Rule 11: Signing of Pleadings, Motions and Other Papers; Representation to Court; Sanctions
(a) Signature: Every paper presented to the court shall be signed and include signer’s address and telephone number
(b) Representations to the Court: If atty or unrep’d person presents a document/pleading to the ct., he certifies
Did Reasonable Inquiry under the Circumstances –AND-
1) into the law –AND-
2) Fact
Reasonably believes
1) Not for improper purpose –AND-
2) Has legal support –AND-
3) Has evidentiary support
(c) Sanctions: ct. may impose sanctions upon atty’s, law firms, or parties that have violated subdivision (b) or are responsible for the violation
(1)(A) Initiated by Motion:
–Safe Harbor Provision: not filed until 21 days after service; only filed if violation not corrected
–Sanctions: atty’s fees/expenses; absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by partners, associates, and employees
(1)(B) On Court’s Initiative: direct atty, firm, or party to show cause why it hasn’t violated subsection (b)
–No Safe Harbor period
(2) Nature of Sanctions; Limitations: ltd to what is sufficient to deter; may consist of directives, penalties to the ct, atty fees/expenses
(A)$ sanctions can’t be awarded against represented party for violation of (b)(2)
(B)$ sanctions can’t be awarded if ct’s order to show cause was issued after a voluntary dismissal or settlement of the action
(3) When imposing sanctions, the ct. shall explain why
(d) Inapplicability to Discovery: Doesn’t apply to disclosure or discovery—see Rule 26(g)
WHAT IS BEING CERTIFIED?
1. Certifying to the Court: only atty’s or unrep’d parties can certify to the ct 11(a), 11(b)
A. Certifying means signing, filing, submitting, or later advocating a pleading, written motion, or other paper to the court 11(b)
2. Reasonable Belief vs. Reasonable Inquiry 11(b)
A. Harden v. Peck: Atty must have reasonable belief that claims have legal and evidentiary support at the time that the complaint is filed (*RULE FOR THE COURSE*)
B. Just because a reasonable belief is formed, does not mean a reasonable inquiry under the circumstances is complete.
C. Factors in determining adequate inquiry:
1) Strength of current evidentiary support
2) Availability of other investigation avenues
3) Time and expense of the other avenues of investigation
4) Likelihood that more investigation will pan-out
5) Amount of time available (i.e. SoL)
3. “Bubba Smith” Approach: pulling as many defendants in as possible
A. Harden: Is wrong if don’t have evidence against defendant or didn’t complete reasonable inquiry
B. In re Keegan: is okay if (1) has done reas inq’y, (2) has (a) some evidentiary and legal support or (b) an actual basis for reasonably believing that further investigation/discovery will likely produce evidentiary support by R11 hearing
–R11 doesn’t require reasonable results, just reasonable inquiry
4. Sanctions: ct. may impose sanctions upon the atty, firm, or persons that have violated R11(b) or responsible for the violation 11(c)
A. Only atty’s or unrep’d parties can violate subd (b), but can sanction whoever violated or caused the violation
B. Withdrawal of the challenged complaint 11(c)(1)(A) must be made under rule 41:
41(a)(1) Can be dismissed by plaintiff without order of the court (i) by filing a notice of dismissal before service of an answer –OR- motion for summary judgment –OR- (ii) by filing a dismissal signed by all parties
41(a)(2) Dismissed by order of the ct and upon the terms and conditions that the ct deems proper (i.e. R11 sanctions)
C. The filing of an answer or a motion for summary judgment won’t allow the plaintiff to withdraw the complaint within the Safe Harbor period without the ct’s permission
5. Inherent power to sanction: Court has and inherent power to sanction bad faith conduct
A. Ct. can exercise inherent power to sanction any atty or party for bad faith conduct that adversely affects proceedings before the court
B. 28 U.S.C. 1927: can sanction any atty who unreasonably or vexatiously multiplies the proceedings of a case
THE PLEADINGS
Rule 7: Pleadings Allowed; Forms of Motions
(a) Pleadings: No other pleading, than the following, will be allowed without a court order:
A. There shall be a complaint and an answer
B. A Reply to a counterclaim identified as such
C. An Answer to a cross-claim
D. A Third-Party Complaint, if is non-party is summoned under R14
E. A Third-Party Answer if a Third-Party Complaint is served
(b) Motions and Other Papers:
(1) A request for a court order shall be made by motion, which will be in writing (unless during a trial or hearing) and state the grounds for the motion and the relief order sough.
