Mama Bear = rules (digested and organized)



Mama Bear = rules (digested and organized)

Baby Bear = one page, issue spotting outline. Questions to ask?

DUE PROCESS

5th Amendment

14th Amendment

Right to Counsel

I. Matthews vs. Eldrigde

i. Rule elaboration:

1. Primarily in the administrative realm – does it apply to other situations well?

ii. Question: how does the court generally rule given the facts?

1. At the end of the day, it’s about “what feels like th right thing to do” in defining due process

iii.

II. Habeus Corpus

III. Capital Punishment

IV. Writ of Certoriari (Hamdi) – accepting case

a. Cases: Lassiter, Hamdi

Notice and opprortunity

I. Rule 4 Biggest thing. Familiarize yourself with the rule

i. 4(c)(1) What documents must be served

ii. 4(a) Contents of the summons

iii. 4(d) – waive the service of summons. Instead you send by first class mail and D needs to sign and return waiver form. Saves money, but the form must be returned.

iv. 4(e)-(j) HOW papers must be served

1. Burnham

v. 4(m) WHEN they must be served

vi. 4(c)(2) WHO must serve them

vii. 4(d) How the requirements of service may be waived

II. Mullane test

i. Notice that is reasonably calculated to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.

1. Must convey sufficient info to notify the party of how and by when it should respond and must allow reasonable time to appear.

2. Means of giving notice must be such as one desirous of actually informing the party might reasonably adopt to achieve actual notice.

3. The most reasonable means available is all that is necessary (Greene v. Lindsay – notice should have been mailed not posted; Jones v. Flowers – mail was not enough notice)

4. Notice via publication: usually no unless lots of Ds and you don’t know D’s addresses.

III. Technicality: Actual notice is not enough. You need to follow the process.

IV. How it ties to Due Process – fairness. Why is there a strict process for notice – Midcontinent Woods. Having process overcomes being right.

a. Greene v. Lindsay, Flowers, Mullane, Midcontinent Woods, Khassogi

Personal Jurisdiction – In Personam

General Rule: Gives the court authority to bind a party personally – must have long arm statute.

In Fed Cts, Jx over the D is proper where the D could be subjected to the Jx of courts of the state where the federal district court is located.

a. Pertains to the authority of a court to render a decision that will bind the parties before it.

b. Limits state power

Federal?

1. 4(k)(1)(A)?

a. Yes, Then you need to figure out if court has P Jx over D by regular process: go to Long Arm Statute,

b. No, then 4(k) exceptions

i. 100 mile rule

1. Is the party one that was joined under Rule 14 or 19 and served within a judicial district not more than 100 mile s from the place where the summons issues?

ii. Authorized by Federal statutory provision ? then 4k1B

iii. Alien provision? 4k2, minimum contacts

2. Procedural issue: Possible Waiver?

a. If D has wavied P Jx by not challenging in initial response, then PJx is appropriate.

3. Long Arm Statue: Need both constitutional Jurisdiction and Long Arm statute.

i. If RI/CA, mirrors the constitution, so go directly to min contacts

ii. Enumerated Act, then do statutory analysis

1. If claim falls into long arm category then go Min Contacts. Else, no PJx.

iii. If there is no state long arm, then you go into whether or not it meets Due Process

1. 5th amendment: Federal court

2. 14th amendment: State court

4. Constitutional Analysis

a. In-state service. Served while in the state? (Burnham) – then yes

b. Voluntary appearance – waives PJx challenge

c. Exceptions to PJx: if no traditional basis for PJx is present, does an exception apply?

i. Consent

1. Forum Selection Clause (Carnival Cruise Lines v. Shute). Generally enforeceable, and only if it applies to this case.

2. State Domestication Statute (corporate registrations, non-resident motorist statutes)

a. If D knew that these type of actions would mean consent, then it is valid

b. If D not aware of the consent by doing these actions, then consent may be more suspect.

