Chapter 4: Drafting and Filing the Complaint
This chapter discusses several basic issues relating to the drafting and filing of a federal court complaint, including the mechanics and strategy of drafting a complaint, as well as selection of parties, alleging facts and framing the request for relief. Sanctions should not be an issue for well-researched and factually-substantiated complaints. Nonetheless, the legal aid attorney should be familiar with the ethical dimensions and standards of filing a complaint in federal court. Indeed, this Manual refers frequently to Rule 11, offers suggestions for complying with the rule, and advises legal aid attorneys to temper zeal and belief in remedying apparent injustices with reflection on the rule’s implications for filing complaints and subsequent papers with the court. Finally, this chapter reviews the mechanics of filing a complaint in federal court and the procedure for filing for in forma pauperis status.
4.1 Drafting the Complaint
The complaint frames the scope of the litigation. As detailed in Chapter 1 of this Manual, the complaint sets forth the facts, the legal theories, the relief requested, and advances the core theory of the litigation. While the attorney’s pre-litigation memo and, later, trial notebook may serve as her personal strategic guide, the complaint serves as the litigation map that will determine the route the parties take as they navigate pre-trial motions, discovery, settlement, and trial. It will also serve as the first public face of the litigation, describing the case to the parties, the media, the judge, the clerks, and the opposing counsel and will set the tone for future discussion and communication about the case.
While the complaint’s role within a strategic framework remains as true as ever, two recent Supreme Court cases, Bell Atlantic v. Twombly/1/ and Ashcroft v. Iqbal/2/, require the legal aid attorney accustomed to liberal notice pleading to rethink her approach to complaint drafting. Together, Twombly and Iqbal have entirely reinterpreted Federal Rule of Civil Procedure 8(a) and impose a heightened pleading standard requiring that allegations of unlawful conduct be plausible, rather than merely possible. Twombly and Iqbal have spawned an enormous volume of academic commentary/3/ and caselaw, as well as bills in Congress to restore prior notions of notice pleading./4/ Every legal aid attorney must become familiar with Twombly and Iqbal and their circuit’s evolving interpretations of the new “plausibility” standard./5/ When drafting complaints, attorneys must anticipate motions for dismiss for failure to meet this standard.
Prior to drafting the complaint, the advocate must conduct a reasonable investigation under the circumstances. We turn first to a complex aspect of that investigation – contacting employees of the prospective adversary.
4.1.A. Pre-Litigation Investigation
Pre-filing investigation may include client interviews, interviews of witnesses, review of public and other records, correspondence with opposing parties, and requests for information pursuant to public records or Freedom of Information Act provisions. When possible, use pre-litigation investigation rather than formal discovery to establish facts./6/ Even when the investigation requires the cooperation of adverse parties, that cooperation is more likely to be forthcoming before suit is filed.
A thorough investigation would often benefit from interviewing current or former employees of a potentially adverse corporate entity or government agency. Rule 4.2 of the American Bar Association Model Rules of Professional Conduct governs the permissibility of ex parte contacts with represented persons by channeling most communications through counsel. Rule 4.2 specifies:
In representing a client, a lawyer shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order./7/
The primary concern behind the Rule 4.2 proscription “is to avoid overreaching caused by disparity in legal knowledge; it is designed to protect lay parties.”/8/ A violation of your jurisdiction’s ethical rules prohibiting ex parte contact with a represented party or person may carry sanctions that include preclusion of the evidence obtained from the contact, disqualification of counsel, or even dismissal of the action./9/ When the represented person is an individual opposing party, application of the Rule’s no-contact provisions is relatively straightforward. Its application to corporate or governmental employees that work for an opposing party is less clear and has been the subject of a great deal of commentary./10/
The comments to Model Rule 4.2, significantly revised in 2002, provide some clarification on the scope of the no-contact prohibition with respect to employees of an organizational party:
In the case of a represented organization, this Rule prohibits communications with a constituent of the organization who supervises, directs or regularly consults with the organization’s lawyer concerning the matter or has authority to obligate the organization with respect to the matter or whose act or omission in connection with the matter may be imputed to the organization for purposes of civil or criminal liability. Consent of the organization’s lawyer is not required for communication with a former constituent. . . ./11/
The comment thus establishes three situations in which ex parte contact with an organizational employee is prohibited: (1) if the “constituent” is regularly working with the organization’s attorney with respect to the matter being litigated; (2) if that person is authorized to “obligate” the organization regarding the matter; or (3) if the person’s act or omission with respect to the matter “may be imputed” for purposes of liability to the organization./12/
While a number of states have adopted ABA Model Rule 4.2, many, including the District of Columbia, have not. Before contacting an employee of a potential corporate adversary, you must consult your jurisdiction’s rule of professional conduct, and cases and bar opinions interpreting it. There are a wide range of applicable rules, from a blanket prohibition on contact through rules that are quite permissive. Contacting employees of government entities presents additional concerns: “[i]ndeed, while for most litigation purposes the law treats a government entity just like any other party . . . unlike a corporate party, the government also has a duty to advance the public’s interest in achieving justice, an ultimate obligation that outweighs its narrower interest in prevailing in a lawsuit.”/13/ The comments to Model Rule 4.2 also reinforce the constitutionally protected right to petition the government: “communications authorized by law may include communications by a lawyer on behalf of a client who is exercising a constitutional or other legal right to communicate with the government.”/14/
The cases are generally more permissive with respect to former employees. The Model Rule 4.2 comments provide: “consent of the organization’s lawyer is not required for communication with a former constituent.”/15/ Numerous decisions have held that an attorney may communicate ex parte with unrepresented former employees of a corporate party, even if they were in a managerial position at the time of the incidents giving rise to the litigation. This rule applies unless the former employees’ own conduct was involved in the disputed events, or they had access to corporate confidences./16/ Once a managerial employee leaves the organization, she no longer speaks for the corporation, her admissions no longer bind the corporation, and she may, therefore, be interviewed ex parte without notice./17/ Other former employees may also be interviewed, unless their act or omission in connection with the particular matter may be imputed to the organization for purposes of civil or criminal liability./18/ No effort should be made, however, to induce the former employee to violate the attorney-client privilege to the extent his communications as a former employee with his former employer’s counsel are protected by it.
Advocates should be aware of the case law in their jurisdiction regarding the ethical constraints of contacting organizational staff of adverse parties. The practical difficulty of interpreting these standards remains. First, a lawyer seeking an interview often cannot know in advance whether the individual is covered by Rule 4.2 or not; often only the interview itself discloses the interviewee’s relationship to the organization and to the underlying transaction. Second, the rules of respondeat superior and vicarious admissions against interest, if applicable, are notoriously fuzzy, thus making it difficult to apply Rule 4.2 even when the facts are clear. Third, these rules differ somewhat from state to state and as between state and federal law. At bottom, if it turns out that the interviewee is covered by Rule 4.2, conducting the interview is prohibited; if the interviewee is not covered, conducting the interview is part of the lawyer’s duty of diligent representation, and she should actively seek whatever legitimate advantage may be had by conducting the interview outside the presence of opposing counsel. Yet, it is difficult to determine which path to take in situations where these principles are to be applied are varied and often unclear before the interview./19/
4.1.B. Purposes of the Complaint
The complaint has at least five purposes: 1) to commence litigation, 2) to tell a persuasive story to a varied audience, 3) to sufficiently set forth the jurisdictional, factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss, 4) to enhance the usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal and informal discovery and 5) to lay the groundwork for the resolution of the case through settlement.
4.1.B.1. Commencing the Litigation
A civil action commences upon the filing of the complaint with the court clerk./20/ The filing date of the complaint ordinarily determines whether the lawsuit is within the applicable statute of limitations. The date of filing also sets the clock running for other dates, such as the deadline for serving the defendant with the summons and complaint./21/ The date of service then triggers the timing of a series of pretrial procedures./22/
When to file the complaint is a decision to be made based on factors beyond the need to meet the statute of limitations. Of course, if your client is facing an irreparable injury, you will need to file the complaint promptly along with or immediately followed by a motion for temporary and preliminary relief. If immediate harm is unlikely, the legal aid attorney may need to balance the client’s interest in a prompt resolution of the matter with the risk that the quick filing of a complaint may actually prolong the case in the long run. While complaints can be amended fairly liberally,/23/ doing so takes time and may ultimately delay resolution of the case. Often, the best approach is to spend the time needed initially to file a polished and thorough complaint.
You must also bear in mind that litigation is like a chess match. While the complaint is your first move, you must have subsequent moves in mind. Such tactics include filing a prompt motion for class certification, a motion for summary judgment on cases involving little or no discovery, or pressing for a prompt initial conference and discovery. Once you have contemplated your subsequent moves, reexamine your complaint to make sure that it adequately supports these strategies. These strategies may call upon you to begin drafting additional documents before the complaint is filed.
4.1.B.2. Telling the Story
The complaint is the first opportunity that an attorney has to tell the client’s story and to explain why the lawsuit has been filed. It is the first document that will be seen by the judge and law clerks and will be referred to by them repeatedly throughout the case. The complaint may also have an audience in the clients, the defendants, opposing counsel, the public, the media, and other observers. The complaint must therefore be logically and narratively compelling so that, when the reader reaches the final page, he feels that a wrong has been committed, that your legal claims are sound, and that the relief you are requesting is reasonable and deserved. In addition, the complaint is your first opportunity to present yourself as the attorney for the plaintiffs; thus, you want it to be error-free, well-written, persuasive, and reliable.
The best place to give a clear and concise summary (or core theory) of your client’s story is in the complaint’s preliminary statement. It is the legal “sound bite” that introduces the more technical and complex matters that follow and is what the judge and others rely most upon in understanding what your case is about. It should be focused and written in plain language. Drafting the preliminary statement is truly an art because, although it is neither an argument nor a detailed rehashing of the contents of the complaint, it must be convincing.
The balance of the complaint continues to tell the story of the case. The “facts” section is the primary place where the story is fleshed out. As in an affidavit, each paragraph of the factual allegations should set out a simple, objective statement of fact./24/ Every fact that is necessary to plausibly support each of the legal claims, and the standing of the plaintiffs to advance them, must be included. It should allege with some precision which legal requirements have been violated, what defendants have done or have failed to do, and what relief is sought. You should “cross check” the complaint against your litigation and trial plan and, as you draft the complaint, have an understanding of how each fact alleged will be proved. Thus, as both a matter of style and strategy, you should generally avoid prefacing allegations with “upon information and belief.” If, however, an allegation lacks evidentiary support but is “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,” it must be specifically identified in the complaint./25/ Once the factual portion of the story is told, the sections on legal claims and relief should flow as logical extensions of the facts bringing the reader along with you.
When drafting, never merely copy allegations from another complaint without clearly understanding whether those allegations are appropriate in the case and verifying that the allegations comport with the current law in your district or circuit. Ask colleagues in your office to review the complaint as a double-check for factual clarity and legal sufficiency.
4.1.B.3. Protection Against Motion to Dismiss
The complaint must be sufficient to survive a motion to dismiss. Your thorough review of the law in the substantive area involved should reveal to you the typical grounds for motions to dismiss and the potential weaknesses in your case. It is helpful to imagine yourself as the associate in the opposing counsel’s firm or office assigned to draft a motion to dismiss your case, thus providing yourself with an opportunity to identify and address your complaint’s weaknesses before you file it.
Prior to 2007, the legal aid attorney could take comfort in the notion that all “the Rules require is a ‘short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the ground upon which it rests.”/26/ For fifty years, the Court followed the principle set forth in Conley v. Gibson that complaints that supplied such notice should not be dismissed unless it is “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”/27/ The Supreme Court rejected efforts to impose heightened pleading standards as recently as 2002. In Swierkiewicz v. Sorema,/28/ the Court held that a plaintiff pleading Title VII and Age Discrimination in Employment Act claims was not required to plead each element of a prima facie case of discrimination./29/ Noting that the McDonnell Douglas standard was an evidentiary, not a pleading requirement, the Court held that the complaint need only give “fair notice of the basis for [plaintiff’s] claim.”/30/
In Twombly, a 2007 Sherman Act case, the Court made it quite clear that the complaint must do more than merely provide notice to the defendant. Rather, it held that a complaint must contain facts that “plausibly suggest” a conspiratorial agreement rather than facts simply alleging conduct consistent with such an agreement./31/ Burying the traditional Conley formulation, the Court cautioned that “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”/32/ The complaint must do more than simply leave open a possiblity that the plaintiff could prove its case. Instead, the pleading must contain detail sufficient to create a reasonable expectation that discovery will surface evidence of wrongdoing. The Court insisted that it was not imposing a heightened pleading standard, but instead required allegations of sufficient detail to “cross the line from conceivable to plausible.”/33/ The Court’s clear repudiation of the Conley “no set of facts” language and extended discussion of the costs of discovery underscore a more rigorous pleading standard./34/
The Court’s 2009 decision in Iqbal took plausibility pleading beyond antitrust cases and imposed it quite rigorously. Iqbal was a Bivens case brought by a Pakistani arrested after 9/11 and housed in a maximum security prison under allegedly harsh conditions. To prevail, Iqbal had to plead and prove that the defendants at issue, the former Attorney General and the FBI Director, had adopted or approved of detention policies for the purpose of discriminating against him on the basis of religion, race or national origin./35/ The Court explained that “the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”/36/
With respect to the “plausibility” standard described in Twombly, Iqbal explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”/37/ The Iqbal Court noted that “[t]he plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'”/38/. Iqbal’s significance lies in operationalizing the plausibility standard.
