1. Mon., Oct. 29

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

3. (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, 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.

4. (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:

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

6. (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;

7. (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.

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

9. 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but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets.

10. 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.

11. 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)…

12. 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).

13. 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.

14. 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.

15. amendment

16. 15(a) Amendments Before Trial. (1) Amending as a Matter of Course
15(a) Amendments Before Trial. (1) Amending as a Matter of Course.  A party may amend its pleading once as a matter of course within:  (A) 21 days after serving it, or  (B) 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.

17. P files a complaint and serves D in accordance with R
P files a complaint and serves D in accordance with R days later, D answers, introducing the defense of failure to state a claim 20 days after that, P tries to amends his complaint as a matter of course to respond to D’s defense can he?

18. P files a complaint for negligence and serves D in accordance with R
P files a complaint for negligence and serves D in accordance with R days later, D answers, introducing the affirmative defense of contributory negligence 20 days after that, D makes a motion to amend his answer “as a matter of course” to include the defense of lack of personal jurisdiction does this work?

19. P files a complaint for negligence and serves D in accordance with R
P files a complaint for negligence and serves D in accordance with R days later, D answers, denying negligence, introducing the affirmative defense of contributory negligence, and adding a counterclaim against P for negligence 21 days after that, P answers the counterclaim (denying negligence) days after that, D makes a motion to amend his answer “as a matter of course” to include the defense of lack of personal jurisdiction does this work?

20. 15(a)(2) Other Amendments
15(a)(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.

21. scheduling order

22. freely give leave when justice so requires… factors?

23. reason for the amendment amending party’s diligence prejudice to other side futility of amendment prior amendments bad faith

24. Beeck v Aquaslide (8th Cir. 1977)

25. standard of review?

26. standard of review for PJ? Rule 11? Twiqbal? failure to state a claim?

27. bad faith? diligence? prejudice to Beeck?

28. why separate trials?

29. amendment during trial

30. relation back

31. 15(c) Relation Back of Amendments. (1) When an Amendment Relates Back
15(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:         (A) the law that provides the applicable statute of limitations allows relation back;         (B) 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…

32.   - P sues D (within the statute of limitations) for breach of contract - after the statute of limitations had passed, P amends his complaint to include a new theory of liability – promissory estoppel (which does not require a contract) - is P’s action for promissory estoppel time barred?

33. - P sues D (within the statute of limitations) for battery - after the statute of limitations had run on his breach of contract action against D, P amends his complaint against D to include the breach of contract action - is it time barred?

34. why allow relation back?

35. distinguish leave to amend from relation back

36. Bonerb v. Richard J. Caron Foundation (WDNY 1994)

37. - P sues D for negligent manufacturing because the product he bought blew up in his face - after the statute of limitations ran, he amended his complaint to allege negligent hiring of workers – in particular the hiring of an employee with a criminal record for maliciously putting bombs in products

38. Beeck sues Aquaslide within the statute of limitations after the statute of limitations has run, Beeck amends the complaint to add Counterfeiter as the defendant and has it served relation back?

39. - P sues an individual doing business under the name of "Malibou Dude Ranch" - after the limitations period had run P discovered that the owner of the business was "Malibou Dude Ranch, Inc.," a corporation, and that the individual was merely the corporation's agent, who was competent to receive service on behalf of the corporation - P amends the complaint to name the right defendant and serves the individual again - relation back?

40. 15(c)(1)(C) 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: (i) received such notice of the action that it will not be prejudiced in defending on the merits; and (ii) knew or should have known that the action would have been brought against it, but for a mistake concerning the proper party's identity.

41. what is the bit about 4(m)…?

42. statutes of limitations and filing vs. service

43. the statute of limitations ends June 1 P files on June 1 and has D served within the 4(m) time period (90 days) OK?

44. - assume that the relevant statute of limitations (which ends on June 1) tolls upon filing - P sues D for battery, files on June 1 and serves D on July 1 - on July 1, X gets notice - on July 2, P amends to add X - is notice adequate for relation back?

45. - assume that the relevant statute of limitations (which ends on June 1) tolls upon service - P sues D for battery, files on May 31 and serves D on June 1 - on July 1, X gets notice - on July 2, P amends to add X - is notice adequate for relation back?

46. - assume that the relevant statute of limitations (which ends on June 1) tolls upon service - P sues D for battery, files on January 1 and serves D on March 1 - on June 1, X gets notice - on October 2, P amends to add X - is notice adequate for relation back?

47. what kind of notice?

48. P, an employee of D, sues D for the tort of a fellow employee X within the statute of limitations X gets notice with statute of limitations outside the statute of limitations, P then realizes the fellow servant rule forbids suit against D, so P amends to add X and serves him

49. P sues the City of X and “unknown officer” in federal court for violation of her civil rights within the period in 15(c)(1)(C)(i) D (the unknown officer) gets notice with the statute of limitations relation back?