Federal Rules of

Civil Procedure: (a),(b),(c)

Signing Pleadings,
Motions, and Other
Papers; Representations

RULE 11 to the Court; Sanctions

RULE 11: ACCOUNTABILITY FOR WHAT YOU SUBMIT
TO THE COURT AND THE SACTIONS FOR VIOLATION
OF THE STANDARDS
  Chapter 15: Care and Candor in Pleading
-Hays v. Sony Corp. of America
-Hunter v. Earthgrains Co. Bakery
-FRCP 11(a),(b)
-Proper purpose
-FRCP 11(c)
• Rule 11 applies to all non-discovery papers filed in the federal
district court.
• Rule 11 does not apply to appellate courts.
 11(a) SIGNATURE.

Every pleading, written motion, and other paper

• must be signed by at least one attorney’s name—or by a party
personally if the party is unrepresented
• must state the signer’s address, e-mail address, and telephone
number (unless a rule of statute specifically states otherwise)
• A pleading need not be verified or accompanied by an affidavit
• The court must strike an unsigned paper unless the omission is
promptly corrected after being called to the attorney’s or party’s
attention.
11(b)
REPRESENTATIONS An attorney or unrepresented party certifies that to the best to
the person’s knowledge, information, and belief, formed after
TO THE COURT an inquiry reasonable under the circumstances
• (1) it is not 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 reasonable opportunity for further
investigation or discovery
• (4) the denial of factual contentions are warranted on the
evidence or, if specifically, so identified, are reasonably
based on belief or a lack of information
 (1) In general: If, after notice and a reasonable opportunity to respond,
when the court determines that rule 11(b) has been violated, the court may
impose an appropriate sanction on the attorney, law firm, or party that
violated the rule or is responsible for the action. (law firms are typically
held jointly responsible)

(2) Motions Must be made separately from any other motion, and must describe the specific
11(b) violation conduct
to sanction.
Motion must be served under rule 5, but must If warranted, the court may award to the
not be presented to the court or filed if the prevailing party the reasonable expenses,

11(c)
challenged violation is withdrawn or including attorney’s fees, incurred on the
corrected within 21 days after service or motion
within a time the court sets

SANCTIONS (3) On the courts initiative: (sua sponte) on its own the
court may order an attorney, law firm, or party to show
cause why conduct specifically described has not violated
rule 11(b)
(4) nature of the sanction: A sanction imposed must be limited to what suffices to
deter repetition of the conduct or comparable conduct by similar situations. 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
the payment to the nonmovant of part of all of the attorney’s fees and other expenses
directly resulting from the violation.
 All rule 11 certifications to the court must be
based on a pre-filing “inquiry reasonable under
the circumstances

Reasonable
Inquiry A pre-filing inquiry is “reasonable under the
circumstances”-- this is a fact based question

Hays v Sony: an attorney who fails to make a

reasonable inquiry whether the asserted claims
are warranted by existing law are subject to
sanctions under rule 11.
 Rule 11’s standard of care is an objective standard that makes no express
allowance for the particular circumstances of the individual lawyer.

Pre-filing
Reasonableness is always a question of balancing the cost in time and resources of
the pre-filing inquiry against the likely benefits. This applied with special force to
pre-filing inquiry into evidentiary support, which can be very costly.

Inquiries Since 1983, rule 11 has not required ”bad faith” to find a violation. There is a
negligence standard of care with “reasonable” inquiry. Ignorance is no good
defense.

There is not general obligation to withdraw the paper on the basis of later-acquired
information. However, “presenting” also includes “later advocating”. If, after
learning the information that showed that the complaints claims lacked evidentiary
support, and the attorney defended the claims, then she would be “later
advocating”.
Pre-filing inquires
Rule 11 applies to specifically all “claims, defenses, and other legal contentions,” as well as “factual contentions”
and “denials of factual contentions,” not just to the filed paper as a whole. The court added that when deciding an
appropriate sanction, a court should consider whether a violation “infected the entire pleading, or only one
particular court defense. . . .”

Rule 11’s “stop and think” obligation is non-delegable.