The Court in Twombly acknowledged that a court must treat the complaint’s factual allegations as true, “even if doubtful in fact.”/39/ But, in Iqbal, the Court cautioned that courts need not accept as true “threadbare recitals of the elements of a cause of action, supported by mere conclusory statements.”/40/ Such recitals are regarded as legal conclusions not subject to the presumption of truth. The Court set out a procedure for separating legal conclusions from factual allegations:
[A] court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief./41/
This procedure requires the court to engage in a two-step analysis that seems to go beyond what was required in Twombly. First, the court should identify which statements in the complaint or counterclaim are factual allegations and which are legal conclusions. Legal conclusions should not be assumed to be true and may, essentially, be discarded for purposes of the second step: assessing the factual assertions. Those assertions are not evaluated in overall context, but are stripped away from the discarded legal conclusions. “Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”/42/ The Court regarded the complaint’s allegations in Iqbal as conclusory because, in context, the Court discerned a more likely explanation for the detentions: Iqbal was rounded up as an undocumented alien because of his possible connections to the perpetrators of 9/11 as part of a terrorism investigation, rather than because of discriminatory animus.
The plausibility principle may have had particular impact in Twombly and Iqbal given the nature of the claims asserted in those cases. In Twombly, there was no direct evidence of collusive behavior in violation of the antitrust law. Rather, the plaintiffs alleged a scenario consistent with such behavior when, at the same time, there existed another equally or more plausible explanation for the apparent lack of competition that was entirely innocent in nature. Without factual allegations underlying an inference that the defendants’ behavior was collusive, the plaintiffs fell short of offering allegations that made their theory a plausible one in light of the alternative. Similarly, in Iqbal, the Court suggests that there was no direct evidence of unlawful discriminatory intent; that intent must be inferred from other facts. The facts alleged by the plaintiffs, the Court believed, were equally or more consistent with an explanation that the defendants acted without discriminatory intent. In short, no facts were alleged to bring the inferential gap between the behavior and the intent or motive for that behavior.
The Twombly/Iqbal standard may be particularly problematic in cases in which the defendant is the custodian of most of the facts underlying the complaint or cases turning on mental states of intent or motive. It is difficult to discern how to allege unlawful intent or purpose without using language, like “knowingly” or “willfully,” that is not conclusory in nature. Without discovery, plaintiffs will have considerable difficulty unearthing support for such allegations, but such allegations will not permit the plaintiff to proceed to discovery. Iqbal also portends a significant expansion in judicial power and discretion. Rather than merely determining whether a complaint was sufficiently detailed to afford the defendant notice, a fairly objective inquiry, the federal judge must now use their “judicial experience and common sense” to determine whether allegations are more subjectively “plausible.” In a sense, “plausibility” is in the eye of the beholder. Some judges may find challenges to the behavior of governments or corporations implausible because the allegations do not conform with intuitive or expected understandings./43/
For the legal aid attorney, Twombly and Iqbal have significant consequences./44/ They call for more detailed and fact-specific complaints, which, in turn, may require more rigorous pre-filing investigation and preparation. Lurking below the surface of Twombly and Iqbal are Rule 11 implications; how certain must the legal aid attorney be of the more detailed factual allegations required to satisfy the plausibility standard?/45/ The judge drawn to hear the case may have an immediate impact on the chances that the defendant will file a motion to dismiss and prevail on that motion. An increased possibility of a motion to dismiss may alter settlement dynamics. For new legal services attorneys, close consultation with senior staff attorneys is necessary to navigate through these more difficult and uncertain waters./46/
4.1.B.4. Enhancing Usefulness of the Answer and Discovery
The manner in which the complaint is drafted can enhance the usefulness of the opposing party’s answer and facilitate initial disclosures. The defendant has a duty to answer factual allegations affirmatively and in good faith, and a plaintiff’s factual assertion is deemed admitted by the defendant when not specifically denied in the responsive pleading./47/ Hence, the more specific and defined your factual allegations are, the less “wiggle room” your adversary has to answer those allegations evasively. As in most legal drafting, particular potential pitfalls are the use of compound statements, adjectives and adverbs, the conditional tense, and statements that include assumptions or facts not yet admitted or proved.
Similarly, the scope of permissible discovery turns on relevance to the claims advanced./48/ The more complete your factual allegations are, the less room the defendant may have to argue that the discovery you seek exceeds the bounds of relevance to the claims made. To be sure, there may be cases in which strategy, timing, knowledge of the client or the degree of available pre-filing investigation possible under the circumstances, combined with the dictates of Rule 11, permit only general allegations to be made in the complaint. The presumptive goal of specificity can legitimately be overridden in particular cases.
4.1.B.5. Basis for Settlement
You will be thinking about settlement from the moment you begin to prepare the litigation. The complaint serves as the basis and framework for settlement throughout the case, especially if prompt settlement is desired or possible. Although there are exceptions when settlement can provide more relief than you can request from the court, in general, the relief portion of the complaint serves as the outside boundaries of what you can request from the defendant in settlement negotiations. Thus, consider including in the complaint not only what you want to receive but also what your opponent does not want to provide. Relief that may be of relatively little importance to you may be of great concern to your opponent. Giving up that relief may prompt more significant concessions by the defendant. The quality of the complaint will also serve to enhance your actual and perceived bargaining position as it reflects your skill as a litigator, the thoroughness with which you are approaching the issue, and the factual and legal strength of your case.
A detailed complaint may serve to the plaintiff’s benefit in court-ordered mediation processes./49/ A well-drafted complaint followed by a typically boilerplate answer effectively tells a story from the plaintiff’s perspective to the third-party neutral. Atmospherically or substantively, this may create a measure of momentum for encouraging settlement on terms more favorable to the plaintiff.
4.1.C. Caption and Parties and Jury Demand
All components of the complaint deserve thought, including the case caption. For instance, the order in which the individual plaintiffs and defendants are listed may be important to the participating organization or may advance a public relations objective that emphasizes the compelling facts of the lead plaintiff. In the Lightfoot v. District of Columbia case, Elizabeth Lightfoot was selected as the lead plaintiff because of the strength of her individual facts, her commitment to the case, and capacity and willingness to serve the interests of the putative class well, both in and out of court. As required by Federal Rule of Civil Procedure 38, you should put your jury demand in the complaint, and most attorneys will do so in or near the caption of the complaint.
4.1.C.1. Individual, Group, and Class Plaintiffs
The first named plaintiff in a case involving more than one should be one best able to surmount jurisdictional challenges, such as standing and mootness, and most likely to see the case through to conclusion. Frequent changes to the case caption throughout the case can prove confusing. You may also wish the first plaintiff to have a particularly compelling set of facts and to be effective at articulating it publicly. At the same time, the concerns of other named plaintiffs may suggest a neutral ordering system.
After the preliminary statement and statement of jurisdiction, the complaint should identify the parties. The plaintiffs should be identified first, and in such a way that their standing and the relief they seek seem self-evident. The defendants should then be identified, indicating either the injury they inflicted or the role they played in the facts underlying the complaint.
The plaintiffs should include the people injured by the conduct that led to the litigation and who may benefit from the relief sought or granted. That relief may be retrospective or prospective in nature, or both. Whether a class action is appropriate will depend on the nature of the challenged conduct, the relief sought, and difficulties of joinder./50/ If so, careful selection of class representatives is required, and the complaint will include class allegations. The complaint should be accompanied by a motion for class certification. That motion should be heard as quickly as possible as the court must determine whether to certify a class “at an early practicable time.”/51/
The plaintiff or plaintiffs may proceed anonymously where there is a good reason to do so. Such reasons may include allegations about the mental health, medical, or sexual history of the plaintiff or other sensitive information the revelation of which an association with the plaintiff would cause harm or embarrassment. If you choose to file anonymously, you file a copy of the complaint with the plaintiff’s name, a motion to the court explaining the reason for filing anonymously, and a complaint with a substitute name (e.g., Jane Doe). The order you prepare includes instructions for sealing the original complaint and permission to proceed henceforth with the substitute name. The defendant will be served a copy of the original complaint—the defendant is entitled to know who brought suit—and a copy of the signed order, which also requires the defendant to keep the name of the plaintiff confidential. Only in rare circumstances does the defendant object to an order of anonymity. Check the local rules of court for local practices regarding anonymous filing and redacting sensitive information.
The defendants should be identified with a close eye toward relief. As a rule of thumb, if you seek damages, seek them from the person who inflicted the injury leading to the claim for damages. By contrast, if you seek injunctive relief, you must name the highest-level officials, usually the department heads, since they can offer the most thorough and far-ranging relief. Injunctive relief starts at the top; damages start at the bottom. The bedrock principle is to include as defendants everyone necessary for relief.
The allegations as to the defendants should include not only their past, present, or future conduct but also their authority. This is obvious when you are seeking injunctive relief since officials may be enjoined only to act within their authority. But it is equally true when damages are being sought. You must particularly allege an official’s authority if you are seeking damages not only from that official but also from the official’s superior or the municipality or agency employing the official. Misconduct beyond the scope of employment rarely leads to vicarious or respondeat superior liability. Thus, allegations as to authority are important for both injunctive relief and damages.
Defendant classes may be named under Rule 23. This is equally true in many state courts. Naming defendant classes may be of considerable value when you bring an action against a city or county in a state where similar practices are followed in a number of cities or counties. In federal court, a state may not be sued in its own name. Since Ex parte Young, complaints for injunctive relief are filed against a state official, not the state itself./52/ Suits against a state official in federal court may not seek damages from that person in that person’s official capacity if such damages ultimately would come from the state treasury.
4.1.D. Pleading Facts and Theories
For the strategic reasons outlined above, the facts should be drafted so that they tell a clear and compelling story guiding the reader to believe in the obvious need for relief. Casting the story in human terms makes it more immediate and, therefore, more compelling. As explained above, this factual presentation must be made in sufficient detail to satisfy the new plausibility standards and should be framed in terms that will resonate with the judge’s experience and common sense. Where possible, refer to the plaintiff by name rather than by legal designation. Defendants can be personalized when you are emphasizing their acts as individuals, or they can be depersonalized to remove sympathy for them and remind the reader of their essential nature as an institution or bureaucracy. If possible, a non-attorney unfamiliar with the case should review the facts to make sure the story is clear and convincing.
A chronological framework may support the clarity of your presentation, but other narrative devices may be effective as well./53/ Brevity and clarity may also be enhanced by attaching supplementary materials, such as notices, and by incorporating them by reference. As in any writing, pacing is an important element of your drafting. For instance, if the age and physical condition of your plaintiff is critical to your case, you may devote separate paragraphs to stating the plaintiff’s age, describing each physical or mental impairment, and the effect each impairment has on the plaintiff. On the other hand, if these facts are irrelevant to your legal claims, you may choose to include a range of identifying and background information in a single paragraph, which introduces your client without distracting from the more important core of the story you need to tell.
Although you are likely to have several claims, you will have one core legal theory—the legal theme of the case. That theme should be sounded in the complaint’s preliminary statement in a succinct but persuasive way. An example of a poor preliminary statement appears in the Jones v. Clinton complaint: “Plaintiff Paula Corbin Jones, by counsel, brings this action to obtain redress for the deprivation and conspiracy to deprive Plaintiff of her federally protected rights as hereafter alleged, and for intentional infliction of emotional distress, and for defamation.” The statement is written in overly stilted, legalistic language and is devoid of any mention of a core theory or persuasive connection between the facts and the legal claims. Were this not a case destined to capture the attention of the nation, the statement alone would not have commended the continued reading of the complaint.
Following the chronology of facts, the complaint should set forth the legal theories that lead to relief. These may be constitutional, statutory, or regulatory. They may include both federal and state theories. You must draft the theories clearly and cite their statutory, regulatory, or constitutional bases. In complex regulatory cases, the legal aid attorney should reduce legal complexity to a minimum in the body of the complaint. The essential elements of the statutory and regulatory scheme should be set out in the complaint, but a detailed discussion should wait for briefing.
In drafting your legal claims, you are likely to have choices about grouping claims together or listing them separately. For instance, a claim might be “Defendant engaged in unlawful discrimination by denying plaintiff an apartment because of plaintiff’s national origin in violation of” and then listing the various statutes, regulations, and other sources of law. Or a claim might be stated as “Defendant violated the Fair Housing Act by (a) refusing plaintiff an apartment and (b) giving plaintiff information different from other applicants.” The key to well-crafted pleading of claims is to strive for clarity, to delineate them based on the themes of the case, and to ensure the preservation of claims should any others be dismissed. If claims are grouped incoherently, then a motion to dismiss may remove valid claims from your case. Clear delineation of your claims helps in your ongoing case management as you plan and conduct discovery and as you maintain time records for an application for attorneys’ fees.