(2) All motions shall be signed in accordance with R11
1. Basic Responses to a Complaint:
A. Motions to Dismiss 12(b)
B. Other Rule 12 Motions
C. Answer 12(a)(1), alleging affirmative defenses under 8(c) or 12(b)
D. Motion for Summary Judgment 56(b) (must Answer before filing a Motion for Summary Judgment)
The Complaint
Rule 3: An action is commenced by filing a complaint with the court
Rule 8(a): A complaint (or pleading which sets forth a claim for relief) must contain:
(1) short and plain statement of jurisdiction
(2) short and plain statement of claim showing a right to relief
(3) a demand for judgment for relief sought
Form 9: Sample, minimalist complaint
Ariz. R. Civ. P. 39(b)(2): Can read the complaint as part of the opening statement
Rule 9(g): items of special damage (injuries not a necessary/inevitable result of the injury) must be specifically stated
1. Standards for the Complaint:
A. “fair notice” of claim and grounds upon which it rests; heightened pleadings are only required in particular cases as stated in R9
B. Special damages must be pleaded before evidence of them can be introduced at trial
C. Multiple/Alternative claims:
1) Rule 8(e)(2): Can state as many separate claims, regardless of their consistency
2) Rule 11: must have a reasonable belief that each claim has or is likely to have factual support
3) Form 10: example of alternative claims in one complaint
2. Statute of Limitations: A complaint must be filed on or before the last day of the SoL; Service of Process can go past the SoL
A. Ambiguities in the complaint resolved in favor of the plaintiffàmay be able to escape SoL restrictions by making a vague complaint
Commencement and Service of Process
Rule 4: Summons
(a) Form: Summons shall be:
A. Signed by clerk,
B. bear the seal of the court,
C. id the court and the parties,
D. be directed to the defendant,
E. state the name and address of the plaintiff
F. state the time within which the defendant must appear and defend,
G. notify the defendant that failure to do so will result in a judgment by default for the relief demanded.
(b) Issuance: Upon or after filing of the complaint:
A. The P may present the summons for the clerk’s signature and seal.
B. If summons in proper form, clerk shall sign, seal, and issue it to the P for service on the D.
C. A summons shall be issued for each D.
(c) Service with Complaint; by Whom Made.
(1) Summons served with copy of complaint; P responsible for service within time allotted by R4(m)
(2) Service can be done by any non-party over 18; ct may direct a US marshal, deputy US marshal, or another person or officer to perform service (must direct if party acting in forma pauperis)
(d)(2) Waiver of Service; Duty to Save Costs of Service; Request to Waive. (See notes on H5): P may notify D of commencement of the action and request that D waive service of summons. The notice and request:
(A)shall be in writing, addressed to defendant or general agent of a corporation or association (see 4(h))
(B) shall be mailed
(C)shall be accompanied by a copy of the complaint and i.d. the ct in which it has been filed
(D)shall inform D of consequences of compliance and failure to comply (D pays cost of service of process)
(E) shall state date which request was sent
(F) shall allow D reasonable time to return waiver (30 days if in US, 60 if not)
(G)Shall provide extra copy of notice, request, and prepaid means of compliance (2 copies of the waiver and a return envelope)
(e) Service Upon Individuals Within a Judicial District of the US: Delivery of summons can be completed upon a person in any US District (as long as no waiver on file)
(1) pursuant to state law
(2) deliver summons and complaint personally, leave at house or regular place of abode with suitable person, or to authorized agent
(h) Service Upon Corporations and Associations
(1) In US jurisdictionàdelivery pursuant to state law; mail to an officer, managing or general agent, or agent authorized by law
(m) Time Limit for Service: must deliver summons/complaint within 120 days after filing of complaint or ct can dismiss without prejudice or direct service be effected within a specific time; if P shows good cause for failure to serve process, the ct shall extend time to an appropriate period
Rule 12 Motions
12(b) How to Present Defenses and Objections:
Waivable under 12(g)
Waivable under 12(h)(1)
Not Waivable under 12(h)(2)
Not Waivable under 12(h)(3)
12(b)(1): Lack of subject-mater jurisdiction
x
12(b)(2): Lack of jurisdiction over the person
X
X
12(b)(3): Improper Venue
X
X
12(b)(4): Insufficiency of Process
X
X
12(b)(5): Insufficiency of Service of Process
X
X
12(b)(6): Failure to state a claim upon which relief can be granted
X
12(b)(7): Failure to join a party under R19
X
12(e): Motion for More Definite Statement—can be used to force a correction, to enforce R8(a) and R9, to force the addition of allegations that estb. an affirmative defense that will allow dismissal
X
12(f): Motion to Strike
X
re to amend doesn’t affect judgments. If evd objected to as not within pleading, ct may freely allow amendment based on the merits of the action and that the objecting party fails to show that admission of evd would prejudice their case.