ii. Status

General Rule: will need to satisfy i and then ii to get Jx

iii. Minimum contacts (first part of S. Jx test) (Int’l Shoe co v. Washington Test)

1. Min contacts

a. Number of contacts

b. Nature of contacts

c. If activity is continuous

d. If activity is systematic

2. Purposeful availment (Hanson v. Denckla, 1958)

a. Taking advantage of the legal protections and privileges of the state

b. D must have made a deliberate choice to relate to the state in some meaningful way before she can be made to bear the burden of defending there. Unilateral contacts (P’s contacts with forum) will not do.

c. Ex: advertising there, doing business there.

3. Claim arising from contacts with forum and state

a. Where did the claim come from?

iv. Foreseeable that he would be hailed into court?

1. Stream of Commerce

a. Awareness vs. specific intent to place into stream

b. O’Connor: mere placement of product into the stream insufficient for Min Contacts. You need specific intent

i. Calder v. Jones: Calder Effects test: intentionally targeting wrongful conduct towards a forum resident will support an assertion of jurisdiction in the victim’s state of residence. (Calder v. Jones, LA star Tabloid case)

c. Brennan: placement into stream with awareness of market in forum state is sufficient for min contacts

v. Fairness balancing test – (second and last part of S. Jx test) White and O’Connor – VW, Asahi

1. Burden to D (traveling from state to state is not really an issue; it’s more like traveling from country to other state)

a. Social policies, big things

b. Foreign law

2. Interest of Forum State in adjudicating the dispute

3. P’s interest in convenient and effective relief

4. Interstate Judicial system’s interest in obtaining the most efficient resolution of controversies

5. And the shared interest of the several States in furthering fundamental substantive social policies.

vi. Pavolova case – cyberspace, Zippo.

1. Websites: passive, active, or interactive.

2. If active, then Jx, but “reserve judgment for interactive”

vii. Pennoyer v. Neff, Shoe, Asahi, BK, VW

Exceptions to Requirements of Traditional Jurisdiction Analysis

I. If a party consents to Jx (forum selection clause, Carnival v. Shute) then Jx is appropriate. Contract cases - In Civ Pro outline – it is possible for parties, even “little people” to freely enter into and be bound by contract provisions for forum selection.

a. Consent can be express, implied, or by waiver

b. Waiver: where D have waived any challenge to Jx (ie failure to object to PJx in initial response to complaint)

Challenging Personal Jurisdiction

I. Pleadings, how a person consents to Personal Jx, making a general appearance or contracting into .

II. You have to contest when you first make an appearance; the objection to PJx can only succeed if it’s timely.

III. Waiving PJx

a. Stipulations or consent agreements between parties (Carnival cruise case)

b. State procedures finding constructive consent

c. Estoppel

d. If a party makes a motion per Rule 12, but fails to raise the defense of lack of P Jx in the initial motion. (committee vs. Dennis Reimer, p 391)

IV. Does long arm statute extend the proper reach?

In rem and Quasi in –rem

• The chart on P 152

• In-Rem (property dispute)

General Rule: gives court authority to decide all claims affecting property

o Must satisfy minimum contacts standard under Shaffer v. Heitner

▪ When claims to the property itself are the source of the underlying controversy D’s claim to property located in the State would normally indicate that he expected to benefit from the state’s protection of his interest.

