#12250 - Rules Governing Pleadings And Motions - Civil Procedure

INTERMISSION: RULES GOVERNING PLEADINGS & MOTIONS

1. General Rules of Pleadings – FRCP 4, 5, 8(a), 9(b), 10, 11

   1. Synthesized Rule/Procedure

      1. Π* must file all pleadings with the court and serve each to Δ*.

      2. Each pleading should have a caption and title, numbered paragraphs, and a signature certifying that the pleading is not frivolous and has evidentiary support.

   2. Textual Rule

      1. Service: pleadings addressed to absent parties (e.g. the complaint) must be served via FRCP 4. All other pleadings must be served via FRCP 5. Note that service is complete upon mailing. FRCP 5(b)(3)(C).

      2. Pleadings Allowed: a complaint; an answer to a complaint; an answer to a counterclaim designated as a counterclaim; an answer to a cross claim; a third-party complaint; an answer to a third-party complaint; and if the court orders, a reply to an answer. FRCP 7(a).

      3. Pleading Special Matters: fraud; time & place; and special damages must be pleaded with specificity. Capacity or authority to sue; conditions precedent; official documents; or judgments may be normally pleaded with generality. FRCP 9(b).

      4. Format: all pleadings must be “simple, concise, and direct,” FRCP 8(d)(1), and must have:

         1. a caption with the court’s name, a title, file number and a FRCP 7(a) designation (e.g. 7(a)(1), “a complaint”);

         2. the title must name all of the parties (complaint only) or the first party on each side; and

         3. numbered paragraphs should each limited to a single set of circumstances. FRCP 10.

         4. They also must have the signature of an attorney; if lacking, this should be corrected. FRCP 11(a).

      5. Representations to the Court: Π*’s attorney must certify that it is to the best of her knowledge, information, and belief, that the pleading is not meant to harass; the legal contentions are warranted; the factual contentions have evidentiary support or will likely have evidentiary support; and that denials are warranted on the evidence or reasonably based on a lack of information. FRCP 11(a)–(b).

      6. Construing Pleadings: they should be construed so as to do justice. FRCP 8(e).

2. General Rules of Motions – FRCP 6(c), 7(b), 11.

   1. Synthesized Rule/Procedure

      1. Π* must make a request for a court order by motion. Written motions must be served to Δ*.

   2. Textual Rule

      1. Service: written motions must be served to Δ* unless they may be heard ex parte. FRCP 5(a)(1)(D). Note that service is complete upon mailing. FRCP 5(b)(3)(C).

         1. Hearings: Notice of hearings must be served at least 14 days before the time specified for the hearing unless the motion may be heard ex parte or the court sets a different time. FRCP 6(c)(1).

      2. Affidavits: any affidavit supporting a motion must be served with it; any opposing affidavit must be served at least 7 days before the hearing. FRCP 6(c)(2).

      3. Format: motions must be in writing unless made during a hearing or trial; state with particularity the grounds for seeking the order; and state the relief sought. FRCP 7(b).

         1. The formats for pleadings (e.g. a caption) apply to motions. FRCP 7(b)(2).

         2. They also must have the signature of an attorney; if lacking, this should be corrected. FRCP 11(a).

      4. Representations to the Court: Π*’s attorney must certify that it is to the best of her knowledge, information, and belief, that the pleading is not meant to harass; the legal contentions are warranted; the factual contentions have evidentiary support or will likely have evidentiary support; and that denials are warranted on the evidence or reasonably based on a lack of information. FRCP 11(a)–(b).

3. Multiple & Frivolous Claims –FRCP 8(d)(3), 11, 18, 28 U.S.C. §1927

   1. Synthesized Rule/Procedure

      1. Π* may include multiple claims in her pleading, even if they are inconsistent, so long as they are all to the best of Π*’s belief.

   2. Textual Rule

      1. Multiple Claims: Π* may state as independent, alternative, or contingent claims as many as it has against Δ*, FRCP 18, regardless of consistency or hypotheticality, FRCP 8(d)(3).

      2. Frivolous Claims: are ones in which 11(b) is violated; the court may impose an appropriate sanction, FRCP 11(c)(1), defined by 11(c)(4) (e.g. nonmonetary directives) and limited by 11(c)(5) (e.g. no monetary sanctions for violating 11(b)(2) (legal claims)).

         1. On Motion: Π* must move separately from other motions and serve under FRCP 5, but if Δ amends or withdraws problem within 21 days, no sanctions. Court may award prevailing party expenses. FRCP 11(c)(2).

         2. On Court’s Initiative: court may order Δ* to show cause why conduct has not violated FRCP 11(b). FRCP 11(c)(3).

   3. Analysis

      1. Multiple Claims

         1. Π may plead inconsistent allegations so long as they each satisfy FRCP 11(b) (to the best of Π’s belief...”) and Π does not know one is false. McCormick.

         2. Inconsistent pleadings may be eliminated in discovery via FRCP 41 dismissals. PAE Gov. Serv. Inc. v. MPRI, Inc. (9th Cir. 2007).

         3. The standard for contradictory pleadings is high, e.g. Smith.

         4. The remedy for two completely different but valid claims is separate trials. FRCP 42(b).

      2. Aggregating AICs via Joinder

         1. When Π aggregates AICs via FRCP 18 claims (joinder of claims), $75,000 total is fine.

      3. Frivolous Claims

         1. The remedy for frivolous claims are sanctions:

            1. 28 U.S.C. §1927 are sanctions against “vexatious litigators.”

            2. FRCP 11(c)(1) are sanctions for frivolous motions or pleadings.

         2. Frivolous claims are notoriously difficult to assess; an improper (i.e. tactical) purpose, such as choosing an inconvenient venue or speaking to the press re: nonfrivolous claims are not frivolous if the claims are well-grounded. Sussman.

            1. Frivolous motions are easier to assess:

               1. a court may sanction a party for violating FRCP 11(b)’s objective standard. U.S. Bank Nat’l Ass’n.

               2. a court may even sanction a motion for sanctions. Nw. Bypass Grp.

         3. Sanctions are limited to what will deter repetition. They may not be awarded without a show-cause order or for a frivolous legal claim.

         4. Some pleadings, e.g. FRCP 23.1 Shareholder Derivatives, must be “verified. “Verified” pleadings not booby traps; Π whose son-in-law investigated Hilton carefully satisfies verification via FRCP 11(b)’s “reasonable belief.” Surowitz v. Hilton Hotels Grp. (U.S. 1966).

   4. Cases

      1. McCormick v. Kopmann (Ill. Ct. App. 1959, 133): Δ₁, truck driver, hit Π’s husband, who may have gotten drunk at Δ₂’s bar. Π sued on contradictory counts: either he was sober and Δ₁ was liable, or he was drunk and Δ₂ was liable. This is allowed under FRCP 8(d)(3) and 11(b).

      2. Smith v. Cashland (10th Cir. 1999): Δ could attempt to prove both (1) he did not fire Π, and (2), if he fired Π it was due to Π’s bad performance.

      3. Wall v. City of Brookfield (7th Cir. 2005): Δ took Π’s dog after she violated leash ordinance. The deprivation clearly passes the Mathews test and may be frivolous.

      4. Sussman v. Bank of Israel (2d Cir. 1995): Π threatened to sue Δ if it did not withdraw lawsuit in Israel, and said to the press that the suit would embarrass Δ. S.D.N.Y. dismissed due to improper forum, and sanctioned for improper purpose. But since the lawsuit had nonfrivolous claims, its purpose by definition could not be improper.

      5. U.S. Bank Nat’l Ass’n v....