1. “Implicitly Tried” issue
Ct must determine if other party had adequate notice of the issue to consent to its litigation–(1) Doe the evidence adhear/flow from an issue at hand? (2) Is the evidence relevant to another issue being litigated?
F: Father sued for custody. Mother won child support, custody, alimony, and atty’s fees. Ct. held that child support flowed from child custody: therefore there was adequate notice to the other side to litigate. However, alimony didn’t flow, but was relevant to child support; therefore, there wasn’t adequate notice to litigate.
Rule 15(c): Relation Back of Amendments: Relates back to original date of pleading when:
(1) permitted by law that provides SoL
(2) arises out of same occurrence(s) set forth/attempted to be set forth in org pleading
(3) changes party or naming of party against who claim is asserted if subd. (2) is satisfied -AND- within 4(m) period party to be brought in by amendment:
(A) has received notice of action so that pty won’t be prejudiced in maintaining a defense –AND-
(B) pty knew or should have known that, except for the i.d. mistake, the action would have been brought against party
1. Can only amend under R15(a) until R12 motion made
2. Misnomer Corrections:
A. Must meet requirements of 15(a), 15(c)(2), and make sure new pty receives notice of action, and knew/should have known the action was meant to be against him within 4(m) period
1) Can provide notice by sending a letter or serving amended complaint
B. 4(m) period: 120 days plus any extensions
C. Policy: don’t penalize plaintiff for filing early
D. Doesn’t apply to adding a party (use 15(c)(2) to add, as long as not past SoL)
E. John Doe, Richard Roe defendants: fictitious name used when don’t know real name or want privacy
1) Counting on getting names during discovery
Joinder of Parties
Rule 20(a): Permissive Joinder of Parties:
1. Can join plaintiffs in one action if:
A. Assert right to relief: -AND-
1) Jointly, severally, or in the alternative -AND-
2) Out of the same (series) transaction(s) or occurrence(s)
B. Any one question of law or fact common to all plaintiffs
2. A plaintiff can join defendants in one action if:
A. Any right to relief asserted against defendants: -AND-
3) Jointly, severally, or in the alternative -AND-
4) Out of the same (series) transaction(s) or occurrence(s)
B. Any one question of law or fact common to all defendants
Rule 18(a): A party asserting a claim to relief can join as many claims as the party has against an opposing party
Rule 14: Third-Party Practice
(a) When Defendant May Bring in Third Party
A. D may serve summons/complaint on a non-party who is, or may be, liable to D for P’s claim against D
B. D may serve Third-Party Complaint within 10 days of serving the Answer; after that time, must get ct’s permission
C. Third-Party D shall make any defenses to the D’s claims as provided in R12, any counterclaims against D, and cross claims against other 3rd-Party D’s under R13
D. 3rd-Party D can assert any defense against P that D has against P
E. 3rd-Party D can assert claim against P arising from subject-matter/occurrence(s) of complaint
F. P can assert claim against 3rd-Party D arising from subject-matter/occurrence(s) of complaint; 3rd-Party D shall Answer per R12 and R13
G. Any party can move to strike, severe, or separate the 3rd-Party claim
H. 3rd-Party D can proceed under this rule to join any non-party who may be liable to the 3rd-Party D
I. Maritime law
(b) When Plaintiff May Bring in Third Party: When counterclaim is asserted against P, the P may bring in a third-party per subd. (a)
Forms 22A and 22B: Third-Party Summons and Complaint
1. Rule 18 vs. Rule 20
A. Must meet the R20 requirements before joining claims under R18
B. Once R20 is satisfied, can tack on individual claims under R18
C. Plaintiff cannot join over objection of another plaintiff under R20
2. Third-Party Joinder
A. Standard: 14(a)
1) Non-Party
2) Liable to Third-Party Plaintiff for all or part of the claim against him
B. R14 doesn’t require filing of Third-Party complaint; can bring in separate action later
C. Only Third-Party P can collect from Third-Party D, unless P asserts a claim against the Third-Party D (through an amended or new complaint)
D. Third-Party can respond with:
1) Answer (7(a), 14(a), 12(a)(1))
2) Any R12 defense or motion (per 14(a))
3) Counterclaims against Third-Party Plaintiff (14(a), 13(a) and (b))
4) Cross-claims (13(g), 14(a))
5) Motion for Summary Judgment (56(b))
6)
