Pre-Filing Investigations And Sanctions

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Rule 11a’s nickname

Back 1

A SIGNATURE PLEASE: Signature

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Rule 11a requires 3 things:

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Signature on Every

• Pleading

• Written motion

• Or other paper

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Rule 11b Nickname:

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BE HONEST Representations to the court

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Rule 11b Definition

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Representations to the court “to the best of their knowledge, info and belief” are true formed after a Reasonable Investigation under the circumstances

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Rule 11b’s 4 circumstances

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1. No improper Purposes (STOP AND THINK Before Filing!)

2. Warranted by existing law or by non-frivolous argument for reversing, modifying, extending (REM) existing law or establishing new law

3. Factual contentions have evidentiary support, or after a reasonable opp. for further investigation or discovery

4. The denials of factual contentions are warranted on the evidence, or are reasonable based on belief or lack of info.

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Rule 11(c) does what?

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outlines the requirement for sanctioning attorneys and their clients

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11c’s Nickname

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Sanctions: POW POW

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11c1

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1. If after notice and a reasonable time to respond Ct. determines that Rule 11b has been violated, the Ct. may impose a sanction on atty, law firm, or party.

*Law firm must also be held jointly responsible

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11c2’s Name/Function

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2. Motion for sanctions

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2 elements of motion for sanctions

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a. Must be made Sep. from any other motion and must describe the specific conduct that allegedly violates Rule 11b.

b. Must be served under rule 5, but NOT filed or presented to the Ct. if the paper, claim, defense contention, or denial is withdrawn/corrected within 21 days after service (21 Day Safe Harbor) (or time the Ct. sets). Ct may award reasonable expenses (including attys fees)

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11c3 Name/purpose:

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3. On the Cts’ initiative (on its own) (Sua Sponte Sanctions)

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11c3’s Definition

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a Ct. may order atty, firm or party to SHOW CAUSE why conduct was NOT a Rule 11b violation.

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Rule 11c4 name:

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4. Nature of sanctions

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Rule 11c4 function

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Under this rule sanction must be limited to what suffices to deter repetition of the conduct by other similarly situated

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Rule 11c5’s name

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5. Limits on x$$ Sanctions

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Rule 11c5’s Definition

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Ct. must not impose Money sanctions:

i. Against a represented party (Client) for a Rule 11b2 Violation

ii. On its own, unless it issued the SHOW CAUSE ORDER under Rule 11c3 before voluntary dismissal/settlement of the claims

1. Made by

2. Or against the party that is or

3. Whose attorneys are to be sanctioned.

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11c6 name

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Req.’s for an Order

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11c6 defenition

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Order imposing sanction must describe the sanctioned conduct and explain basis for sanction.

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Rule 11 General Definition

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Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

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Rule 12 General Definition

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Defenses and Objections: When and How Presented; Motion for Judgment on the

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Rule 13 General Defenition

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Counterclaim and Crossclaim

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Rule 14 General definition

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Third-Party Practice

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Rule 15 general definition

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Amended and Supplemental Pleadings

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Rule 16 general Definition

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Pretrial Conferences; Scheduling; Management

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Pleadings and Motions encompass which rules #s

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7-16

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Rule 8a’s nickname:

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SHOW ME THE MONEY: Claim for Relief

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Rule 8a Must contain what 3 things

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1.A short and plain Statement on grounds for Cts Jurisdictio

2. A short and plain Statement of the claims showing that the pleader is entitled to relief

3. a demand for the relief sought,

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Rule 9b’s nickname:

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YOU KNOW YOU ****** UP RIGHT: Pleading cases of fraud or mistake; aka Conditions of the mind.

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Rule 9b Function

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In alleging Fraud/mistake a party must:

1. State with particularity the circumstances constituting Fraud/Mistake

2. Malice, intent Knowledge and other conditions of a person’s mind may be alleged generally.

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Rule 8b Nickname

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MAYBE I DID MAYBE I DIDN’T: Defenses; admissions and Denials.

