*For additional information regarding the criterion for inclusion or membership for lawyer associations, awards, & certifications click image for link.

Civil Procedure II Outline - Part 2

Download the PDF version of this outline

<< Part 1 | Part 3 >>

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

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or 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.

(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;
    • Analysis of 11(b)(2)- Rule 11(b)(2) tolerates nonfrivolous argument for extending, modifying, or reversing existing laws or for establishing new law
      • Most likely to apply to a situation of civil rights
      • Austin = the “existing law” in the 4th circuit, regardless of the majority rule, and P’s theory wasn’t warranted by it
      • Arguing for change:
      • 4th circuit not bound to follow “the majority rule,” but that rule could supply a persuasive reason for client’s CoA to revisit its own 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
    • Analysis of 11(b)(3) = tolerates factual contentions that may lack evidentiary support at filing a long a they are specifically ID-ed
      • Reasonable: Involves balancing the costs + time available for investigation against the likelihood that more investigation will turn up relevant law + evidence]
        • Reasonableness factors:
          • Complexity of the factual and legal issues in question
          • Extent to which pertinent facts were under the control of opponents and 3rd parties
          • Extent to which the lawyer relied on the client for facts
          • Whether the case wa accepted from another lawyer and the extent to which the receiving lawyer relied on the referring lawyer
          • Resources reasonably available to the lawyer to conduct an inquiry
          • Extent to which the lawyer was on notice that further inquiry might be appropriate
      • Doesn’t require steps that aren’t cost-justified
      • It is about what you know (or should know after reasonable inquiry) at the time of presenting that controls
      • Rule 11 taking a “snapshot” of state of idea at time of presenting that serves a basis for deciding whether paper complied w rule
      • No obligation to withdraw paper on basis of later-acquired info
  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.
    • Analysis of Rule 11 (b)
      • presumes pleader conducted a reasonable inquiry, including acquiring reasonably accessible info in order to admit/deny allegations in the complaint
      • doesn’t look to standard of care in particular lawyer’s community of practice; rather a national standard
      • depends on both time available to investigate and on the probability that more investigation will turn up important evidence
      • Losing Doesn't violate this rule
        • Unless the loss is because claims were legally frivolous then its a violation

(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).
    • Analysis of Rule 11(c)(3)
      • Rule 11(c)(3) = requires a court acting of its own initiative to order offender “to show cause why conduct specifically described in 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.
    • Analysis of 11(c)(4)
      • sanction must be limited to what suffices to deter repetition of conduct or comparable conduct by others similarly situated
      • Court charged with imposing the least severe sanction that would deter repetition of the violation
      • Objective is deterrence, not compensation or punishment
      • Sanctions: Monetary or nonmonetary :Nonmonetary could be a apology or reprimand
  5. Limitations on Monetary Sanctions. The court must not impose a monetary sanction:
    1. against a represented party for violating Rule 11(b)(2); or
    2. 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.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.

  • Analysis of Whole Rule 11
    • Requires a reasonable pre-filling inquiry into the facts by the pleader which may settle these kinds of questions before the pleading is filed.
    • sets out both standard of care and candor in pleading (also for the filing of other papers before the court) + the sanctions for violating the standard
    • Bad faith not required to violate the rule. Good faith not a defense against a violation.
15 Amended and Supplemental Pleadings

(a) Amending as a Matter of Course. A party may amend its pleading once as a matter of course within:

  1. 21 days after serving it, or
  2. if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.

(2) Other Amendments. In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.

(3) Time to Respond. Unless the court orders otherwise, any required response to an amended pleading must be made within the time remaining to respond to the original pleading or within 14 days after service of the amended pleading, whichever is later.

  • Analysis of 15(a)
    • Addresses 2 types of amendments before trial:Amendments allowed as a matter of course (can be filed w/o the court’s permission)
    • Amendments by leave of court (requires the court’s permission)
    • Rule 15(a) authorizes amendment once as a matter of course (without leave) in 3 circumstances:
      1. a party may amend the original pleading once w/o leave of court w/i 21 days of serving that pleading
      2. if the original pleading is one to which a responsive pleading is required, a party may amend the original pleading w/i 21 days after the responsive pleading is served
      3. if a party files a motion:Under Rule 12(b) to dismiss a complaint, counterclaim, crossclaim, or 3rd party complaint
    • Under Rule 12(e) for a more definite statement Under Rule 12(f) to strike Pleader may amend w/i 21 days after the motion is served Court must determine whether to grant leave to amend under Rule 15(a)
      • Court considers variety of factors:
        • Whether in bad faith
        • Timing: would D have enough time to prepare defense
        • Number of times previously amended
        • Futility

(b) Amendments During and After Trial.

  1. Based on an Objection at Trial. If, at trial, a party objects that evidence is not within the issues raised in the pleadings, the court may permit the pleadings to be amended. The court should freely permit an amendment when doing so will aid in presenting the merits and the objecting party fails to satisfy the court that the evidence would prejudice that party's action or defense on the merits. The court may grant a continuance to enable the objecting party to meet the evidence.
  2. For Issues Tried by Consent. When an issue not raised by the pleadings is tried by the parties’ express or implied consent, it must be treated in all respects as if raised in the pleadings. A party may move—at any time, even after judgment—to amend the pleadings to conform them to the evidence and to raise an unpleaded issue. But failure to amend does not affect the result of the trial of that issue.
    • Analysis of Rule 15(b)
      • sets a stricter standard than 15(a) as applied to amendments during or after trial

(c) Relation Back of Amendments.