4.1.E. Framing Relief
The prayer or request for relief is a required part of the complaint. It forms the opening gambit in any negotiations. It acts as the “ceiling” for what you can obtain either in settlement or from the court. It colors the way others, including the court and the defendant, perceive the lawsuit depending on whether they view what you want as reasonable or as overreaching. Thus, how you frame your request for relief is a strategic decision.
Each type of relief you want must be listed. Your requested relief might include the following:
• Injunctive relief (prospective, retroactive or both)
• Declaratory relief
• Compensatory damages
• Punitive damages
• Pain and suffering
• Statutory damages, such as treble damages or fines
• Reimbursement of funds paid or lost
• Class action certification, if applicable
• Attorneys’ fees
Each type of relief must be supported by the factual allegations and legal claims that precede it. If injunctive relief is sought, there should also be a routine allegation that equitable relief is necessary because relief at law is inadequate. The request for relief should also contain a catchall request for “such other and further relief as this court may deem just and proper.” This clause is your protection if you seek to obtain more than or different relief from what you contemplated when you drafted the complaint. When your client reviews the complaint, you must explain the purpose of the request for relief; clients sometimes believe that the amount of damages listed is what they will get if they win the case or settle.
The specificity of the relief requested depends on the complexity of the case and the degree to which specifics are known at the time of filing. For example, if the relief requested is clear and specific, it may be best to state it: “Provide plaintiff with the public assistance benefits to which he was entitled from January 15, 2002, the date of his eligibility.” A request for systemic relief, however, may be phrased more broadly, with details to follow in a consent decree or remedial order. The important principle is to be broad and inclusive in the prayer for relief. Do not leave anything out.
1. Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
2. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
3. See, e.g., Symposium, Pondering Iqbal, 14 Lewis & Clark L. Rev. 1 (2010); The Changing Shape of Federal Civil Pretrial Practice, 158 U. Pa. L. Rev. 421 (Jan 2010).
4. The Notice Pleading Restoration Act, S. 1504, 111th Cong. (2009); The Open Access to Courts Act of 2009, H.R. 4115, 111th Cong. (2009). For an excellent analysis of the new pleading standards, see the testimony of Professor Stephen Burbank, University of Pennsylvania David Berger Professor for the Administration of Justice, before the Senate Judiciary Committee. Appendix B of Professor Burbank’s written testimony is a list of several recent federal decisions interpreting and applying these standards..
5. See Jane Perkins, Pleading Standards after Twombly and Iqbal, 43 Clearinghouse Review 507 (March-April 2010). This article contains a number of useful tips for meeting the challenges presented by the new standards.
6. For more guidance on pre-litigation factual investigation, see Chapter 1 of this Manual.
7. Model Rules of Professional Conduct R. 4.2 (2004).
8. In re Grievance Proceeding, No. 3:01GP6 (SRU), 2002 U.S. Dist. LEXIS 18417, at *6, 2002 WL 31106389, at *2 (D. Conn. July 19, 2002) (Connecticut version of ABA Rule 4.2).
9. See Penda Corp. v. STK, No. Civ.A.03-5578, 2004 U.S. Dist. LEXIS 13577, at *14, 2004 WL 1628907, at *7 (E.D. Pa. July 16, 2004) (imposing sanction of preclusion of evidence obtained from unauthorized ex parte contact, but denying request for disqualification of counsel).
10. See generally, Geoffrey C. Hazard, Jr. and Dana Remus Irvin, Toward a Revised 4.2 No-Contact Rule, 60 Hastings L.J. 797 (2009); Susan J. Becker, Discovery of Information and Documents From a Litigant’s Former Employees: Synergy and Synthesis of Civil Rules, Ethical Standards, Privilege Doctrines, and Common Law Principles, 81 Neb. L. Rev. 868 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 2), 70 Tenn. L. Rev. 321 (2003); Carl A. Pierce, Variations on a Basic Theme: Revisiting the ABA’s Revision of Model Rule 4.2 (Part 1), 70 Tenn. L. Rev. 121 (2002).
11. Model Rules of Professional Conduct R. 4.2 cmt. 7 (2004).
12. See, e.g., Paris v. Union Pac. R.R., 450 F. Supp. 2d 913 (E.D. Ark. 2006)
13. Frey v. Dept. of Health & Human Servs., 106 F.R.D. 32, 37 (E.D.N.Y. 1985) (citations omitted) (allowing interviews of lower level SSA employees under “alter ego” test which only restricts contact with employees with authority to bind the agency); see Rivera v. Rowland, No. CV95-545629, 1996 Conn. Super. LEXIS 3398, *15-16, 1996 WL 753943, at *5 (Conn. Super. Ct. Dec. 17, 1996) (allowing access to assistant public defenders as fact witnesses and noting that government defendants “are public persons and entities carrying on the public’s business. As such, they are compelled to strike a delicate balance and play a difficult dual role – vigorously defending the case, yet ensuring all the while that justice is done.”); see also NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d 1335, 1342 (M.D. Fla. 2000) (allowing contact with prison workers in wrongful discharge litigation, despite contention that their actions and statements could be imputed to the defendant for liability purposes); Brown v. Or. Dept. of Corr., 173 F.R.D. 265 (D. Or. 1997) (allowing interviews of current non-management employees, employees whose conduct is not at issue, and all former or transferred employees); Vega v. Bloomsburgh, 427 F. Supp. 593, 595 (D. Mass. 1977) (contact with welfare workers allowed in Medicaid EPSDT litigation).
14. Model Rules of Professional Conduct R. 4.2 cmt. 5 (2004); see id. cmt. 4 (“[T]he existence of a controversy between a government agency and a private party . . . does not prohibit a lawyer for either from communicating with nonlawyer representatives of the other regarding a separate matter.”).
15. Model Rules of Professional Conduct R. 4.2 cmt. 7 (2004); see Frank v. L.L. Bean, Inc., 377 F. Supp. 2d 233, 236 (D. Me. 2005).
16. See, e.g., NAACP v. Fla. Dept. of Corr., 122 F. Supp.2d at 1335; Olson v. Snap Prod., Inc., 183 F.R.D. 539 (D. Minn. 1998); Dubois v. Gradco Systems, Inc., 136 F.R.D. 341 (D. Conn. 1991); Lang v. Superior Court, 826 P.2d 1228 (Ariz. Ct. App. 1992); Strawser v. Exxon Co., 843 P.2d 613, 618 (Wyo. 1992). Some courts have declined to impose any limitations upon ex parte contacts with former employees. E.g., P.T. Barnum’s Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind. Ct. App. 2002); H.B.A. Mgmt. v. Estate of Schwartz, 693 So.2d 541, 545 (Fla. 1997).
17. See, e.g., H.B.A. Mgmt., 693 So. 2d at 546; Fed. R. Evid. 801(d)(2)(D).
18. Lang, 826 P.2d at 1233 (“[F]or example, if an employee hired to drive a truck is involved in an accident that occurs in the course and scope of employment, the fact that the employee leaves her employment should not determine the propriety of ex parte communications. Clearly, the employee’s acts or omissions in connection with any litigation that arises out of the accident can be imputed to the former employer for purposes of civil liability.”).
19. Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § 38.6, at 38-10 (2004 Supp.); see IBM v. Edelstein, 526 F.2d 37, 41 (2d Cir. 1975) (emphasizing the importance of informal fact-gathering, versus restrictions inherent in having to take witness depositions).
20. Fed. R. Civ. P. 3.
21. Id. 4(m). Filing and service are discussed infra.
22. See, e.g., id. 12(a), 16(b).
23. Id. 15.
24. Id. 10(b). Of course, as explained in Chapter 2.2 of this Manual, the federal complaint must also allege the basis of jurisdiction. Fed. R. Civ. P. 8(a)(1).
25. Fed. R. Civ. P. 11(b)(3).
26. Conley v. Gibson, 355 U.S. 41, 47 (1957); Fed. R. Civ. P. 8(a).
27. Conley, 355 U.S. at 45-46.
28. Swierkiewicz v. Sorema, 534 U.S. 506 (2002).
29. Id. at 508; see McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
30. Swierkiewicz, 534 U.S. at 514.
31. Bell Atlantic v. Twombly, 550 U.S. 544 (2007).
32. Id. at 555.
33. Id. at 570.
34. For a subsequent, although brief, opinion holding that a pro se prisoner’s Section 1983 complaint based on deliberate indifference to medical needs was sufficiently pled, see Erickson v. Pardus, 551 U.S. 89 (2007); see also Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010) (assessing pro se prisoner’s complaint and finding some claims sufficiently pled and others not). More recently, the Supreme Court found an inartful complaint sufficient and somewhat oddly did so without citing either Iqbal or Twombly, but instead citing Swierkiewicz: “Because this case was resolved on a motion to dismiss for failure to state a claim, the question below was ‘not whether [Skinner] will ultimately prevail’ on his procedural due process claim, but whether his complaint was sufficient to cross the federal court’s threshold. Skinner’s complaint is not a model of the careful drafter’s art, but under the Federal Rules of Civil Procedure, a complaint need not pin plaintiff’s claim for relief to a precise legal theory. Rule 8(a)(2) of the Federal Rules of Civil Procedure generally requires only a plausible “short and plain” statement of the plaintiff’s claim, not an exposition of his legal argument. See 5 C. Wright & A. Miller, Federal Practice & Procedure § 1219, pp. 277-278 (3d ed. 2004 and Supp. 2010).” Skinner v. Switzer, 131 S. Ct. 1289, 1296 (2011) (citations omitted). Skinner should not be interpreted as weakening Iqbal and Twombly, which focus on the factual sufficiency of the complaint. The issue here dealt with the clarity of the legal claims.
35. Iqbal, 556 U.S. at 677.
36. Id. at 678.
37. Id. For a recent Supreme Court case in the securities law context finding, without substantial explanation, that the presence of medical reports showed a plausible causal link between use of a drug and adverse reactions, see Matrixx Initiatives, Inc. v. Siracusano, 131 S. Ct. 1309, 1323 (2011).
38. Iqbal at 678. When a set of pleaded facts gives rise to two alternate reasonable inferences, one tending to support liability and the other not, the plausibility standard is met. Fabian v. Fulmer Helmets, Inc., 628 F.3d 278, 281 (6th Cir. 2010). Swanson v. Citibank, 614 F.3d 400 (7th Cir. 2010) is an interesting pro se lending discrimination case in which the majority, over Judge Posner’s dissent, took a rather gentle approach to applying Iqbal and Twombly, stating that, “[a]s we understand it, the Court is saying instead that the plaintiff must give enough details about the subject-matter of the case to present a story that holds together. In other words, the court will ask itself could these things have happened, not did they happen. For cases governed only by Rule 8, it is not necessary to stack up inferences side by side and allow the case to go forward only if the plaintiff’s inferences seem more compelling than the opposing inferences.” Id. at 404. McCauley v. City of Chicago, 671 F.3d 611 (7th Cir. 2011) later distinguished Swanson on the facts.
39. Twombly, 550 U.S. at 555.
40. Iqbal, 556 U.S. at 678. For an interesting post-Iqbal decision authored by Justice Souter, sitting as a Circuit Judge, see Sepúlveda-Villarini v. Dep’t of Educ. of Puerto Rico, 628 F.3d 25 (1st Cir. 2010). In Sepúlveda-Villarini, plaintiffs alleged that the defendants discriminated against them by failing to reduce their class sizes to accommodate disabilities. The court reversed the trial court’s dismissal of their claims, holding that the facts pled in the complaint could infer a causal connection between the larger class size and deterioration in the teachers’ health. Justice Souter wrote, “[a] plausible but inconclusive inference from pleaded facts will survive a motion to dismiss, and the fair inferences from the facts pleaded in these cases point to the essential difference between each of them and the circumstances in Twombly, for example, in which the same actionable conduct alleged on the defendant’s part had been held in some prior cases to be lawful behavior.” Id. at 30.
41. Iqbal, 556 U.S. at 679.
43. See A. Benjamin Spencer, Iqbal and the Slide Toward Restrictive Procedure, 14 Lewis & Clark L. Rev. 185 (2010).
44. See Jane Perkins, Pleading Standards after Iqbal and Twombly, 43 Clearinghouse Review 507 (March-April 2010). Perkins offers fifteen useful tips for drafting complaints in the wake of Iqbal and Twombly.
45. See Fed. R. Civ. P. 11(b)(3). Note that Rule 11(b)(3) permits pleader to make factual contentions “specifically so identified” when they “will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.” So far, there is little case law dealing with the use of allegations made under Rule 11(b)(3) to satisfy Iqbal. See Leary v. State Farm Fire & Cas. Co., Civ. No. 3:11-145, 2012 U.S. Dist. LEXIS 23898 at *35, 2012 WL 604338 at *12 (W.D. Pa. Feb. 24, 2012); Kemp v. City of Springfield, No. 10-CV-6420, 2012 U.S. Dist. LEXIS 30141 at *9, 2012 WL 775093 at *3 (D. Ore. Jan. 30, 2012); U.S. ex rel. Folliard v. CDW Tech. Servs, 722 F. Supp. 2d 20 (D.D.C. 2010); Elan Microelectronics Corp. v. Apple, Inc., 2009 U.S. Dist LEXIS 83715 (N.D. Cal. Sept. 14, 2009). In an interesting case, Penalbert-Rosa v. Fortuño-Burset, 631 F.3d 592 (1st. Cir. 2011), a public employee plausibly claimed that she was fired because of her political affiliation when a new governor was elected. Id. at 594. However, the complaint offered insufficient facts supporting her contentions that one of the named defendants was involved in the firing. Id. The First Circuit affirmed the dismissal of the complaint against the named defendants, but allowed the employee to amend the complaint to proceed against John Doe defendants. Id. at 597.