• Quasi in-rem

General Rule: Jx over the D personally, but only to the extent of the in-state property belonging to him that has been garnished or attached.

o They got rid of quasi in-rem. Treatment of stocks. (Shaffer)

o Now, use minimum contacts test under Int’l Shoe for quasi in rem

• Limited Appearance

o D appears in court when a suit has been brought in rem or quasi in rem and defends the case on its merits. Her liability is limited to the debt or property garnished or attached by the court

• Special Appearance

o A D appears only to contest Jx; her appearance does not constitute consent to the court’s Jx

o Cannot make 2 contests. Only Jx. If you contest something else too, then you waive your Jx

• In personam jurisdiction – being physically present IS due process. Even if no minimum contacts. (Burnham)

d. Scalia vs. Brennan – Tradition vs. Fairnes

i. Looking at trend in SCOTUS

e. Shaffer vs. Heitner & Burnham vs. Supreme Court

Subject Matter Jurisdiction

I. General Rule: Authority of a court to hear a certain class of disputes

a. Cannot be waived; must exist. Thus can be raised anytime during litigation

b. Federal Courts = limited jurisdiction

i. Most are concurrent – Jx over the matter can exist in state courts as well, unless Fed statute says otherwise

ii. Diversity Jx is ALWAYS concurrent

iii. Where only federal:

1. Antitrust 1337

2. Bankruptcy proceedings 1334

3. Patent and copyright 1338(a)

4. Securities and admiralty 1333

c. State courts = general jurisdiction

Federal Court Subject Matter Jx

II. Federal Question Jurisdiction §1331

a. Cause of action arises under the constitution, treaties, or laws of the US. Including federal common law.

b. Arises under =

i. Federal law creates the cause of action or

ii. The P’s complaint requires resolution of a substantial question of federal law (not incidental)

c. No Amount in controversy, with a few exceptions not mentioned in class

d. The federal question MUST BE a WELL PLEADED COMPLAINT, in the PLAINTIFF’S COMPLAINT, not later on by Defendant (Mottley; breach of contract = P against federal statute = D ( not Federal Jx)

e. Can be raised even if the P has a faulty claim, as long as claim is plausible (see pleadings). Then D needs to file 12(b)(6), but still ok as Fed ? Jx

III. Diversity Jurisdiction §1332

General Rule

a. The authority of the federal courts to hear cases when the parties fall within certain categories and the amount in controversy > $75,000, exclusive of interests and costs.

i. Between citizens of different states (see 1332 for specifics)

ii. Citizenship = Domicile = Mental intent to stay indefinitely + physical residence

Sub-rules/elements

b. Amount in controversy 1332(a)

i. Must be more than $75K ($75,001 ok)

ii. Amount determined when the action is commenced

iii. P must plead the amount in his complaint. D could successfully move to dismiss by challenging “legal certainty” of amount.

iv. P may not necessarily recover >75,000 (irrelevant to SMJx)

c. Diverse Citizenship 1332(a)(1)

i. Look at the time it is filed

ii. Complete diversity

iii. Citizenship = Domicile = intent to stay indefinitely + physical residence

i. Basic Rules for Diversity Jx Domicile:

a. US Citizens and resident aliens = state where they live with intent to stay indefinitely

b. US Citizens living abroad = no domicile in US, can’t sue or be sued under Fed D Jx.

c. Non-resident aliens = can be sued or sue in any court under “alienage” Jx (§1332(a)(2))

d. Corporation §1332(a)(1) = state of incorporation and state of principal place of business

i. PPB

1. Nerve center test

a. Corporate HQ, or where decision making takes place

2. Muscle test

a. Where majority of manufacturing occurs or service is provided.

e. Unincorporated association (partnership, trade union, charitable org) = has citizenship in every state of which any member is a citizen. If members in each state, then no diversity jx.

1. Multiple residences, then focus on intent to stay indefinitely –

Center of gravity factors TEST:

a. Place of employment

b. Voter/vehicle registration

c. Driver’s license

d. Current residence

e. Sites of other property or intangible interests

f. Bank accounts

g. Club memberships and

h. Mailing address

iv. Point in time to capture domicile for federal cases – when the action commences

1. The day the action is filed with the court clerk is when domicile is determined.

d. Complete Diversity rule: no Diversity Jx if any P is a citizen of the same state as any D

i. Exceptions: Statutory interpleador, supplemental jurisdiction, class actions

e. Joinder issues – amount in controversy

i. 1 P, more than 1 claim = >$75K is ok

ii. 2P, 2 claims >$75K is NOT OK, unless it’s a JOINT CLAIM (single title or right in which Ps have a common and undivided interest, ie property)

iii. If multiple Ds and Ds jointly liable or if suit of conspiracy, then P could aggregate claims to exceed $75K

Venue §1391 ,1392, 1404 (inconvenience), 1405 (cure or waiver defects)

General Rule

• After you establish Jx, then look at Venue.

