Frivolous or Improper Pleadings
Every assertion a lawyer puts in a pleading, and the pleading itself, has to clear two bars.
11. Frivolous or Improper Pleadings
All assertions contained in pleadings (complaints, answers, [counterclaims], and motions) must have a basis in law and fact, and pleadings must not be filed for an improper purpose. Rule 11.
- The Federal Rules of Civil Procedure require lawyers to base their pleadings on viable legal and factual theories.
- Despite this general requirement, the rules allow lawyers to present novel legal theories and arguments to expand the law if there is a good faith basis for the theories or arguments.
- The rules require lawyers to perform a reasonable investigation under the circumstances when drafting pleadings.
- The rules recognize that parties do not always have all the information they need when drafting a pleading; the rules allow for discovery to develop evidentiary support.
- Improper purposes forbidden by the rules include harassment, causing unnecessary delay, and needlessly increasing the cost of litigation.
- The rules allow the judge to impose a range of sanctions for violating these requirements.
- Principle Three: The Federal Rules of Civil Procedure Provide for Extensive Pre-Trial
- Discovery. Discovery Is Intended to Help Parties Hone Their Claims and Defenses,
- Promote Settlement, and Narrow the Issues for Trial.
Every assertion in a pleading, and the pleading itself, must clear two bars: a basis in law and fact and a proper purpose. A violation lets the judge impose a range of sanctions, but several qualifications soften the requirements.
The first bar is a basis in law and fact: the legal theory has to be viable and the factual claims have to rest on something. The second is a proper purpose: the pleading cannot be filed to harass, to cause unnecessary delay, or to needlessly drive up the cost of litigation. That is the heart of it, and the rest is the qualifications students forget.
- 1The viable-theory bar does not freeze the law in place. A lawyer is allowed to advance a novel legal theory, an argument to extend, modify, or build out the law, as long as there is a good faith basis for it. Novelty is fine when it is offered in good faith.
- 2The factual duty is to make a reasonable investigation under the circumstances, not a perfect or exhaustive one.
- 3The rules acknowledge that a party often will not have all the information it needs at the pleading stage. A pleading is not improper merely because the lawyer cannot yet prove every fact; the rules allow discovery to develop evidentiary support.
On the purpose side, recognize the three named improper purposes: harassment, unnecessary delay, and needlessly increasing cost.
Do not confuse a tough but legitimate litigation position with an improper one. A vigorous, well-founded position is not one of the three named improper purposes.
When these requirements are violated, the judge may impose a range of sanctions. The remedy is discretionary and flexible, not a single fixed penalty, and not automatically the dismissal of the case or a fee award; the judge chooses from a range.
Two bars on every pleading: a basis in law and fact, and a proper purpose.
But three softeners students forget.
one, novel legal theories are fine in good faith, so new is not the same as frivolous.
two, the investigation duty is reasonable under the circumstances, not perfect.
three, you need not have every fact at filing, because discovery exists to develop the support.
The three named improper purposes: harassment, unnecessary delay, needlessly increasing cost.
Violations get a range of sanctions at the judge's discretion, not one fixed penalty.
A lawyer files a complaint asserting a theory of liability that no court in the jurisdiction has yet accepted, but the lawyer has a good faith argument, grounded in the trend of the law, that the courts should extend liability to this situation. The lawyer has done a reasonable investigation but does not yet have documents that are in the defendant's sole possession and that the lawyer expects to obtain in discovery. The defendant moves for sanctions, calling the complaint frivolous because the theory is untested and the lawyer cannot yet prove every fact.
If the lawyer filed the same complaint with no good faith basis and admitted the goal was to harass the defendant and run up its costs, the improper-purpose bar is violated and the judge may impose sanctions from a range of options.
An option that says any novel or untested theory is automatically frivolous, or that any new argument may be sanctioned.
The rules allow novel theories to expand the law where there is a good faith basis; novelty alone is not a violation.An option demanding a perfect or complete factual investigation, or proof of every fact before filing.
The duty is a reasonable investigation under the circumstances, and discovery may develop evidentiary support.An option that recasts a vigorous but legitimate, well-founded litigation position as an improper purpose.
The named improper purposes are harassment, unnecessary delay, and needlessly increasing cost; a good faith position is not one of them.An option that says a violation triggers one fixed, mandatory sanction or requires the moving party's requested penalty.
The judge may impose a range of sanctions in discretion; there is no single mandatory penalty.the stem hands you a pleading attacked as frivolous or improper, then leans on one of four hooks: the theory is novel or untested, the lawyer cannot yet prove every fact, the lawyer took an aggressive position, or someone demands a particular sanction.
Run the two bars.
Basis in law and fact: a novel theory survives if offered in good faith, and the factual duty is only a reasonable investigation, with discovery available to develop support, so a pleading is not frivolous merely because some facts are not yet provable.
Proper purpose: check for the three named improper purposes, harassment, unnecessary delay, needlessly increasing cost, and do not mistake a tough but legitimate position for one of them.
If a violation exists, remember the remedy is a range of sanctions in the judge's discretion, not one mandatory penalty.
A lawyer filed a complaint advancing a theory of liability that no court in the jurisdiction had yet recognized. The lawyer had a good faith argument, grounded in the direction of recent decisions, that the courts should extend the law to cover the situation. The opposing party moved for sanctions, contending that because the theory was untested, the complaint was frivolous on its face.
Is the court likely to impose sanctions on the lawyer for advancing the novel theory?
A lawyer conducted a reasonable investigation before filing a complaint, but certain key documents were in the sole possession of the defendant and could not be obtained before suit. The lawyer expected to obtain those documents through discovery. The defendant moved for sanctions, arguing that the lawyer should not have filed without already possessing proof of every fact alleged.
Is the court likely to find the complaint improper for lack of complete factual support at filing?
A lawyer filed a series of repetitive motions in a case. The motions had no good faith legal or factual basis, and the lawyer's stated goal, reflected in internal notes, was to wear down the opposing party and drive up its litigation expenses. The opposing party moved for sanctions based on the purpose behind the filings.
Is the court likely to find that the lawyer filed the motions for an improper purpose?
A lawyer pursued a legitimate, well-supported legal theory on behalf of a client and litigated it aggressively, filing well-founded motions that happened to impose real expense on the opposing party. The opposing party moved for sanctions, asserting that the aggressive approach and the cost it imposed showed an improper purpose to harass.
Is the court likely to find that the lawyer acted with an improper purpose?
A lawyer filed a pleading with no basis in law or fact and for the purpose of delaying the proceedings. The court found a clear violation of the requirements governing pleadings. The opposing party asked the court for a specific monetary penalty, contending that this exact penalty was the mandatory consequence of any such violation.
Is the court likely to be limited to imposing the one specific penalty the opposing party demanded?