46. At the time of this update, few federal appellate courts have had occasion to distinguish Iqbal. Two of note are al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev’d on other grounds, 131 S. Ct. 2074 (2011), and Smith v. Duffey, 576 F.3d 336 (7th Cir. 2009); see also Gulf Coast Hotel-Motel Ass’n v. Gulf Coast Golf Course Ass’n, 658 F.3d 500, 506 (5th Cir. 2011); Hamilton v. Palm, 621 F.3d 816 (8th Cir. 2010).
47. Fed. R. Civ. P. 8(b).
48. Id. 26(b)(1); see also id. 26(a)(1) (mandatory initial disclosures).
49. See Chapter 6.4 of this Manual.
50. See Chapter 7 of this Manual. Programs that receive funding from the Legal Services Corporation (LSC) are prohibited from initiating or participating in class actions. 45 C.F.R. § 1617.
51. Fed. R. Civ. P. 23(c)(1)(a).
52. Ex Parte Young, 209 U.S. 123 (1909). See Chapter 8.2 of this Manual.
53. Elizabeth Fajans & Mary R. Falk, Untold Stories: Restoring Narrative to Pleading Practice, 15 Legal Writing 3 (2009).
Federal courts generally have three sources of power from which to impose sanctions:
1. Rule 11 of the Federal Rules of Civil Procedure;
2. 28 U.S.C. § 1927; and
3. The inherent power of the court.
These sources of power overlap and are not necessarily mutually exclusive./54/ The legal aid attorney should consider all three carefully when asking for sanctions, or when faced with the threat of sanctions. This chapter explores each of these grounds for imposing sanctions as well as the ethical issues inherent in ghostwriting filings for pro se litigants.
4.2.A. Federal Rule of Civil Procedure 11
Federal Rule of Civil Procedure 11 authorizes federal courts to issue sanctions against parties or their attorneys who file pleadings, motions, or other papers that are filed for an improper purpose or lack a required level of evidentiary or legal support. The aim of Rule 11 is to deter frivolous filings, to “curb abuses of the judicial system,”/55/ and to require litigants to refrain from conduct that frustrates Rule 1’s goal of the “just, speedy, and inexpensive determination of every action.”/56/
Rule 11 states that “[e]very 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.”/57/ That is, counsel must sign every document filed with the court./58/ A typed name is not a signature./59/ But, courts may by local rule establish electronic filing policies consistent with technical standards adopted by the Judicial Conference of the United States that permit electronic signature./60/ The signer’s address, e-mail address, and telephone number must be included./61/ Additionally, local rules of court may require further identifying information to accompany the signature, such as fax numbers./62/ In Business Guides Inc. v. Chromatic Communications Enterprises, the Supreme Court noted that “[t]he essence of Rule 11 is that signing is no longer a meaningless act; it denotes merit. A signature sends a message to the district court that this document is to be taken seriously.”/63/
4.2.A.1 Standards for Making Representations to the Court
Rule 11(b) provides that,”[b]y 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” that the material presented is not filed for an improper purpose and has the requisite degree of evidentiary and legal support./64/ This language raises two interpretive questions – what “later advocating” means and what “a reasonable inquiry under the circumstances” entails.
The “later advocating” requirement was added to Rule 11(b) in 1993 to emphasize that Rule 11 obligations continue throughout the litigation process./65/ This amendment “subjects litigants to potential sanctions for insisting upon a position after it is no longer tenable.”/66/ Although an attorney must discontinue advocating a position that she later learns is invalid, Rule 11 does not require a formal amendment of the initial filing./67/ Nor does Rule 11 cover contentions made before the court at oral argument regarding matters not previously raised because attorneys may have lacked time to research their validity./68/ However, oral statements that advocate baseless assertions earlier made in writing are sanctionable./69/
The “reasonable inquiry” requirement imposes on the attorney a duty to stop and investigate the legal and factual basis for a claim or defense before making it in writing./70/ How much and what type of inquiry is required depends on the circumstances. As one might expect, an important circumstance is the amount of time the attorney has to make the investigation./71/ A pending expiration of a statute of limitations or situation in which the client is facing irreparable or grave harm may justify a less robust investigation. If there is sufficient time to conduct a full investigation, an attorney is expected to interview relevant witnesses, review pertinent documents, and discuss the case with prior counsel if the case has been referred./72/ Generally, an attorney may rely upon the reasonable representations of their client, but good practice is to seek verification of those facts when it is possible to do so. /73/ An attorney may also draw reasonable inferences from facts uncovered during the investigation. Lack of experience is not a relevant factor, as inexperienced attorneys are expected to seek guidance from seasoned attorneys.
Rule 11(b) enumerates four standards to which litigants and counsel must adhere when presenting materials to the court. First, Rule 11(b)(1) requires that the papers not be presented for an improper purpose. Prohibited improper purposes include harassment, unnecessary delay, and the needless increase in the cost of litigation./74/ Despite the subjective connotation of “improper purpose,” most courts agree that the test is an objective one based upon a totality of the circumstances at the time the paper is filed./75/ Courts adhering to the objective test will look to “objective indicators of purpose from which to infer improper purpose” and will not consider or attempt to divine an individual litigant’s subjective purpose./76/ Courts using this test must identify specific “unusual circumstances” which show an improper purpose, such as excessive filing of motions that are substantially similar to earlier, unsuccessful motions./77/ While most circuits addressing the issue agree that finding an improper purpose is a purely objective task, a few courts disagree, leaving unresolved the question of whether, and to what extent, subjective intent should be considered as a factor in determining the litigant’s purpose./78/
Complicating the improper purpose standard has been how to evaluate cases involving a mix of proper and improper purposes and cases involving the filing of non-frivolous documents which may nevertheless be filed for an improper purpose. The language of Rule 11 plainly states that papers presented for “any” improper purpose will be sanctionable./79/ However, the courts have split on mixed motive cases./80/ The question of non-frivolous filings made for improper purposes has also split the circuits. The Second, Ninth, and Tenth Circuits have held that sanctions may not be imposed in connection with the filing of a non-frivolous complaint, even if filed for an improper purpose./81/ These courts have found that that “[a] party should not be penalized for or deterred from seeking and obtaining warranted judicial relief merely because one of his multiple purposes in seeking that relief may have been improper.”/82/ Alternatively, the Fourth, Fifth and Seventh Circuits have held that a non-frivolous complaint may be sanctioned./83/ The Fourth Circuit has adopted a balancing test of sorts, stating that “the purpose to vindicate rights in court must be central and sincere.”/84/ The Fifth Circuit has adopted a “but for” test to determine when a party may be sanctioned for filing with an improper purpose./85/ This test requires the movant to prove, through objectively ascertainable evidence, that “but for” the improper motive, the filing would not have been filed./86/
Second, Rule 11(b)(2) states that any claims, defenses, or legal contentions presented to the court must be grounded in existing law, asserted to extend, modify, or reverse existing law, or establish new law./87/ This requires attorneys to make an objectively reasonable inquiry under the circumstances into the state of the law. The standard is not met when the legal assertion is (1) objectively baseless and (2) the attorney has not made a “reasonable and competent inquiry” before making it./88/ A court need not find bad faith to issue sanctions; good faith is no defense./89/ Thus, an “empty head, pure heart” defense to a motion for sanctions must fail. A legal position will be sanctionable only when it can be said that a “reasonable attorney in like circumstances could not have believed his actions to be legally justified.”/90/
When the prevailing law is unsettled, a well-supported but unsuccessful argument should not be subject to sanctions. When the existing law is clear, but contrary to the position of the legal aid attorney, court have held that plausible arguments to extend, modify, or reverse existing law are not subject to Rule 11 sanctions./91/ Such arguments, though, should be grounded in favorable precedent in other circuits or academic literature. Reliance on policy or logic alone raises the risk of sanctions. The legal argument must have “absolutely no chance of success under the existing precedent” to contravene Rule 11./92/ Nonetheless, advancing an argument for the purpose of preserving it for appellate review is permissible, so long as the argument is not frivolous./93/ Legal services attorneys should document the legal research performed and consultations with other attorneys before filing because these efforts are subject to scrutiny should a Rule 11 motion be filed./94/ When an argument is foreclosed by existing law, the legal aid attorney should be careful to explain that he is advancing a novel legal arguments aimed at reversing existing law or establishing new law./95/
Third, Rule 11(b)(3) requires that any factual allegation either have evidentiary support or, if identified as such, be “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”/96/ This requires attorneys to make an objectively reasonable inquiry under the circumstances into the facts of the case. As noted above, to determine whether factual assertions are supported by an objectively reasonable factual inquiry, courts will look to several factors, including:
[W]hether the signer of the documents had sufficient time for investigation; the extent to which the attorney had to rely on his or her client for the factual foundation underlying the pleading, motion or other paper, whether the case was accepted from another attorney, the complexity of the facts and the attorney’s ability to do a sufficient pre-filing investigation; and whether discovery would have been beneficial to the development of the underlying facts./97/
The Second Circuit recently held that “[a] statement of fact can give rise to the imposition of sanctions only when the particular allegation is utterly lacking in support.”/98/ Such allegations of fact may be supported by direct or circumstantial evidence. It is not a violation of Rule 11 to rely on inferences to support facts or to fail to indentify the support for the fact as either based on direct evidence or inference./99/ Generally, isolated factual errors are not sanctionable, so long as the error was made in good faith and in a context in which the filing as a whole had factual support./100/ However, courts have on occasion held such errors to be deserving of sanctions./101/ Factual assertions should, at bottom, be made with extreme care and after review by others in the legal aid office.
Fourth, Rule 11(b)(4) states that any denials of factual contentions must be either “warranted on the evidence” or, if identified as such, “reasonably based on a lack of information or belief.”/102/ Thus, denials of fact are treated like factual assertions and must be objectively reasonable. The addition of this fourth requirement to the 1993 amended rule ensures an equal application to both plaintiffs and defendants.
Rule 11(c) permits, but no longer requires, the court to issue sanctions to attorneys, law firms, or parties in violation of the rule or responsible for the violation./103/ The 1993 amendments made the issuance of sanctions, whether prompted by motion or by the court’s own initiative, discretionary rather than mandatory./104/ The advisory committee’s notes list several factors that the courts should consider in deciding whether to issue a sanction and, if appropriate, the kind of sanction to impose:
Whether the improper conduct was willful, or negligent; whether it was part of a pattern of activity, or an isolated event; whether it infected the entire pleading, or only one particular count or defense; whether the person has engaged in similar conduct in other litigation; whether it was intended to injure; what effect it had on the litigation process in time or expense; whether the responsible person is trained in the law; what amount, given the financial resources of the responsible person, is needed to deter that person from repetition in the same case; what amount is needed to deter similar activity by other litigants./105/
The 1993 amendments also stress that the purpose of sanctions is deterrence rather than compensation and highlight the availability of non-monetary sanctions for the court’s consideration./106/ Consistent with this deterrence function, “if a monetary sanction is imposed, it should ordinarily be paid into court as a penalty.”/107/ These amendments lessen the incentive for a litigant to file a motion for sanctions because the litigant is less likely to profit financially if a Rule 11 violation is found by the court. Rule 11, however, also authorizes the direct payment of fees and expenses to the moving party when “warranted for effective deterrence.”/108/ At bottom, “sanctions should not be more severe than reasonably necessary to deter repetition of the conduct by the offending person or comparable conduct by similarly situated persons.”/109/
Rule 11 authorizes the court to sanction both attorneys and their clients./110/ Rule 11(c)(1)(A) further provides that, “[a]bsent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.”/111/ Although this provision has apparently not been applied to a legal services organization, it does suggest that such an entity could be regarded as a law firm and, therefore, subject to sanctions when an attorney it employs violates Rule 11./112/ The advisory committee’s notes state that the court may appropriately inquire whether “institutional parties” impose restrictions on the discretion of individual attorneys./113/ To the extent that such restrictions minimize the risk of institutional sanctions, legal aid organizations may wish to consider imposing them.