• The place where a given action will be heard (which district)

• Determined as of the time the action is file (not when the claim arose)

• If venue is improper and D objects, the remedy generally is to TRANSFER the case to court with proper venue.

Sub-rules (Venue is proper in a judicial district where):

I. Diversity is the only source of Jx, then use §1391 (a)

a. Any defendant resides (his domicile), if all D’s reside in the same state, or

b. A substantial part of the events giving rise to the claim occurred, or

i. If the subject matter relates to property, where the property is located, or

c. If neither of the above, then anywhere the D is subject to PJx when the action commences (when P files the complaint in federal court)

II. Federal Question is the basis for Jx, then use §1391 (b):

a. Where any D resides, if all Ds reside in the same state

b. A substantial part of the events giving rise to the claim occurred or, if the property is the subject matter of the suit, a substantial part of the property is located, or

c. Where any D may be found , if venue isn’t proper in any other district

III. Corporations §1391 (c)

a. Residents of any judicial district where they have min contacts necessary to support P Jx.

b. Residence = any district with PPB, substantial operations, and in any district in which state incorporated.

IV. Keep in mind 3 circles of venue, PJx and Subject Matter Jx

V. Change of Venue §1404: Forum non-conveniens

a. A federal district court can transfer to ANY other district in the country only so long as:

i. Either Plaintiff or Defendant can raise to move under convenience.

ii. All parties must agree

iii. Still tried under the law of the first district because inconvenient, not incorrect.

iv. To do so is “in the interest of justice” (the measure cts use to determine)

v. The case could have been brought in the transferee court originally.

vi. Federal courts not limited by state boundaries in transferring cases to other districts.

b.

VI. Cure or Waiver defects §1406

a. Motion for improper venue

i. Grounds for dismissal (like 12b3) OR, if “in interest of justice,” then

ii. Can transfer anywhere in the country (federal court not limited to in-state transfers)

1. Tried under the law of the new district because first was improper

Removal §1441

General Idea

• Moving a case from state forum to a federal forum. Usually because it could have been federal but Ps for some reason chose state. Only the D can remove.

• Cannot move from federal to state.

• Determined AT THE TIME THE PETITION TO REMOVE IS FILED (Caterpillar)

Sub-ideas

• D’s petition can include:

a. Allegations of citizenship

b. Amount in controversy (if not clear in P’s complaint)

c. Any fraudulent joinder the P has undertaken to avoid removal

Rationale

• For diversity case, protect non-local D’s from bias (thus, no federal to state removal, only vice versa)

• For fed Q case, removal gives D the ability to have the case litigated in its “natural” forum

FRCP Rules

I. What actions may be removed from state to federal court? §1441(a)

a. Any action brought in state court that could have been brought originally in federal district court

b. Exception: in diversity cases, the action is removable only if no D is a citizen of the state in which the action was brought.

c. Only the D may remove; P gets first choice in filing complaint.

d. If removal is possible and the D files a timely petition of removal, then the case MUST be removed to federal court.

II. Properly removable to federal court. Which federal court to remove to? §1441(a)

a. The district court of the US for the district and division embracing the place where the state action is pending

Non-removable actions

I. USC §1445(a): FELA and Jones Act cases

II. USC §1445(b): Actions against carriers for delay, loss or damages of shipments, where controversy is less than $10K

III. USC §144(c): workmen’s compensation proceedings

IV. USC §77v(a): Securities act claims for recovery for misrepresentation

V. USC §216: Fair Labor standards act cases (courts are split about allowing removal)

VI. USC §1445

Remand – bringing it back again to state court after its been removed to federal court

I. Mandatory Remand §1447(c)

a. If Statutory req’s for removal are not satisfied, the federal judge MUST remand back to state court.