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D.A.D

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Rule 8b’s functions

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1. In responding to a pleading, a party MUST:

A. State in short and plain terms its defenses to each claim asserted against it; and

B. Admit or deny the allegations asserted against it by an opposing party.

2. Denials- responding to substance

• Must Fairly respond to the substance of the allegation

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8b3 name :

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General and Specific Denials

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Elements of 8b3

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• A party that intends in good faith to deny all the allegations of a pleading---including jurisdictional grounds may do so by a general denial.

• A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

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8b4 Name:

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Denying Part of an Allegation

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8b4: Denying Part of an Allegation

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A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

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8b5 name

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Lacking Knowledge or Information

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8b5 Lacking Knowledge or Informations purpose

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A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

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8b6 Name:

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Effect of Failing to Deny

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8b6 6. Effect of Failing to Denys function

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An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

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Rule 8c Nickname

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YEAH! AND WHAT ABOUT IT? Affirmative Defenses

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8c1 Function

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In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• contributory negligence;

• fraud;

• statute of limitations; and

• waiver.

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Rule 8c2 name

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Mistaken Designation

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Rule 8c2 function:

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If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

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Rule 8d1 Nickname

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8 INCH *Ick

d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

Hint 44

ADIC

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Rule 8d2

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MORE THAN 1 *Ick

"Rule 8(d)(2) states that the parties can advance numerous theories or claims and defenses"

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Rule 8d2 actual name

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Alternative Statements of a Claim or Defense

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8d1s function

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Each allegation must be simple, concise, and direct. No technical form is required.

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Rule 8d3 nickname

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DIFF STROKES OF DIFF FOLKS; Inconsistent Claims or Defenses

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Rule 8d2 function

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states that the parties can advance numerous theories or claims and defenses"

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8d3 function

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A party may state as many separate claims or defenses as it has, regardless of consistency.

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Rule 8e name

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Construing Pleadings

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Rule 8es function

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Pleadings must be construed so as to do justice.

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Rule 12 is known as

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the work horse of the federal rules because it dictates how so many pertinent steps in the litigation process must be taken.

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Rule 12 elements

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• The timing of filings,

• the content of those filings, and

• how the filings must be presented to the court are all controlled by Rule 12."

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Following the filing of a complaint, the responding party must

Back 55

file a responsive pleading or an answer.

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Compare rule 8 and rule 12

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While Rule 8 sets out the requirements for the content of that answer, Rule 12(a) provides the deadlines for filing a timely response."

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Rule 12a nickname

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XMAS DRUNK DEADLINE

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Rule 12aA elements

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• within 21 days after being served with the summons and complaint; or

• if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States

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Rule 12aB

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A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

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12aC

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A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

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Effect of a Motion

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Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

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Rule 12b Nickname

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PUT YOUR HANDS UP B! How to Present Defenses

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Defenses by motion

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12b1-7

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12b1

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lack of subject-matter jurisdiction

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12b2

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lack of personal jurisdiction;

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12b3

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improper venue;

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12b4

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insufficient process

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12b5

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insufficient service of process

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12b6

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failure to state a claim upon which relief can be granted;

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12b7

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failure to join a party under Rule 19

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Rule 12e Nickname

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SAY WHAT? Motion for a More Definite Statement

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Rule 12e elements

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• The motion must be made before filing a responsive pleading and

• must point out the defects complained of and the details desired.

• If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.

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Rule 12f nickname

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HOW DARE YOU SIR! PUNCH YOU IN YOUR FACE! Motion to Strike

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12f Function

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The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

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12f the court may act

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1. on its own; or

2. on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.

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Rule 12c nickname

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I’ll BE THE JUDGE OF THAT! Motion for Judgment on the Pleadings.

Front 77

Rule 12c function

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After the pleadings are closed—but early enough not to delay trial—a party may move for judgment on the pleadings.

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Rule 12d nickname

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PLEADING SNITCH: Result of Presenting Matters Outside the Pleading

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12d function

Back 79

After the pleadings are closed, a party may move for a judgment on the pleadings by using Rule 12(c). However, if evidence outside of the pleadings is presented with a Rule 12(b) (6) motion or a Rule 12(c) motion, and the court does not exclude that evidence, the court must treat that motion as one for summary judgment under Rule 56."

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Rule 55 name

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Default; Default judgment.

Front 81

Rule 55a Default

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When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

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Rule 55b name

Back 82

Entering a Default Judgment.