1. Fri., Sept. 5

2. Rule 11. Signing Pleadings, Motions, and Other Papers; Representations to the Court; Sanctions

3. (b) Representations to the Court
(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:

4. (1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

5. (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;

6. (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 (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.

7. Murphy v. Cuomo (N.D.N.Y. 1996)

8. (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

9. Assume each allegation in the complaint was prefaced with the following statement:
“The following allegation is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery:”

10. Can a plaintiff lose at summary judgment and nevertheless have satisfied R 11(b)(3) at the pleading stage?

11. Can a plaintiff defeat a motion for summary judgment and nevertheless have violated R 11(b)(3) at the pleading stage?

12. Imagine that Murphy got lucky and evidence of a conspiracy between Zarc and NY officials to test the pepper spray on innocents came out in discovery. Does that mean that Rule 11(b)(3) was not violated?

13. (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;

14. Why not require that the legal contentions be warranted by existing law?

15. What if the invocation of the drug statute was prefaced by the following:
“We would like the law to be extended such that a private right of action should be read into this statute.”

16. There is a non-frivolous argument for the drug statute’s having a private right of action, but it is never employed by the plaintiff.

17. Who can be sanctioned under R 11? Murphy?

18. 11(c)(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.

19. Murphy told Ballan that Zarc had participated in the study to test the effect of the pepper spray on innocent people.
May Ballan be sanctioned under R. 11?
May Murphy be sanctioned under R. 11?

20. Murphy gives Ballan a fabricated document that looks like evidence that Zarc participated in a study to test the pepper spray on innocents.
May Ballan be sanctioned under R. 11?
May Murphy be sanctioned under R. 11?

21. say Murphy came up with the drug statute argument, can he be required to pay for the other side’s costs in responding?

22. 11(c)(5) Limitations on Monetary Sanctions
11(c)(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction: (A) against a represented party for violating Rule 11(b)(2)…

23. types of sanction under R 11

24. 11(c)(4) 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.

25. how to move for R 11 sanctions

26. 11(c)(2) Motion for Sanctions
11(c)(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.

27. can a court apply R 11 sanctions sua sponte?

28. 11(c)(3) On the Court’s Initiative
11(c)(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).

29. R 11(c)(5) Limitations on Monetary Sanctions
R 11(c)(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction… (B) 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.

30. Can a motion for Rule 11 sanctions be grounds for Rule 11 sanctions?

31. alternative pleading

32. R 8(d)(2) Alternative Statements of a Claim or Defense
R 8(d)(2) Alternative Statements of a Claim or Defense. A party may set out two or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones.

33. (3) Inconsistent Claims or Defenses
(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

34. P sues D alleging that D borrowed P’s vase and returned it cracked
P sues D alleging that D borrowed P’s vase and returned it cracked. D answers alleging that D never borrowed vase, that vase was cracked when D borrowed it, and that D returned vase uncracked. OK?

35. constitutional restrictions on service

36. - P sues D in Oregon state court for negligence, asking for $100,000 - P serves D by putting a copy of the summons and complaint down a sewer drain - this is acceptable service under Oregon law - D does not find out about the suit - P gets a default judgment of $100,000 against D - the Oregon court attaches property owned by D in Oregon worth $100,000 and transfers it to P

37. U. S. Const. Amendment V. No person shall
U.S. Const. Amendment V. No person shall be deprived of life, liberty, or property, without due process of law . . .  Amendment XIV. Section 1.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

38. Must there always be actual notice to the defendant for due process to be satisfied?

39. Mennonite Board of Missions v. Adams (U.S. 1983)

40. Mullane v. Central Hanover Bank & Trust Co. (U.S. 1950)

41. “An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.”

42. Rule 3.  Commencement of Action A civil action is commenced by filing a complaint with the court.

43. Rule 4. Summons (a) Contents; Amendments. (1) Contents
Rule 4. Summons (a) Contents; Amendments.     (1) Contents. A summons must:         (A) name the court and the parties;         (B) be directed to the defendant;         (C) state the name and address of the plaintiff’s attorney or — if unrepresented — of the plaintiff;         (D) state the time within which the defendant must appear and defend;         (E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;         (F) be signed by the clerk; and         (G) bear the court’s seal.

44. A lawsuit has been filed against you
A lawsuit has been filed against you. Within 20 days <Use 60 days if the defendant is the United States or a United States agency, or is an officer or employee of the United States allowed 60 days by Rule 12(a)(3)> after service of this summons on you (not counting the day you received it), you must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff’s attorney, <Name of Plaintiff’s Attorney>, whose address is <Address of Plaintiff’s Attorney>. If you fail to do so, judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. Date: <Date> <Signature of Clerk of Court> ________________________________________ Clerk of Court (Court

45. service

46. what if service is improper?