II. Discretionary Remand §1367(c)

a. If federal trial of the case would be Jx’lly proper, but unwise, the federal judge has the discretion to remand the case back to state court

Pleadings

I. History of pleadings (basics)

II. Burden of Pleading

III. Burden of pleading is not the same as burden of persuasion (Renhquist will put burden of persuasion on the Plaintiff)

a. Burden of pleading: In complaint by P or answer by D or something later? Allegation

b. Burden of proof or production: Coughing up some evidence; producing something (ie smoking gun memo). Produce evidence admissible at trial supporting an allegation

c. Burden of persuasion: Convince the fact finder of your way or not. More likely than not all the elements have been met in a claim. This happens during trial. Whether or not that evidence is persuasive at trial.

IV. Basic pleadings: Rule 7, Forms

a. FRCP 7: A pleading is the complaint, the answer, and the reply, if any

b. Pleadings lead the way to discovery. Pleadings can be the gatekeeper or floodgates to this expensive next step.

c. Elements of a claim Rule 7:

i. Legal cause of action

ii. Facts supporting claim

iii. Damages (in most cases, not including strict liability). Confirms legal claim. Dirty looks not good enough.

d. Standard for Pleadings from 1938 to 1997: Conley v. Gibson

e. Rule elaboration Pleading: Swierkiewicz, 2002 case

i. The Court says you don’t need specific facts to establish a prima facie case. All you need to do is Rule 8, short and plain statement. The rejection of each and every element is still there. You don’t have to address each and every elt, but it’s a good idea generally to try to do this.

f. New Standard for Pleadings 1997: Bell Atlantic v. Twombly

g. Short and Plain pleading

i. P303 “requirement of…more than a statement of conclusions even without the support of Rule 9(b)

ii. Plausible not merely possible; not necessarily probable.

V. Special pleadings: Rule 9

a. “Qualified immunity” (Scultea v. Wood, P 300), or “heightened pleading standard” under §1983 (Leatherman case, p 295)

1. More demanding/detailed pleading than normal; LIMITS THRESHOLD

2. Way to prevent unnecessary and burdensome discovery against government defendants (Rule 7(a) and Rule 12 (e), but NOT Rule 9(b))

b. 9(b): for Securities Fraud Litigation

i. “Stated with particularity,” indicates need for more detail. Further, fraud and 10(b), Rule 10-5, both directed at fraudulent acts. You need to have both Fraud and Intent (Scienter)

1. Elements of Fraud (needs to be specific and detailed):

a. P must set forth what is false or misleading about the statement/omission

b. Why it is false (needs to explain)

2. Intent (can be averred generally)

a. Malice, Intent, knowledge

ii. Prohibits corporate officers and directors from misleading public through misrepresentations via omissions in public statements.

iii. General Rule: 9(b) pleading standards may be relaxed when the opposing party is the only practical source for discovering the specific facts supporting a pleader’s conclusion (p 309; also similar issue in Bell Atlantic)

1. In this instance, court allows limited discovery before P pleads with particularity

iv. Policy concerns: Strike Suits

1. Many Ps file in hopes of settling, how many frivolous suits of this manner if 9(b) is too relaxed??

v. Private Securities Litigation Reform Act of 1995 (New Pleading requirements)

1. P must state with particularity facts giving rise to a strong inference that D acted with the required state of mind.”

2. More stringent (like the 2nd circuit). Being a greedy business tycoon won’t give you a suit, but materially departing from GAAP principles will.