Rule 11’s question is: whether she did good enough under the circumstances.
 The complexity The extend to which
pertinent facts were
of the factual and
under the control of
legal issues in opponents and third
question parties

Reasonableness
factors
Whether the case was
The extent to accepted from another
which the lawyer lawyer and the extent to
relied on the which the receiving
lawyer relied on the
client for the facts referring lawyer.
 Rule 11(b)(2) recognizes this possibility by tolerating
“nonfrivolous argument for extending, modifying, or reversing
existing law or for establishing new law.

Good Faith How far can you push in making such arguments before
crossing the rule 11 line? (Hunter v. Earthgrains Co. Bakery )

Arguments Civil rights is most commonly the practice that plaintiffs’

lawyers most often face rule 11 motions for making arguments

for Changes for changes in the law.

in Law
The extent to which the litigant has researched the issues and
found some support for its theories is taken into account.

The legal theory a litigant advances to change the law does not
ultimately have to succeed for it to be non-frivolous and
therefore complaint with rule 11.
Proper Purpose (rule 11(b)(1) violation)
Rule 11(b)(1): pleading or other paper may not be presented for any improper purpose, such as to harass,
cause unnecessary delay, or needlessly increase the cost of litigation.”

A paper’s purpose is determined by the objective standard.

These are exceptionally rare, because a paper with legal and factual matter are not sanctionable.

They are most common when a party is filing a ridiculous amount of motions.

You see this violation most commonly in tandem with another 11(b) violation.
 Rule 11 motion must be separate from any other motion and must be
served on the ∆ 21 days before it is filed to the court. This 21-day
safe harbor reduces satellite litigation about rule 11 and affords the

Procedure
negligent lawyer a chance to make things right. This 21-day safe
harbor is only applicable to when the opposing party files the motion.
This is not necessarily applicable when the court acts sua sponte.

for Rule 11
Sanctions Judges typically do not like to sanction, and they are appealable .

You can only impose 11(b)(2) violation on the attorney, not the client. (issue with law).
 Wait Rule Impose

A court does not Rule 11(c)(3) While judges can

need to wait for a requires a court impose the same

Sua Sponte
rule 11 motion to acting sua sponte to nonmonetary
impose sanctions. order the defender sanctions as when
They can act on its “to show why the other party files
own initiative. conduct specifically an 11(b) violation
While there is no describes in the motion, judges

Sanctions safe harbor, due

process requires
notice and a chance
for the offender to
explain and defend.
order has not
violated rule 11(b).
cannot impose fee
shifting as sanction.
They can only
require the
offending party to
pay the court.
 Appropriate Sanctions

The court MAY impose

All sanctions have to be within
sanctions, but it is NOT
the reasonable limit to deter in
REQUIRED for rule 11(b)
the future
violations.

Sanctions can be monetary

(costs, attorney’s fees, or a
penalty paid to the court)
• fee-shifting is only on the table if when
the process starts from the other party
filing the motion
Sanction can be nonmonetary
(reprimand, suspend from
practice, education, shaming,
merits sanctions)
Care and Candor in Pleading: Summary of
Basic Principles
Rule 11, statutes, the inherent
power of the courts to control
litigation conduct, and legal
malpractice law.
Lawyers may be ethically bound to
disclose to the court adverse authority in
the controlling jurisdiction but are not
barred from making non-frivolous
arguments to change it.
Rule 11 defines a form of legal
malpractice based on an
objective negligence standard.
A party who plans to file a rule
11 motion for sanctions must
serve it on the offender 21-days
before filing.
Before presenting any paper to a district
court, the presenter must under-take an
inquiry into the law and the evidence that
is reasonable under the circumstances.
A court that finds there has been a rule 11
violation may issue the least severe
sanction to deter repetition of the
violation, and it may not impose a
monetary sanction on a represented party
for a violation on the legal basis
requirement of rule 11(b)(2).
Presenting a paper certifies that it has a
proper purpose, has a legal basis, and has
evidentiary support at the time that the
paper is presented.
Courts can use their inherent authority to
punish bad faith litigation conduct and
their statutory authority to punish
unreasonably and vexatiously
“multiplied” litigation.