47. if you default: - motion to set aside judgment - collateral attack

48. P sues D (Cal.) in S.D.N.Y. D defaults (reason was improper service) P gets default judgment P sues on default judgment in state court in Cal. D collaterally attacks the judgment on the basis of improper service.

49. if you find out about the suit despite the inadequate service: - pre-answer motion to dismiss for insufficient service of process FRCP 12(b)(5) - defense of insufficient service in the answer

50. Why can the D challenge service if she got actual notice?

51. waiver of service of summons

52. We will study rules for service for actions filed in federal court concerning defendants that are individuals, corporations, and unincorporated associations when service is effectuated in the United States - we will ignore: service in other countries service when the United States, a state, or a local government is the defendant service on infants or incompetent persons

53. service when defendant is an individual

54. 1) P files an action against D in the E. D. Va
1) P files an action against D in the E.D. Va. for violation of federal law. - D resides in Boston, Massachusetts. - P drives to D’s home in Massachusetts and delivers the complaint to D personally at his home. - D appears in the E.D. Va. and makes a motion to dismiss for insufficiency of service of process and insufficiency of process. What result?

55. 4(c) Service. … (2) By Whom. Any person who is at least 18 years old and not a party may serve a summons and complaint.

56. 4(e) Serving an Individual Within a Judicial District of the United States.  Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:

57. (1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or…

58. (2) doing any of the following:     (A) delivering a copy of the summons and of the complaint to the individual personally;     (B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or     (C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

59. What if Mass. or Va. law had said a party may serve?

60. Mass. R. Civ. P. 4(c) By Whom Served
Mass. R. Civ. P. 4(c) By Whom Served.  Except as otherwise permitted by paragraph (h) of this rule, service of all process shall be made by a sheriff, by his deputy, or by a special sheriff; by any other person duly authorized by law; by some person specially appointed by the court for that purpose...

61. Va. Code § 8. 01-293 WHO TO SERVE PROCESS. A
Va.Code §  WHO TO SERVE PROCESS. A.  The following persons are authorized to serve process:     1.  The sheriff within such territorial bounds as described in § ; or     2.  Any person of age eighteen years or older and who is not a party or otherwise interested in the subject matter in controversy…

62. 2) P files an action against D in the E. D. Va
2) P files an action against D in the E.D. Va. for violation of federal law. - D resides in Boston, Massachusetts and has a summer home in Martha’s Vineyard. - P waits 3 months after filing to have a process server deliver a copy of the summons and complaint to D at his summer home. - D appears in the E.D. Va. and makes a motion to dismiss for insufficiency of service of process. - What result?

63. 4(m) Time Limit for Service
4(m) Time Limit for Service.  If a defendant is not served within 120 days after the complaint is filed, the court — on motion or on its own after notice to the plaintiff — must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.. .

64. 3) The P Corp. files an action against D in the E. D. Va
3) The P Corp. files an action against D in the E.D. Va. for violation of federal law. - D resides in Boston, Massachusetts and has a summer home in Martha’s Vineyard. - The P Corp. has an employee deliver a copy of the summons and complaint to D at his summer home. - D appears in the E.D. Va. and makes a motion to dismiss for insufficiency of service of process. - What result?

65. 4) P files an action against D in the E. D. Va
4) P files an action against D in the E.D. Va. for violation of federal law. - D resides in Boston, Massachusetts and has a summer home in Martha’s Vineyard - P has his brother leave a copy of the summons and complaint with D’s 16 year-old daughter who is staying for the summer at his summer home. - D appears in the E.D. Va. and makes a motion to dismiss for insufficiency of service of process. What result?

66. Mass. R. Civ. P. 4(d) Summons: Personal Service Within the Commonwealth.  …Service shall be made as follows: (1) Upon an individual by delivering a copy of the summons and of the complaint to him personally; or by leaving copies thereof at his last and usual place of abode; or by delivering a copy of the summons and of the complaint to an agent authorized by appointment or by statute to receive service of process, provided that any further notice required by such statute be given….

67. Va. Code § 8. 01-296 MANNER OF SERVING PROCESS UPON NATURAL PERSONS. A
Va.Code §  MANNER OF SERVING PROCESS UPON NATURAL PERSONS. A. In any action at law or in equity or any other civil proceeding in any court, process, for which no particular mode of service is prescribed, may be served upon natural persons as follows:     1.         By delivering a copy thereof in writing to the party in person; or

68. By substituted service in the following manner: a
 By substituted service in the following manner:         a.         If the party to be served is not found at his usual place of abode, by delivering a copy of such process and giving information of its purport to any person found there, who is a member of his family, other than a temporary sojourner or guest, and who is of the age of sixteen years or older; or         b.         If such service cannot be effected under subdivision 2 a, then by posting a copy of such process at the front door or at such other door as appears to be the main entrance of such place of abode…

69. What if P’s brother had knocked at the door of D’s home in Boston and finding no one there had left a copy of the summons and complaint attached to D’s front door?