3. Increases front end cost to P (more pre-filing investigation needed for more detailed pleading) ( new suits more likely where precedent exists

VI. Response to a Complaint

a. T’aint So: Deny factual allegations

i. The Answer P12, Form 20, Third Defense

b. Yes, But: Affirmative Defense, Confession and avoidance; Substantive reply

i. The Answer

c. So What!: M2D for failure to state a claim that is legally actionable

i. The Answer

ii. Motion to Dismiss

d. Right back at ya: Counter claim

i. Can raise counterclaim in an Answer

e. Not here: Improper jurisdiction/venue: Waivable defenses

i. Pre-answer motion or

ii. Answer

iii. Must include Jx objection in whichever document is filed first

VII. Pre-Answer Motion FRCP 12(b)

a. FRCP 12(b) and Form 19: A motion is a request that the court enter an order of some kind

b. Alternative to answering a complaint (if not granted, then you file answer)

c. Optional, acts like a shortcut when you have a viable defense.

d. Very often made, very often ends a lawsuit.

e. I move for this court to dismiss this case (and you use the below). You can have more than one reason.

f. 12 (b) 1, 12(b) 2, 12(b) 3

i. Immediate dismissal based on lack of Jx or Venue.

g. 12(b) 5 – improper service

h. 12(b) 7 – failure to join all relevant parties

i. 12(b) 6 – see below

j. Why file motion and answer when answer may be enough?

i. Motions could defeat the case at an earlier stage than an answer (no discovery then)

1. Challenging subject matter or Personal Jx

ii. Rule 12 (b)(6): challenges substantive merits of complaint.

1. Similar to common law demurrer

2. Fact alleged are assumed true at this point, must dismiss on lack of legally enforceable right.

3. Downside is that if you send this, you are in effect letting P know the defects/flaws of her argument. If it doesn’t work, they know your defense.

4. Further, P can send an amended complaint and continue the suit

iii. FRCP12 (c): Motion for judgment on the pleadings

1. Same as 12(b)(6) except for timing. This is filed after the pleadings are closed; after complaint, answer, and reply have been filed.

iv. FRCP 56: Motion for summary judgment

1. Looks outside the pleadings to discover that P’s claim is “hopeless”

2. Formerly called a “speaking demurrer”

3. Presents information (usually via affadavit) that shows trial will be pointless because no material issue of fact exists.

k. 4 parts to a motion (sometimes 5):

i. A notice of the motion

1. Tells opponent when the motion will be heard

ii. The motion

1. Specific request that the judge enter an order

iii. A certificate of service

1. Your averment to the court that you served the motion on your opponent, and how

iv. A memorandum in support of the motion

1. Legal brief explaining to the court why you believe the motion should be granted under the applicable facts and law.

v. An Affidavit (only if your motion rests on facts outside the pleadings)

1. Sets forth the facts on which the motion depends

VIII. Rule 12 g and h say that 4 of the 12b defenses waived if not brought up immediately.

a. Px, Venue, form of process, or method of service of process

IX. Answer

a. Structure

i. Denial

ii. Defenses

iii. Counterclaim

iv. Motion to Dismiss

1. Failure to state a claim

v. Procedural objections

1. Bad notice

2. Jurisdictional issues

3. Venue problems

b. Function

c. If an issue has been removed from a case by an admission in the answer, that it is error to receive evidence which is material solely to the excluded matter (Fuentes V. Tucker, CA 1947 p 324)

i. Subrule: Introduction of evidence of admitted facts is permissible in cases where:

1. the admission is ambiguous in form or limited in scope or

2. where, during the trial of a case, a party seeks to deprive his opponents of the legitimate force and effect of material evidence by the bald admission of a probative fact.