  1. When an Amendment Relates Back. An amendment to a pleading relates back to the date of the original pleading when:
    1. the law that provides the applicable statute of limitations allows relation back;

      Analysis of 15(c)(1)(a)-As long as P has sued someone before the limitations period runs, she may add other Ds later w/o regard to the limitations in 15(c)15(c)(1)(a) = such state law provisions will apply if state law governs the limitations period

    2. the amendment asserts a claim or defense that arose out of the conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading; or
      • Analysis of Rule 15(c)(1)(B)
        • even if applicable law doesn’t expressly allow relation back, allowed if new claim or defense arose out of the conduct, transaction, or occurrence set out in the original pleading
        • Bonerb Court asked “whether D was put on notice of the claim that the P later seeks to add”
          • Transactional nexus: theory of relation-back rule: original pleading gave the party notice of the conduct/transaction/occurrence for which he was being sued, so he will not be unfairly surprised by the addition of a new claim based on the same events
            • Supported by 5th Cir. (Barthel v. Stamm)
    3. the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment:
      1. received such notice of the action that it will not be prejudiced in defending on the merits; and
      2. knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.
        • Rule 15(c)(1)(C):
          • authorizes relation back of an amendment “changing the party against whom a claim is asserted” if several requirements are met ************
          • Theory behind relation back of amendments that change parties:
            • Notice: grounds for the relation back as long as claims/defenses arose from the same transaction as the original pleading
            • in Bonerb How amendment changing parties is different:
              • New party was not served with the original complaint w/i limitations period because they weren’t an original party
          • 15(c)(1)(c) recognizes that timely notice for a new party is more problematic than for a party who was actually sued and served w/i the limitations period
            • Requires some notice of the original action (and transaction giving rise) be received by the new party during the limitations period allowed for service of a timely filed complaint
            • Includes any extension of the service period permitted by the court under Rule 4(m)
              • 90 day period for service of original complaint and summons
            • Rule doesn’t say anything about “service” of notice to the new party; only requires that the party received such notice of the action that it will not be prejudiced in defending on the merits; and knew or should have known
  2. Notice to the United States. When the United States or a United States officer or agency is added as a defendant by amendment, the notice requirements of Rule 15(c)(1)(C)(i) and (ii) are satisfied if, during the stated period, process was delivered or mailed to the United States attorney or the United States attorney's designee, to the Attorney General of the United States, or to the officer or agency.
    • Analysis of 15(c)
      • Rule 15(c): addresses amendments attempted after SoL has run out and whether they can relate back (backdating to the date of timely original pleading that they amend)
        • Matters of delay: Rule 15(c) says nothing about the timing of P’s diligence in making such an amendment, if its relation-back requirements are satisfied then relation back is mandatory (delay still relevant under Rule 15(a))

(d) Supplemental Pleadings. On motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented. The court may permit supplementation even though the original pleading is defective in stating a claim or defense. The court may order that the opposing party plead to the supplemental pleading within a specified time.

  • Rule 15 Analysis
    • was created to provide the max opportunity for each claim to be decided on its merits rather than on procedural niceties
    • Variances disallowed under CL now allowed under
    • Rule 15 Mistakes of ignorance:
      • Most courts held that lack of knowledge of ID of correct Ds is not a mistake w/i meaning of Rule 15(c) (P must exercise diligence in discovering ID of Ds)
      • Krupski: court only held that lower courts were incorrect in inferring that Krupski had made a deliberate choice not to sue, based on her knowledge of CC’s answer and the ID of CC as carrier on back of ticket
Related Topics

The Charlotte lawyers at Powers Law Firm PA are dedicated to compassionate legal representation, predicated on superlative knowledge, trial skills, and conscientious advocacy.

The gift of a legal education extends beyond a fulfilling way to earn a living. Omni autem cui multum datum.

Bill Powers - Bill@CarolinaAttorneys.com

Carolina Law Blog / Awards and Certifications

Client Reviews
I am so fortunate to have had Bill Powers on my case. Upon our first meeting, Bill insisted that through the emotions of anger, sadness, confusion, and betrayal that I remain resilient. He was available to answer questions with researched, logical, truthful answers throughout our two year stretch together... J.R.
Bill Powers and his firm were a true blessing. If anyone is contacting an attorney, it's more than likely not from a positive life experience. If there was a rating for "bedside manner" for lawyers he'd get a 10/10 for that as well. The entire staff were helpful... K.C.
Bill Powers’ staff has handled several traffic citations for me over the years, and they exceeded my expectations each and every time. Would highly recommend anyone faced with a traffic citation or court case contact his office and they will handle it from there. M.C.
Bill and his staff are flat out great. I (unfortunately) was a repeat customer after a string of tickets. These guys not only took care of the initial ticket for me, but went the extra mile and reduced my problems from 3 to just 1 (very minor one) on the same day I called back! I would recommend them to anyone. A.R.