Rule 11(c)((1)(A) requires that a party seeking sanctions must serve a separate motion identifiying the conduct that is alleged to have violated Rule 11 on the alleged offender twenty-one days before filing the motion in court. /114/ During this twenty-one-day period, the party served may withdraw or correct any challenged material, thus eliminating the need for the motion to be filed with the court. This “safe harbor” period aims to decrease the volume of Rule 11 motions that come before the court. Litigants may avoid potential sanctions by withdrawing or amending improper materials without the court’s involvement. The court in Barber v. Miller discussed the rationale for the safe-harbor provision as follow:
These provisions These provisions are intended to provide a type of “safe harbor” against motions under Rule 11 in that a party will not be subject to sanctions on the basis of another party’s motion unless, after receiving the motion, it refused to withdraw that position or to acknowledge candidly that it does not currently have evidence to support a specified allegation. Under the former rule, parties were sometimes reluctant to abandon a questionable contention lest that be viewed as evidence of a violation of Rule 11; under the revision, the timely withdrawal of a contention will protect a party against a motion for sanctions. /115/
A court may also levy sanctions sua sponte but may do so only after issuing a specific order describing the perceived misconduct and allowing the possible offender an opportunity to show cause why the sanction should not be issued./116/ The rule incorporates a measure of due process protection./117/ However, because a sua sponte order to show cause does not allow an attorney the opportunity to withdraw the offending filing, courts are cautioned to “reserve such sanction for situations that are akin to a contempt of court.”/118/ Furthermore, to facilitate appellate review, the rule requires the court to describe the sanctionable conduct and the basis for the sanction imposed./119/
While the matter may turn on particular facts, Rule 11 sanctions are not generally immediately appealable under the collateral order doctrine./120/ On appeal,”[a]ll aspects of a district court’s Rule 11 determination are examined under the abuse of discretion standard.”/121/ However, when sanctions are levied sua sponte, they will be reviewed with “particular stringency” due to the “unusual position of the trial court in such circumstances, serving at once as both prosecutor and judge . . . .”/122/
4.2.B. 28 U.S.C. § 1927
Another basis for sanctions lies in 28 U.S.C.§ 1927, which serves “to deter unnecessary delays in litigation.”/123/ The statute authorizes sanctions in the form of “excess costs, expenses, and attorneys fees” against any attorney who “multiplies the proceedings in any case unreasonably and vexatiously.”/124/ While there are cases to the contrary, the emerging consensus is that law firms (and, by extension, legal aid offices) are not subject to sanctions under § 1927; only individual attorneys may be sanctioned under the statute./125/ Courts have resorted to § 1927 more frequently since the statute was amended to include attorneys’ fees./126/
The scope of authority to sanction under § 1927 is both broader and narrower than Rule 11./127/ Section 1927 is broader in that the attorney’s behavior is examined throughout the entire litigation, as a “course of conduct,”/128/ while Rule 11 applies to individual filings./129/ The filing of a frivolous complaint, alone, may violate Rule 11, but not §1927 because such a complaint does not “multiply” the proceedings./130/ Conversely, a course of conduct can be sanctionable under § 1927 even though the individual filings during that conduct comport with Rule 11 standards.
Section 1927 is narrower because, unlike Rule 11 requirement of objective reasonableness, § 1927 requires subjective bad faith./131/ Some jurisdictions, however, interpret § 1927 as authorizing sanctions when attorney conduct, “viewed objectively, manifests either intentional or reckless disregard of the attorney’s duties to the court.”/132/ For these courts, malicious intent or bad purpose is not required. Thus, the “circuits are split as to whether §1927 requires a showing of subjective bad faith or whether mere recklessness is sufficient.”/133/
Since Rule 11 and § 1927 have different standards, courts deciding whether to issue sanctions under both may conduct a separate inquiry into § 1927 and Rule 11, but a court proceeding sua sponte under either rule must give the subject attorney notice and an opportunity to respond./134/ Their “resulting findings must appear with reasonable specificity in terms of the perceived misconduct and the sanctioning authority.”/135/ For example, since § 1927 sanctions are limited to costs associated with excess litigation, “blanket awards of all fees” may not withstand appellate scrutiny./136/
4.2.C. The Inherent Power of the Court
The sanctioning power of the federal courts “is not limited to what is enumerated in statutes or in the rules of civil procedure.”/137/ Federal courts have the inherent power to punish persons who abuse the judicial process. The inherent power of the court is an “implied power squeezed from the need to make the courts function.”/138/ Rule 11 and § 1927 do not displace the court’s inherent power, but instead they exist concurrently./139/
The inherent power to sanction is broad./140/ The scope of the power reaches “any abuse” of the judicial process./141/ This includes the authority to sanction for conduct which occurs outside of the courtroom, and is not limited to attorneys or parties./142/ Courts also have broad discretion to determine the appropriate sanction to be imposed./143/ Where appropriate, courts may impose attorney’s fees representing the entire cost of litigation./144/ However, the courts inherent power to “impose attorney’s fees is limited to those cases where the litigant has engaged in bad-faith conduct or willful disobedience . . . .”/145/
Given the broad authority granted, a court’s use of the inherent power should be used cautiously./146/ Any use must comply with due process./147/ Use of the power will be reviewed under the abuse of discretion standard./148/
Table of Comparison:
Rule 11 28 U.S.C. §1927
Applicable Conduct: Pleadings, written motions, and other papers filed in a civil action for an improper purpose or without a reasonable inquiry into the facts and law. Any conduct which so multiplies the proceedings in any case unreasonably and vexatiously. Any abuse of the judicial process.
Legal Standard Triggering Liability: Objective reasonableness Circuit Split:
Subjective bad faith or mere recklessness. Bad faith required to award expenses including attorney’s fees.
Who Can Be Sanctioned: Attorneys, their law firms, parties, and pro se litigants. Attorneys only. Broad authority.
Procedural Requirements: Must be in separate motion, which must be served on the offending party 21 days before filing with the court. If offending filing is withdrawn, the matter is concluded. Court may demand attorney, law firm, or party show cause why conduct does not violate Rule 11(b) of its own initiative. No specific requirements. Must comport with due process. No specific requirements. Must comport with due process.
As increasing numbers of litigants proceed pro se, many lawyers and legal offices offer “unbundled legal services” also known as limited scope representation./149/ Limited representation is permissible if reasonable and the client consents./150/ In such representation, the attorney and client agree that the attorney will provide discrete and limited services for the client as part of the client’s effort to represent themselves. One such service is ghostwriting, which occurs when an attorney prepares documents for filing by a party who otherwise appears unrepresented in the litigation./151/
Initially, the attorney must consider what amount of assistance constitutes ghostwriting in their jurisdiction. Courts generally find “that an attorney must play a substantial role in the litigation” to be considered a ghostwriter./152/ Petitions and briefs which are “manifestly written” or prepared in “any substantial way” by an attorney will cross this threshold./153/
Ghostwriting has been defended as a practice which improves client satisfaction, helps parties advance meritorious claims or defenses that would otherwise not be made, and increases access to civil representation for clients who would otherwise be unable to afford full-service representation./154/ However, courts and bar ethics committees have criticized the practice as duping courts into giving pro se litigants undeserved leniency and allowing attorneys to avoid procedural rules and ethical obligations./155/ Ghostwriting therefore raises both ethical and procedural concerns./156/
4.2.D.1. Ethical Concerns
Various courts and ethics committees have found the practice of ghostwriting to be in conflict with the duty of candor owed to the court by giving a “false impression of the real state of affairs.”/157/ They regard ghostwriting as violating Model Rules of Professional Conduct Rule 3.3(a)(1) (candor to the tribunal) and/or 4.1 (truthfulness in statements to others)./158/ Additionally, ghostwriters may run afoul of Model Rule 8.4(c)’s admonition against “conduct involving dishonesty, fraud, deceit or misrepresentation” by not disclosing their participation in drafting the document./159/
In 2007 the ABA released a formal opinion finding that “[a] lawyer may provide legal assistance to litigants appearing before tribunals ‘pro se’ and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance.”/160/ The ABA committee therefore found that providing undisclosed legal assistance to pro se litigations does not violate the Model Rules of Professional Conduct so long as the assisting lawyer does not violate rules that otherwise apply to their conduct./161/ The ABA committee was not persuaded that undisclosed assistance gives an advantage to pro se litigants whose filings are generally construed liberally since the background help by a lawyer should be clear if the document is drafted effectively. Nor did the committee view ghostwriting as a violation of Model Rule 8.4 or of rules, like Rule 11, that requires attorneys to assume responsibility for documents filed with a court. Somewhat begging the question, the committee concluded that such a duty is assumed only when the attorney signs the document as counsel.
State ethics committees continue to reach divergent conclusion about the propriety of ghostwriting./162/ Some state committees have adopted the ABA position and state that no disclosure is ethically required./163/ Others have taken a more moderate view, requiring attorneys only to inform the court that the pro se litigant received professional help, for example, by the including the statement “prepared by counsel” in the ghostwritten filing./164/ Other committees go further, demanding the ghostwriting attorney reveal their full identity./165/ There is some academic support for the notion that attorneys should be required to disclose their involvement, but that it should be regarded as a limited appearance that does not require a subsequent motion to withdraw./166/
Before engaging in ghostwriting, it is strongly recommended that you review any ethics opinions involving this practice in your jurisdiction or seek such an opinion if there is not one on point.
4.2.D.2 Procedural Concerns
Federal courts have been hostile to the practice of ghostwriting, finding that it violates the spirit of Rule 11 by circumventing the attorney’s signature requirement./167/ Courts have specifically interpreted the purpose of Rule 11(a) as requiring attorneys to sign court documents that they prepared “in any substantial part.”/168/ However, one court acknowledged that if a ghostwriter no longer represented a litigant when the complaint is filed, the author’s failure to sign a complaint “is not at odds with the plain language of Rule 11.”/169/ Advocates should be especially wary in jurisdictions that have already addressed ghostwriting since some courts served notice that it will be sanctionable./170/ For example, a particularly detailed and recent opinion finding that ghostwriting in New Jersey violated state ethics rules and the spirit of Rule 11 is Delso v. Trs. for the Ret. Plan for the Hourly Employees of Merck./171/
Even though most federal courts addressing ghostwriting concluded that it violates Rule 11, the same courts declined to sanction the anonymous authors. The courts cited insufficient evidence,/172/ or a lack of clearly defined precedent./173/ Courts have, however, ordered pro se litigants to disclose the source of their assistance./174/ However, as more jurisdictions confront ghostwriting, attitudes are changing. Some courts have adopted the policy of strikting ghostwritten submissions and indicated their willingenss to levy sanctions./175/ Although nascent in development, the authority to sanction ghostwriting includes:
• the inherent power of the court,/176/
• local rules governing withdrawal of representation,/177/
• the ethical rules,/178/ and
• the signature requirement of Rule 11./179/
At least one court offered a preventive approach for attorneys caught between protecting a pro se litigant from default and not being bound to represent the litigant throughout the entire case./180/ The suggested remedy is simply to sign and file the pleading and “simultaneously fil[e] a motion to withdraw as counsel accompanied by an appropriate explanation and brief.”/181/ However, this theoretical escape hatch poses unique problems for legal aid attorneys, who often provide limited service arrangements to clients. In such cases, withdrawal may run afoul of the duty not to withdraw if it would cause a “material adverse effect on the interests of the client.”/182/
54. See Chambers v. NASCO, Inc., 501 U.S. 32, 46 (1991) (finding that, despite Rule 11 and 28 U.S.C. § 1927 both being potentially applicable, the court was not required to resort to using them when the inherent power of court was best suited to the facts); see also Danielle Kie Hart, And the Chill Goes on–Federal Civil Rights Plaintiffs Beware: Rule 11 Vis-À-Vis 28 U.S.C. § 1927 and the Court’s Inherent Power, 37 Loy. L.A. L. Rev. 645 (2004) (exploring the interaction of Rule 11, § 1927, and the inherent power of the court, and their chilling effect on the development of the common law).
55. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 397 (1990).
56. Fed. R. Civ. P. 1; Fed. R. Civ. P. 11 advisory committee’s notes (1993).
57. Fed. R. Civ. P. 11(a).
58. “Other papers” is broadly interpreted. See, e.g., Becker v. Montgomery, 532 U.S. 757, 763 (2001) (notice of appeal); Apolistic Pentecostal Church v. Colbert, 169 F.3d 409, 417 (6th Cir. 1999) (garnishee disclosure). However, Rule 11 does not apply to discovery. See Fed. R. Civ. P. 11(d) (“This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rule 26 through 37.”).
59. Becker v. Montgomery, 532 U.S. 757, 763 (2001). Should a filing be made without a handwritten signature, the clerk’s office should return it and a substitute promptly filed. See Fed. R. Civ. P. 11(a) .
60. Fed. R. Civ. P. 5(d)(3); see also Fed. R. Civ. P. 5 advisory committee’s notes (1996) (“An electronic filing that complies with the local rule satisfies all requirements for filing on paper, signature, or verification.”).
61. Fed. R. Civ. P. 11(a).
62. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
63. Bus. Guides Inc. v. Chromatic Communications Enters., 498 U.S. 533, 546 (1991).
64. Fed. R. Civ. P. 11(b).]
65. See e.g., Buster v. Greisen, 104 F.3d 1186, 1190 n.4 (9th Cir. 1997) (holding that district court could impose sanctions on plaintiff for continuing to argue frivolous contentions asserted in complaint even when action was filed in state court and removed).
66. Fed. R. Civ. P. 11 advisory committee’s notes (1993). At the same time, a voluntary dismissal of a complaint does not divest the trial court of jurisdiction to issue Rule 11 sanctions. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395 (1990).
67. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
68. Id. (Rule 11 “does not cover matters arising for the first time during oral presentations to the court, when counsel may make statements that would not have been made if there had been more time for study and reflection.”). See also Columbia Venture LLC v. FEMA (In re Bees), 562 F.3d 284, 289 (4th Cir. 2009) (the court could not sanction an attorney for her erroneous statements which were not advocated previously in a written submission).
69. Phonometrics, Inc. v. Econ. Inns of Am., 349 F.3d 1356, 1361 (Fed. Cir. 2003), cert. denied, 541 U.S. 1010 (2004).
70. Coonts v. Potts, 316 F.3d 745, 753 (8th Cir. 2003).
71. Smith v. Our Lady of the Lake Hosp., Inc., 960 F.2d 439, 447 (5th Cir. 1992).
72. Wigod v. Chicago Mercantile Exch., 981 F.2d 1510, 1523 (7th Cir. 1992) (sanctioned attorney in antitrust case failed to interview prior counsel and available witnesses).
73. Dubois v. U.S. Dep’t. of Agriculture, 270 F.3d 77, 82-83 (1st Cir. 2001).
74. Fed. R. Civ. P. 11(b)(1). This list is not exclusive. Actions intended to embarrass an opposing party may, for example, be sanctionable under Fed. R. Civ. P. 11(b)(1). See Whitehead v. Food Max of Miss., 332 F.3d 796, 807 (5th Cir.) (en banc), cert. denied, 540 U.S. 1047 (2003). So may actions filed to make a political point. See Saltany v. Reagan, 886 F.2d 438, 440 (D.C. Cir. 1989).
75. See FDIC v. MAXXAM, Inc., 523 F.3d 566, 581 (5th Cir. 2008); G.C. & K.B. Investments, Inc. v. Wilson, 326 F.3d 1096, 1109 (9th Cir. 2003); Margo v. Weiss, 213 F.3d 55, 65 (2d Cir. 2000).
76. See Jerold S. Solovy et al., Sanctions Under Rule 11: A Cross-Circuit Comparison, 37 Loy. L.A. Rev. 727, 729 (2004); MAXXAM, 523 F.3d at 581.
77. See MAXXAM, 523 F.3d at 585-86; G.C. & K.B. Investments, 326 F.3d at 1110; see also Solovy, supra note 76, at 729-30.
78. In Szabo Food Serv. v. Canteen Corp., 823 F.2d 1073, 1083 (7th Cir. 1987), cert. dismissed, 485 U.S. 901See e.g., Clark v. UPS, 460 F.3d 1004, 1010 (8th Cir. 2006) (referring to the district court’s finding of subjective motivation); see also In re Kunstler, 914 F.2d 505, 519 (4th Cir. 1990), cert. denied, 499 U.S. 969 (1991) (holding that subjective beliefs revealed through admission can be viewed as objective evidence of an improper purpose). (1988), the Seventh Circuit referred to the improper purpose prong as the “subjective component” of Rule 11 and stated that subjective bad faith was part of the analysis. At least two other circuits also claim to use an improper purpose test with at least some subjective component.
79. Fed. R. Civ. P. 11 .
80. See Silva v. Witschen, 19 F.3d 725, 730 (1st Cir. 1994) (upholding sanctions when proper motive was mixed with improper objective of pressuring defendants); Sussman v. Bank of Israel, 56 F.3d 450, 459 (2d Cir. 1995) (“A party should not penalized for or deterred from seeking and obtaining warranted judicial relief merely because one of his multiple purposes in seeking that relief may have been improper.”); In re Kunstler, 914 F.2d at 518 (“if a complaint is filed to vindicate rights in court, and also some other purpose, a court should not sanction counsel for an intention that the court does not approve, so long as the added purpose is not undertaking in bad faith and is not so excessive as to eliminate a proper purpose. Thus, the purpose to vindicate rights in court must be central and sincere.”).
81. Sussman, 56 F.3d at 459 (“[W]hatever the analysis applicable to motions and other papers filed after the commencement of the litigation, special care must be taken to avoid penalizing the filing of a nonfrivolous complaint, for otherwise a plaintiff who has a valid claim may lost his right ‘to vindicate his rights in court.’”); Townsend v. Holman Consulting Corp., 929 F.2d 1358, 1362 (9th Cir. 1990) (en banc) (“With regard to complaints which initiate actions, we have held that such complaints are not filed for an improper purpose if they are non-frivolous . . . . The reason for this rule regarding complaints is that the complaint is, of course, the document which embodies the plaintiff’s cause of action and it is the vehicle through which he enforces his substantive legal rights.”) (citations omitted); Burkhart v. Kinsley Bank, 852 F.2d 512, 515 (10th Cir. 1988) (If counsel filed [a complaint] which was [non-frivolous] “then any suggestion of harassment would necessarily fail.”).
82. Sussman, 56 F.3d at 459.
83. See In re Kunstler, 914 F.2d at 518 (finding that a court may sanction an otherwise colorable complaint if the purpose to vindicate rights in court is not “central and sincere.”); MAXXAM, 523 F.3d 566, 583-84 (5th Cir. 2008) (the court considered, and then rejected, a balancing inquiry suggesting that such a test would be too vague); Senese v. Chicago Area I. B. of T. Pension Fund, 237 F.3d 819, 823-24 (7th Cir. 2001) (Rule 11 may be violated when a complaint with a legal and factual basis is filed for an improper purpose).
84. In re Kunstler, 914 F.2d at 518 (“finding that “the purpose to vindicate rights in court must be central and sincere” and that “filing a motion or pleading without a sincere intent to pursue it will garner sanctions”).
85. MAXXAM, 523 F.3d at 583-84.
87. Fed. R. Civ. P. 11(b)(2).
88. See ICU Med., Inc. v. Alaris Med. Sys., 558 F.3d 1368, 1381 (Fed. Cir. 2009); see also Holgate v. Baldwin, 425 F.3d 671, 676 (9th Cir. 2005) (failure to allege essential elements of a Section 1985(3) claim is sanctionable).
89. Jenkins v. Methodist Hospital, 478 F.3d 255, 264 (5th Cir. 2007); Young v. City of Providence, 404 F.3d 33, 40 (1st Cir. 2005). Fed. R. Civ. P. 11 advisory committee’s notes (1993) (The Rule “establishes an objective standard, intended to eliminate any empty-head pureheart justification for patently frivolous arguments.”). See also Bus. Guides Inc., 498 U.S. 533, 549-51 (1991) (objective reasonableness standard applies to both attorneys and represented parties); but see In re Pennie & Edmonds, 323 F.3d 86 (2d Cir. 2003) (Second Circuit is alone among the circuits holding that subjective bad faith is required when the court issues sanctions sue sponte, thereby not permitting the attorney to withdraw the filing under the safe harbor provision).
90. Morris v. Wachovia Secs., 448 F.3d 268, 277 (4th Cir. 2006) (quoting Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 153 (4th Cir. 2002)).
91. See, e.g., Hunter v. Earthgrains Co. Bakery, 281 F.3d 144, 156-57 (4th Cir. 2002) (reversing sanction of attorney who inartfully argued for reversal of Circuit precedent). Gibson v. Chrysler Corp., 261 F.3d 927, 949 (9th Cir. 2001) (reversing the award of Rule 11 sanctions because “we recognize the difficulties faced by parties who seek to advance novel legal arguments”); Baker v. Alderman, 158 F.3d 516, 524 (11th Cir. 1998) (“[T]he purpose of Rule 11 is to deter frivolous lawsuits and not to deter novel legal arguments or cases of first impression.”); Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 524 (9th Cir. 1994) (dismissed complaint was not sanctionable as it raised important questions of first impression); United States v. Alexander, 981 F.2d 250, 253 (5th Cir. 1993) (“Parties who argue points of first impression in a circuit are not ordinarily the recipients of Rule 11 sanctions order,”); Mareno v. Rowe, 910 F.2d 1043, 1047 (2d Cir. 1990) (“[T]o constitute a frivolous legal position for purposes of Rule 11 sanction, it must be clear under existing precedents that there is no chance of success and no reasonable argument to extend, modify or reverse the law as it stands.”).
92. Morris, 448 F.3d at 277 (internal quotations omitted).
93. Gilmore v. Shearson/Am. Express, Inc., 811 F.2d 108, 111-12 (2d Cir. 1987).
94. Fed. R. Civ. P.11 advisory committee’s notes (1993). See Savino v. Computer Credit Inc., 164 F.3d 81, 88 (2d Cir. 1998).
95. See Fed. R. Civ. P. 11 advisory committee’s notes (1993) (“Although arguments for a change of law are not required to be specifically identified, a contention that is so identified should be viewed with greater tolerance under the rule.”); Margo, 213 F.3d 55, 64 (2d Cir. 2000).
96. Fed. R. Civ. P.11(b)(3). See, e.g. U.S. Bank Nat’l Assn. v. Sullivan-Moore, 406 F.3d 465, 469-70 (7th Cir. 2005) (sanctions upheld where law firm caused the eviction of tenant knowing that service address was incorrect).
97. Divane v. Krull Elec. Co., 200 F.3d 1020, 1028 (7th Cir. 1999) (quoting Brown v. Fed’n of State Medical Bds. of the U.S., 830 F.2d 1429, 1435 (7th Cir. 1987)). See also Jones v. Int’l Riding Helmets Ltd., 49 F.3d 692, 695 (11th Cir. 1995); Rodick v. City of Schenectady, 1 F.3d 1341, 1351 (2d Cir. 1993) (“Where an attorney is forced to plead under exigent circumstances, her reliance on the affidavits of her clients should be sufficient to constitute reasonable investigation for purposes of Rule 11.”).
98. Kiobel v. Millson, 592 F.3d 78, 81 (2d Cir. 2010) (finding that counsel’s statements were possibly factually wrong and overstated, but not utterly lacking support, and therefore not sanctionable).
99. Lucas v. Duncan, 574 F.3d 772, 778 (D.C. Cir. 2009).
100. Fed. R. Civ. P. 11 advisory committee’s notes (1993); see also Kiobel, 592 F.3d at 83.
101. Jenkins, 478 F.3d 255, 265 (5th Cir. 2007).
102. Fed. R. Civ. P. 11(b)(4).
103. Fed. R. Civ. P. 11(c).
105. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
106. Id. (non-monetary sanctions include striking the offending filing, admonition, reprimand, or censure; attendance at continuing legal education courses; or referral to disciplinary authorities).
107. Id. See also Methode Elecs. v. Adam Techs., 371 F.3d 923, 926 (7th Cir. 2004) (court cannot award attorney’s fees as a sanction sua sponte); Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 57 (2d Cir. 2000) (“[A]bsent a specific motion for attorneys’ fees, the court only had authority to order sanctions payable to the court.”).
108. Fed. R. Civ. P. 11(c)(2). See Rentz v. Dynasty Apparel Indus., 556 F.3d 389, 400 (6th Cir. 2009) (“[I]t is clear that Rule 11 is not intended to be a compensatory mechanism in the first instance, it is equally clear that effective deterrence sometimes requires compensating the victim for attorney fees arising from abusive litigation.”); but see Massengale v. Ray, 267 F.3d 1298, 1302 (11th Cir. 2001) (Rule 11 does not allow for an award of attorney fees to a pro se litigant as a sanction). At the same time, the court may account for the attorney’s financial condition in determining whether and the degree to which to issue monetary sanctions. DiPaolo v. Moran, 407 F.3d 140, 145-46 (3rd Cir. 2005).
109. Fed. R Civ. P. 11 advisory committee’s notes (1993); see also Rentz, 556 F.3d at 402 (finding that while a sanction of $250 against the young and inexperienced attorney was possibly enough to deter his repetition, it was insufficient to deter other attorneys).
110. Fed. R. Civ. P. 11(c). See also Bus. Guides, 498 U.S. 533, 544-48 (1991) (Rule 11 applies to represented parties who sign court filings). A court may not, however, sanction a represented party for advancing a frivolous legal argument. It is the solely the counsel’s responsibility to ensure there is adequate legal support. Fed. R. Civ. P. 11(c)(2)(A). Rule 11 also applies to pro se litigants, but may account for the pro se litigant’s financial situation in determining whether to award monetary sanctions. See Moore v. SouthTrust Corp., 392 F. Supp. 2d 724, 736 (E.D. Va. 2005).
111. This 1993 provision effectively overturns Pavelic & LeFlore v. Marvel Entm’t Group, 493 U.S. 120 (1989). The advisory committee’s notes justify this expansion of potential liability on the ground that the safe-harbor provision, discussed below, makes it appropriate to regard a law firm as jointly responsible for the sanctionable conduct of its agents. Fed. R Civ. P. 11 advisory committee’s notes (1993); but see Rentz, 556 F.3d at 397 (upholding district court’s decision not to sanction law firm where attorney violated Rule 11 just after joining the firm in a case the attorney brought with him and with which others at the firm had little to no involvement).
112. While there are no decisions holding legal service organizations jointly accountable, examples of government agencies being held jointly accountable may be instructive. See, e.g., MAXXAM, 523 F.3d 566, 583-84 (5th Cir. 2008) (imposing sanctions against the FDIC as a whole); see also Columbia Venture LLC v. FEMA (In re Bees), 562 F.3d 284 (4th Cir. 2009) (sanctions had been imposed against FEMA as a whole, and against individual attorney); but see 1-10 Industry Associates LLC v. United States, 528 F.3d 859 (Fed. Cir. 2008) (sanctions levied against individual attorney at the Department of Justice) (sanctions reversed on other grounds).