X. RULE 15

a. A1 – as a matter of course

i. (a) before being served with responsive pleading or

ii. (b) within 20 days after serving the pleading if responsive pleading not allowed and the action is not yet on the trial calendar

b. A2. After freebie time, the court “should freely give leave when justice so requires”…

c. Relation Back section

i. 15(1)(a): When the law that provides the applicable statute of limitations allows relation back

ii. 15(1)(b): The amendment asserts a claim or defense that arose out of the original complaint (Barcune v. City of Flint; statute of limitations ran out, so sexual harassment claims turned down as unrelated to original discrimination claims)

iii. 15(1)(c): If section b is satisfied, can change the name of a party if:

1. within 4(m) timing

2. new party recived notice of action that it will not prejudiced in defending on the merits, and

3. new party knew or should have known that action would have been brought against it but for a MISTAKE on party’s proper identity

Zielinski v. Philadelphia Piers, Inc (mistaken identity – D should have been Carload, but instead was PPI; they discovered this too late in the game, so per equitable estoppel, the court ruled that PPI would still be tried even though PPI technically NOT proper D)

XI. RULE 16: Managerial part of running the case – just a real world note for us, and tension btwn 16 and 15

a. In litigation, this rule decides your life.

b. Judge gets to decide (as managerial role), scheduling, setting deadlines

i. When is discovery done

ii. When should see pre-trial motions

c. B4 A judge can modify a schedule for good cause (compare to 15A2)

XII. RULE 11: MUST SIGN; No frivlous law suits or SANCTION!

General Rule

a. Need to have attorney or client sign EVERY document presented to the court.

i. Signing is no longer a meaningless act; it denotes merit

ii. Applies to all pleadings but we tend to see it more often at the complaint level.

Specifics

b. Rule 11: Signing Pleadings (will need to know which part is being violated per hsieh)

c. Section A – you need to sign it

d. Section B – by signing it, you are certifying that to best of your knowledge formed under reasonable inquiry of circumstances:

1) No improper purpose (ie harassment, delay, increase costs, etc. purpose is a very vague word)

2) Not frivolous complaint; warranted by existing law (legal contentions)

3) Factual contentions have evidentiary support

4) Denials of factual contentions

Standard and analysis

e. Standard of Objective Reasonableness (Business Guides, p 370)

i. Applies to anyone who can sign the papers (Attorneys and clients)

f. What constitutes abuse of discretion? (Kraemer v. Grant County, p374)

i. If discovery is necessary to establish a claim, then it is not unreasonable to file a complaint so as to obtain the right to conduct that discovery (in apposition to Rule 8, short and plain statement)

g. Rule 11 only applies to federal district court. Once it gets to appellate court, it’s a different set of rules

Difference between Rule 8 and Rule 11 (Tensions between the rules)

If you make it too risky for a lawyer to file these suits, they won’t do them anymore.

|Rule 8 |Rule 11 |

|SHOW Short and Plain |KNOW and Reasonable effort |

|Fairness, Truth-seeking |Preventing Frivolous cases |

| | |

Thus for complaint filing: need to know more to pass through Rule 11, than what you have to show to pass Rule 8.

How appellate courts view Rule 11. Now, under a may vs. shall standard. Appropriate sanctions – purpose to deter attorneys from violating the Rule 11 sanction. Deterrence of conduct not just monetary. Sometimes, they will make sr partners in your firm to sign a paper, or post your wrongdoing in the newspaper, or giving money to the court.

How to find appropriate sanction? Factual analysis to determine what is the appropriate sanctions?

Standard of Review on Appeal

“abuse of discretion”: the lower court’s decision should be treated in great deference. They look at the decisions made below “de novo,” new.

Deferential with respect to facts

Looks at it de novo

Applies a specific standard – extremely deferential. They presume they get it, and presume they are experts, and unless they did something clearly wrong, the appellate court will leave the district court’s decisions in place.

In order to do a factual contention, then you need to look at the law records (too many little facts though so generally judges will look at it big picture)

Saltany

Rule 11 only applies to federal district court. Once it gets to appellate court, it’s a different set of rules

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