about the violation. If then, after 21 days the party in violation fixes the issue, then that motion that was served, as a warning, falls away. However, the rule reads "MOTION." Therefore, if on a hypo a lawyer sends an email, letter, or phone call warning about a prospective 11(a)/11(b) violation, that is insufficient. They (the non-violation party) must actually send the same motion they will file with the court to the party in violation.

So, you would literally mail the party who didn't sign a motion with a motion you could/will file in 21 days if they do not fix the issue. Hence, as a policy matter, it acts as a way of saying, "we can fix this, or I will get the court involved." It is almost a way to regulate one another without actually bringing the judge into the game, but you are threatening to do so..

Hope that helps. BTW, this is what we were taught here. Don't assume this is universal...?

SwampRat88
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Re: FRCP Rule 11(a) Question

Postby SwampRat88 » Mon Dec 05, 2011 5:25 pm

always206 wrote:Rule 11(b) applies to Rule 11(a). Therefore, one of two things can happen:

11(c)(1)- the court, on its own, given the party in question received notice and an opportunity to respond, may impose an appropriate sanction. (I presume a Rule 37 sanction, or the like?)

or (the more likely, imo)

11(c)(2)- Another party, D or P, makes a motion to the court describing the violation, supra 11(b) applicable to 11(a). However, prior to the court acting, the moving party must serve a motion, the same motion to prospectively be served to the court, to the party in violation "warning" them about the violation. If then, after 21 days the party in violation fixes the issue, then that motion that was served, as a warning, falls away. However, the rule reads "MOTION." Therefore, if on a hypo a lawyer sends an email, letter, or phone call warning about a prospective 11(a)/11(b) violation, that is insufficient. They (the non-violation party) must actually send the same motion they will file with the court to the party in violation.

So, you would literally mail the party who didn't sign a motion with a motion you could/will file in 21 days if they do not fix the issue. Hence, as a policy matter, it acts as a way of saying, "we can fix this, or I will get the court involved." It is almost a way to regulate one another without actually bringing the judge into the game, but you are threatening to do so..

Hope that helps. BTW, this is what we were taught here. Don't assume this is universal...?


Did you mean Rule 11(c) applies to Rule 11(a)?

always206
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Re: FRCP Rule 11(a) Question

Postby always206 » Mon Dec 05, 2011 5:34 pm

Rule 11(a),(b), and (c) are conjunctive. Meaning, Rule C applies to B. C and B apply to A.

SwampRat88
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Re: FRCP Rule 11(a) Question

Postby SwampRat88 » Mon Dec 05, 2011 5:35 pm

always206 wrote:Rule 11(a),(b), and (c) are conjunctive. Meaning, Rule C applies to B. C and B apply to A.


I was taught that Rule 11(c) did not apply to Rule 11(a). Rather, 11(c) only applied to 11(b). Weird.

bartleby
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Re: FRCP Rule 11(a) Question

Postby bartleby » Tue Dec 06, 2011 3:09 am

i don't have my rule book in front of me but 11(a), isn't that just saying there has to be a signature on every page? (b) is the one that gets into "certifies to the best of ability blah blah blah"

important things to know about 11(c) is that it used to be mandatory and now is discretionary. this actually makes the threat of sanctions greater cause they don't know what the judge might do. however, it is also important to note that 11(c) should be used w/ minimal amount to deter "bad faith", "willful" or "grossly negligent" conduct. i think it stresses to try and avoid $$$ as sanctions...

WHICH IN TURN IS INTERESTING BECAUSE $$$$ as a sanction is the less drastic measure of punishment in 37.

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Lincoln
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Re: FRCP Rule 11(a) Question

Postby Lincoln » Tue Dec 06, 2011 3:22 am

This question was a bit confusing, but I've spent some time dealing with rule 11 sanctions in federal court, so I'll give you my $0.02:

11(c) applies to 11(b), not 11(a). 11(a) is rarely an issue since the court must call the failure to sign to the party's/attorney's attention, and they then have the opportunity to correct it.

11(c) sanctions are usually imposed as a result of motion by the opposing party under 11(c)(2) (except if, say, a pro se litigant is the opposing party, in which case the court will often guard their interests more vigilantly). This means there will be a regular briefing schedule, or at least cursory oral arguments on the matter.

Even if the court takes the initiative for sanctions under 11(c)(3), the target of the sanctions will have an opportunity "to show cause why conduct specifically described in the order has not violated Rule 11(b)." This is rare, and only comes up in especially egregious cases, or where the judge has warned the attorney or party orally, and they nonetheless proceeded with the argument or conduct.

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johansantana21
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Re: FRCP Rule 11(a) Question

Postby johansantana21 » Tue Dec 06, 2011 3:36 am

Safe harbor provision. I think you have to make a motion for a sanction and the other party has 21 days to amend to avoid sanction.




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