113. Fed. R. Civ. P. 11 advisory committee’s notes (1993).
114. Fed. R. Civ. P. 11(c)(1)(A). Counsel is expected to give informal notice prior to drafting and serving such a motion. Fed. R. Civ. P. 11 advisory committee’s notes (1993). While the Rule encourages informal resolution, counsel must be sure to serve an actual copy of the motion for sanctions twenty-one days prior to filing with the court. See Roth v. Green, 466 F.3d 1179 (10th Cir. 2006) (the court found that an informal letter addressed to the offending party did not suffice to satisfy the safe harbor requirements when the plain language of the Rule required a copy of the actual motion). See also Gordon v. Unifund CCR Partners, 345 F.3d 1028, 1029 (8th Cir. 2003) (reversing award of Rule 11 sanction when movant did not comply with safe harbor provisions). However, the Seventh Circuit has held that a letter sent to an offending party can constitute “substantial compliance” with Rule 11(c)(1)(A). See Nisenbaum v. Milwaukee County, 333 F.3d. 804, 808 (7th Cir. 2003). Additionally, the Fourth Circuit has held that the safe harbor provisions are not jurisdictional and therefore waivable. Brickwood Contractors, Inc. v. Datanet Eng’g. Inc., 369 F.3d 385, 393 (4th Cir. 2004) (en banc); Rector v. Approved Fed. Sav. Bank, 265 F.3d 248, 253 (4th Cir. 2001).
115. Barber v. Miller, 146 F.3d 707, 710 (9th Cir. 1998).
116. Fed. R. Civ. P.11(c)(1)(B); see 1-10 Industry Associates LLC v. United States, 528 F.3d 859, 867 (Fed. Cir. 2008); Johnson v. Cherry, 422 F.3d 540, 551-53 (7th Cir. 2005); Plaintiffs’ Baycol Steering Committee v. Bayer Corp., 419 F.3d 794, 809-10 (8th Cir. 2005).
117. See In re DeVille, 361 F.3d 539, 549 (9th Cir. 2004; Margo v. Weiss, 213 F.3d 55, 64 (2d Cir. 2000).
118. See Columbia Venture LLC, 562 F.3d 284, 287 (4th Cir. 2009) (internal quotations omitted). Additionally, because the Advisory Committee’s notes to Rule 11(c)(3) explained that “show cause orders will ordinarily be issued only in situations that are akin to a contempt of court” and therefore do not require a “safe harbor” provision, at least one Circuit has required a finding of subjective bad faith when the sanctions are imposed sua sponte and the lawyer has no opportunity to withdraw or amend the filing. See In re Pennie & Edmonds LLP, 323 F.3d 86 (2d Cir. 2003) (“We conclude that where, as here, a sua sponte Rule 11 sanction denies a lawyer the opportunity to withdraw the challenged document pursuant to the ‘safe harbor’ provision of Rule 11(c)(1)(A), the appropriate standard is subjective bad faith.”); see also ATSI Commun., Inc. v. Shaar Fund, Ltd., 579 F.3d 143 (2d Cir. 2009) (stating that subjective bad faith should be required if the sanctions proceeding is initiated “’long after’ the lawyer had an opportunity to amend or withdraw”). Other circuits have declined to follow. See, e.g., Jenkins, 478 F.3d at 264; Young v. City of Providence ex rel. Napolitano, 404 F.3d 33, 40 (1st Cir. 2005) (declining to follow Pennie). Some circuits have been careful to avoid the issue. See, e.g., Lucas, 574 F.3d 772, 776 (D.C. Cir. 2009); 1-10 Industry Associates, LLC, 528 F.3d at 866; Kaplan v. DaimlerChrysler, A.G., 331 F.3d 1251, 1256 (11th Cir. 2003).
119. Fed. R. Civ. P.11(c)(3).
120. See, e.g., S. Travel Club Inc. v. Carnival Air Lines, 986 F.2d 125, 129-30 (5th Cir. 1993); Cooper v. Salomon Bros. Inc., 1 F.3d 82, 84-85 (2d Cir. 1993); Click v. Abilene Nat’l Bank, 822 F.2d 544, 545 (5th Cir. 1987); cf. Morley v. Ciba-Geigy Corp., 66 F.3d 21, 22 n.1 (2d Cir. 1995); Triad System Corp. v. Se. Express Co., 64 F.3d 1330, 1338 (9th Cir. 1995); Transamerica Commercial Finance Corp. v. Banton Inc., 970 F.2d 810, 814 (11th Cir. 1992); Burda v. M. Ecker Co., 954 F.2d 434, 439 (7th Cir. 1992); Riverhead Sav. Bank v. Nat’l Mortgage Equity Corp., 893 F.2d 1109, 1113-14 (9th Cir. 1990); DeSisto College Inc. v. Line, 888 F.2d 755, 762 (11th Cir. 1989); Markwell v. County of Bexar, 878 F.2d 899, 901 (5th Cir. 1989); Ortho Pharmaceutical Corp. v. Sona Distrib., 847 F.2d 1512, 1515 (11th Cir. 1988).
121. Nyer v. Winterthur Int’l, 290 F.3d 456, 460 (1st Cir. 2002); see also Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405 (1990).
122. See Lucas, 574 F.3d at 775.
123. Oliveri v. Thompson, 803 F.2d 1265, 1273 (2d Cir. 1986) (internal citations omitted).
124. Id. at 1276; see also Dreiling v. Peugot Motors of America, 768 F.2d 1159, 1165 (10th Cir. 1985).
125. BDT Prods. v. Lexmark Int’l, Inc., 602 F.3d 742 (6th Cir. 2010); Claiborne v. Wisdom, 414 F.3d 715 (7th Cir. 2005).
126. 28 U.S.C. § 1927 , amended by Antitrust Procedural Improvements Act of 1980, Pub. L. No. 96-349, § 3, 94 Stat. 1154, 1156. See generally Janet Eve Josselyn, The Song of the Sirens-Sanctioning Lawyer Under 28 U.S.C. § 1927, 31 B.C. L. Rev. 477, 478 (1990). Additionally, courts may be using § 1927 more frequently as a result of the 1993 amendments to Rule 11, which instituted the 21 day safe harbor provision. Since voluntarily withdrawn filings are not sanctionable, parties may be attempting to “sidestep” Rule 11 in the hope of getting attorney’s fees under § 1927. See generally, Hart, supra note 54, at 653 (arguing that “sidestepping” accounts for the increased use of § 1927, and that this phenomenon defeats the purpose of the 1993 revision of Rule 11, which was supposed to remove the chilling effect suffered by civil rights litigants engaged in attempting good faith extensions of the law).
127. The court’s inherent power to sanction is broader still in that it permits sanctions for conduct beyond the filing of documents or “multiplying” proceedings. Yet, it requires a finding of bad faith for an award of attorney’s fees. Chambers v. NASCO, Inc., 501 U.S. 32, 43-46 (1991).
128. United States v. Int’l Bhd. of Teamsters, 948 F.2d 1338, 1345-46 (2d Cir. 1991).
129. The filing of complaint is not sanctionable under Section 1927 because that section applies only to activities occurring after the commencement of litigation. See Willis v. City of Oakland, 231 F.R.D. 597, 598 (N.D. Cal. 2005).
130. Jensen v. Phillips Screw Co., 546 F.3d 59, 65 (1st Cir. 2008).
131. See id.; Trulis v. Barton, 107 F.3d 685, 694 (9th Cir. 1995); Oliveri, 803 F.2d 1265, 1273 (2d Cir. 1986). Although the matter is not free from doubt, law firms may not be sanctioned under Section 1927. Claiborne v. Wisdom, 414 F.3d 715, 723 (7th Cir. 2005).
132. Lee v. L.B. Sales Inc., 177 F.3d 714, 718 (8th Cir. 1999). See also Claiborne, 414 F.3d at 721; United States v. Knott, 256 F.3d 20, 31 (1st Cir. 2001); Braley v. Campbell, 832 F.2d 1504, 1512 (10th Cir. 1987) (en banc); Naegele v. Albers, 355 F. Supp. 2d 129, 145 (D.D.C. 2005).
133. See Hart, supra note 54, at 653.
134. Johnson v. Cherry, 422 F.3d 540, 551-52 (7th Cir. 2005).
135. Jones v. Pitt. Nat’l Corp., 899 F.2d 1350, 1359 (3rd Cir. 1990); see also Int’l Bhd., 948 F.2d 1338, 1346 (2d Cir. 1991); United States v. Shuch, 139 B.R. 57, 62 (D. Conn. 1992).
136. Matter of Yagman, 796 F.2d 1165, 1184 (9th Cir. 1986) (reversing the district court’s award of fees under Section 1927).
137. See Hart, supra note 54, at 653.
138. Chambers, 501 U.S. 32, 42 (1991) (quoting NASCO, Inc. v. Calcasieu Television & Radio, Inc., 894 F.2d 696, 702 (5th Cir. 1990)).
139. Id. at 46, 49 (“The Court’s prior cases have indicated that the inherent power of a court can be invoked even if procedural rules exist which sanction the same conduct.”).
141. See id. at 44.
142. See id. at 46, 57 (“As long as a party receives an appropriate hearing . . . the party may be sanctioned for abuses of process occurring beyond the courtroom . . . .”).
143. See id. at 44-45.
144. See id. at 45.
145. Id; Amlong & Amlong v. Denny’s, Inc., 500 F.3d 1230, 1251 (11th Cir. 2007).
146. Chambers, 501 U.S. at44 (“Because of their very potency, inherent powers must be exercised with restraint and discretion.”); Methode Elecs., 371 F.3d at 927.
147. Chambers, 501 U.S. at 50 (“A court must . . . comply with the mandates of due process, both in determining that the requisite bad faith exists and in assessing fees.”).
148. Id. at 55.
149. See Jeffrey P. Justman, Capturing The Ghost: Expanding Federal Rule of Civil Procedure 11 To Solve Procedural Concerns With Ghostwriting, 92 Minn. L. Rev. 1246, 1252 (2008).
150. Id. at 1252.
151. Model Rules of Prof’l Conduct 1.2(c).
152. Compare Duran v. Carris, 238 F.3d 1268, 1273 (10th Cir. 2001) (participating in drafting an appellate brief constitutes “per se substantial assistance” in violation of Rule 11) with Ricotta v. California, 4 F. Supp. 2d 961, 986-87 (S.D. Cal. 1998) (distinguishing ghostwriting from mere “informal advice”).
153. See Ricotta, 4 F. Supp. 2d 961 at 987.
154. See, e.g., Justman, supra note 149, at 1248; see also John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev. 2687, 2697 (1999).
155. See, e.g., Michael W. Loudenslager, Giving Up The Ghost: A Proposal For Dealing With Attorney “Ghostwriting” of Pro se Litigants’ Court Documents Through Explicit Rules Requiring Disclosure And Allowing Limited Appearances For Such Attorneys, 92 Marq. L. Rev. 103 (2008).
156. Johnson v. Board of County Comm’rs, 868 F. Supp. 1226 (D. Colo. 1994).
157. See, e.g., Justman, supra note 149, at 1259 (2008) (quoting Conn. Bar Ass’n Comm. on Prof’l Ethics, Informal Op. 98-5 (1998)).
158. See Loudenslager, supra note 155, at 110-12 (2008).
159. See id; see also Justman, supra note 149, at 1248 .
160. ABA Comm on Ethics & Prof’l Responsibility, Formal Op. 07-446 (2007) (the opinion superseded ABA Inf. Op. 1414 (June 6, 1978) which “took a middle ground, stating that disclosure of at least the fact of legal assistance must be made to avoid misleading the court and other parties, but that the lawyer providing assistance need not be identified.”).
161. Id. (“We conclude that there is no prohibition in the Model Rules of Professional Conduct against undisclosed assistance to pro se litigants, as long as the lawyer does not do so in a manner that violates rules that otherwise would apply to the lawyer’s conduct.”).
162. See Loudenslager, supra note 155, at 127-38 (discussing the range of positions taken by various ethics committees).
163. See, e.g., Arizona Eth. Op. 05-06 (Limited Scope Representation; Candor to Tribunal; Fees) (“The attorney providing limited scope representation is not required to disclose to the court or other tribunal that the attorney is providing assistance to a client proceeding in propria persona.”).
164. See, e.g., N.Y. City Bar Ass’n Comm. on Prof’l & Judicial Ethics, Formal Op. 1987-2 (1987) (New York, when confronted with ghostwriting took the position that “[a]t the minimum, the court and adverse counsel must be informed that the litigant is, or will be, ‘receiving assistance from a lawyer.’ It would be appropriate to endorse the pleading, ‘Prepared by Counsel.'”).
165. See, e.g., Ky. Bar Ass’n, Ethics Op. E-343 (1991).
166. See Loudenslager, supra note 155, at 142-48 .
167. See, e.g., Gordon v. Dadante, 2009 U.S. Dist. LEXIS 54147, 2009 WL 1850309, at *27 (N.D. Ohio Jun. 26, 2009); Bittle v. Electrical Ry. Imp. Co., 576 F. Supp. 2d 744, 755 n.9 (M.D.N.C. 2008); In re Brown, 354 B.R. 535, 541-42 (Bkrtcy. N.D. Okla. 2006) (The court, interpreting the bankruptcy court’s equivalent to Rule 11 noted that “Ghostwriting is a practice which has been met with universal disfavor in the federal courts.”); Duran v. Carris, 238 F.3d 1268, 1272 (10th Cir. 2001); Ellis v. State of Me., 448 F.2d 1325 (1st Cir. 1971) (“What we fear is that in some cases actual members of the bar represent petitioners, informally or otherwise, and prepare briefs for them which the assisting lawyers do not sign, and thus escape the obligation imposed on members of the bar, typified by F.ed R. Civ. P. 11 . . . .” ); Laremont-Lopez v. Southeastern Tidewater Opportunity Ctr., 968 F. Supp. 1075, 1078-79 (E.D. Va. 1997) (“The Attorneys’ reasoning, while not at odds with the plain language of Rule 11, undermines the purpose of the signature certification requirement of the rule.”); Johnson v. Board of County Com’rs, 868 F. Supp. 1226, 1231-32 (D. Colo. 1994).
168. Johnson, 868 F. Supp. at 1232; see also Duran, 238 F.3d at 1273.
169. Laremont-Lopez, 968 F. Supp. at 1078.
170. See Duran, 238 F.3d at 1273 (threatening to sanction attorneys for future violations); Davis v. Bacigalupi, 2010 U.S. Dist. LEXIS 42031 at *43-44 (E.D. Va. April 29, 2010); Kircher v. Township of Ypsilanti, 2007 U.S. Dist. LEXIS 93690 at *11 (E.D. Mich. Dec. 21, 2007); Johnson, 868 F. Supp. at 1232.
171. Delso v. Trs. Ret. Plan Hourly Emp., No. 04-3009, 2007 U.S. Dist. LEXIS 16643 at *37-56 (D.N.J. Mar. 5, 2007).
172. See Laremont-Lopez, 968 F. Supp. at 1077.
173. See Duran, 238 F.3d at 1273; Ricotta v. California, 4 F. Supp. 2d 961, 987-88 (S.D. Cal. 1998) (suggesting that local rule, and bar associations should address ghostwriting directly); Johnson, 868 F. Supp. at 1227 (declining to impose sanctions despite a finding that attorney engaged in inappropriate ghostwriting).
174. Johnson v. City of Joliet, 2007 U.S. Dist. LEXIS 10111 at *8 (N.D. Ill. Feb. 13, 2007).
175. See Gordon v. Dadante, 2009 U.S. Dist. LEXIS 54147, 2009 WL 1850309, at *27 (N.D. Ohio Jun. 26, 2009) (“This Court will continue to strike ghostwritten submissions from any party and will, in the future, entertain motions for contempt against a party submitting ghostwritten material.”).
176. See Laremont-Lopez, 968 F. Supp. at 1077 n.2. See generally Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 795 n.7 (1987) (affirming the inherent authority of courts to punish for contempt).
177. Laremont-Lopez, 968 F. Supp. at 1079 (“[T]he practice of ghost-writing pleadings or motions for otherwise pro se litigants allows attorneys to circumvent Local Rule 83.1(G) which provides that once an attorney has entered an appearance in a civil or criminal action, withdrawal is permitted only by order of the court, and after reasonable notice to the party represented.”).
178. Johnson, 868 F. Supp. at 1232 (suggesting that ghostwriting constitutes extensive undisclosed assistance to a pro se litigant in violation of then Model Code of Professional Responsibility DR 1-102(A)(4)).
179. See Fed. R. Civ. P. 11; Wesley v. Don Stein Buick Inc., 987 F. Supp. 884, 886 (D. Kan. 1997); Laremont-Lopez, 968 F. Supp. at 1078-79; Johnson, 868 F. Supp. at 1231 (focusing on the risk that ghostwriting will enable attorneys to sidestep Rule 11’s certification requirement that “allegations and factual contentions have evidentiary support”); Rothermich, supra note 154, at 2716-18 (1999).
180. Laremont-Lopez, 968 F. Supp. at 1077 n.2.
182. Model Rule of Professional Conduct 1.16 (2007); See also Jona Goldschmidt, In Defense of Ghostwriting, 29 Fordham Urban L.J. 1145,1175-78 (2002).
4.3 Filing the Action
4.3.A. Filing and Service
To file a complaint in federal district court, you must either pay the filing fee of $350 or file a motion for leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. The district court may also have a form “cover sheet” to be filled in by counsel when the complaint is filed. The cover sheet seeks information about the nature of the case and the existence of any related case or cases. Local rules typically define a “related” case. Counsel, not support staff, should complete the cover sheet. Check your local rules and Clerk’s Office regarding policies and procedures for the electronic filing and service of documents. Typically, counsel will provide the Clerk’s Office with a CD-ROM containing the complaint, which the Clerk will upload to the Electronic Case Filing system.
After the complaint is filed, the Clerk issues as many summonses as may be necessary./183/ Plaintiff’s counsel is responsible for effecting service of the summonses and complaint within 120 days of filing the complaint./184/ Service must be made by a nonparty older than 18./185/ Federal Rule of Civil Procedure 4 sets forth the rules for serving individuals, business entities and governments. Note that following the state law of service is permissible when serving individuals or minors or incompetent persons./186/
Federal Rule of Civil Procedure 4(d) encourages individuals, corporations, and associations to waive formal service requirements by imposing the costs of service if they refuse to do so. The request for waiver is initiated by the plaintiff. The plaintiff’s request must (1) be written; (2) in conformity with the federal “Notice and Request for Waiver” form (Form 5), indicating dates and consequences of noncompliance; (3) include a copy of the complaint; (4) contain a copy of the notice; (5) include a prepaid method for the defendant to respond, and (6) be sent by first-class mail or “other reliable means” directly to the individual subject to, or authorized to accept, service./187/ Following receipt of the request for waiver, the defendant has thirty days to respond (sixty days if outside the United States) or will be subject to a motion to recover service expenses and costs. If the defendant returns the waiver (Form 6), proof of service is not required, and the defendant has sixty days from the date of request to answer (or ninety days if outside the United States)./188/ This extended time to answer may counsel against seeking waiver in cases that are time-sensitive./189/ This procedure does not apply to cases against the United States, it’s officers, agents, or other government-related entities./190/
The complaint may be supplemented by documentary material. If the case involves regulations, handbooks, or other administrative material that are not readily available to the judge, reproduce that material in an addendum to the complaint. If is not typical to attach exhibits to a complaint, but consider doing so if there is an unusually significant documents that you want the court and the defendant to know of at the outset of the case.
4.3.B. In Forma Pauperis Status
Proceeding in forma pauperis allows your client to avoid service, filing, and transcript preparation costs if the client can demonstrate inability to pay such fees./191/ The requisite level of indigence is relatively fluid and within the discretion of the court./192/ As a baseline, the Supreme Court has held that an applicant need not be “absolutely destitute” to qualify for IFP status./193/ Several factors that may be relevant are (1) possible aid from friends or relatives, (2) possible aid from charities, (3) regular employment, (4) earning power, (5) unencumbered assets, (6) retention of counsel, and (7) the particular cost relative to the applicant’s financial means. That the applicant is receiving free legal services should not be a relevant factor./194/ When filing in forma pauperis, determine whether the district court has a form in forma pauperis package, consisting of a motion, a statement of points and authorities, a declaration of the plaintiff, and a proposed order. If the form does not contain a section for listing liabilities and expenses, and if such information is relevant to the court’s consideration of the petition, consider including such information./195/ If the court does not supply such forms, you need to submit an affidavit stating your client’s assets and inability to pay, as well as the nature of the action, defense, or appeal and belief that your client is entitled to redress./196/
In forma pauperis motions generally are ruled on by a designated judge without a hearing. The complaint is only lodged, not filed, until the motion for leave to proceed in forma pauperis is granted. The Clerk’s Office staff will tell you when to return for your summonses. The U.S. Marshal performs service for plaintiffs proceeding in forma pauperis, but this usually involves much delay./197/ Thus, seeking permission from the court to effectuate service yourself may be advisable in cases that are time-sensitive. Only natural persons, not groups or associations, may file motions for in forma pauperis status./198/ If the court later determines that the allegations of poverty are untrue, the action is frivolous or malicious, fails to state a claim for which relief can be granted, or monetary redress is being pursued against an individual immune from such relief, the court will dismiss the case./199/ Costs may be taxed against an unsuccessful plaintiff who proceeded in forma pauperis./200/ Denials of motion for in forma pauperis status are immediately appealable./201/
183. Fed. R. Civ. P. 4(b).
184. Id. 4(c)(1), 4(m). See Lepone-Dempsey v. Carroll County Comm’rs, 476 F.3d 1277, 1281-82 (11th Cir. 2007) for a discussion of the circumstances in which good cause would permit and extension of the 120 day service period and the discretion of the court to extend the period in the absence of good cause. See also Coleman v. Cranberry Baye Rental Agency, 202 F.R.D. 106, 109 (N.D.N.Y. 2001).
185. Id. 4(c)(2).
186. Id. 4(e)(1), 4(g).
187. Id. 4(d)(2).
188. Id. 4(d)(3); 12(a)(1)(B).
189. If the plaintiff chooses not seek a waiver of service, the costs of service may nevertheless taxed under 28 U.S.C. § 1920 if the plaintiff prevails. Powell v. Carey Int’l, Inc., 548 F. Supp. 2d 1351, 1357-58 (S.D. Fla. 2008).
190. Lepone-Dempsey, 476 F.3d at 1281 (11th Cir. 2007).
191. See 28 U.S.C. § 1915.
192. See Lewis v. Center Market, 2009 U.S. Dist. LEXIS 114184 *7-9 (D.N.M. Oct. 29, 2009) (“[T]he federal standards for IFP are not a bright-line percentage rule, but rather, rely on the discretion of the court.”).
193. Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 338-40 (1948).
194. Dillard v. Liberty Loan Corp., 626 F.2d 363, 364 (4th Cir. 1980).
195. See Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1308 (11th Cir. 2004).
196. 28 U.S.C. § 1915(a)(1). .While § 1915(a)(1) refers to a ‘statement of all assets such prisoner possesses,’ the statement applies to non-prisoners as well. See Floyd v. United States Postal Serv., 105 F.3d 274, 275 (6th Cir. 1997); Lewis, 2009 U.S. Dist. LEXIS 114184 at *6. Prisoners are subject to additional requirements when proceeding in forma pauperis. For example, they must submit a certified copy of the trust fund account statement for the preceding six-month period and may be subject to a partial filing fee drawn from their prisoner’s account. See 28 U.S.C. § 1915(a)(2), (b)(1). They are also subject to the “three strikes” rule set forth in 28 U.S.C. § 1915(g).
197. Garrett v. Miller, 2003 U.S. Dist. LEXIS 5248 at *6, 2003 WL 1790954 (N.D. Ill. Apr. 1, 2003) (Plaintiff was granted significant extension of time for service of process in order to accommodate the Marshall); Fed. R. Civ. P.4(c)(2).
198. Rowland v. Cal. Men’s Colony, 506 U.S. 194, 197 (1993).
199. 28 U.S.C. § 1915(e)(2). In addition, prisoners may not file a civil action or appeal a civil judgment if the prisoner has previously filed three or more actions that were dismissed while incarcerated unless the prisoner is “under imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
200. Olson v. Coleman, 997 F.2d 726, 728 (10th Cir. 1993); 28 U.S.C. § 1915(f).
201. See Lister v. Dep’t of Treasury, 408 F.3d 1309, 1310-11 (10th Cir. 2005) (“Although the district court’s ruling is not a final order, ‘denial by a District Judge of a motion to proceed in forma pauperis is an appealable order’ under the Cohen doctrine.”); see also Roberts v. United States District Court, 339 U.S. 844, 844 (1950).
Chapter 5: Causes of Action
This Chapter discusses several bases for suing to enforce rights created by federal law. To sue in federal court, plaintiffs must have a “cause of action.” The term has a special, particularized meaning in federal litigation. Most lawyers use the term “cause of action” synonymously with the term “legal claim” to indicate a client’s legal right that the defendant has violated. In federal litigation, however, a party has a cause of action only if his or her legal rights have been violated and he or she has a recognized constitutional and/or statutory right to redress the violation by bringing an affirmative action in federal court. The Supreme Court has explained the cause of action concept and compared it to the related, but distinct, concepts of jurisdiction, standing, and relief in the following terms:
[I]t may be said that [j]urisdiction is a question of whether a federal court has the power, under the Constitution or laws of the United States, to hear a case …; standing is a question of whether a plaintiff is sufficiently adversary to a defendant to create an Art. III case or controversy, or at least to overcome prudential limitations on federal-court jurisdiction …; cause of action is a question of whether a particular plaintiff is a member of the class of litigants that may, as a matter of law, appropriately invoke the power of the court; and relief is a question of the various remedies a federal court may make available. A plaintiff may have a cause of action even though he be entitled to no relief at all, as, for example, when a plaintiff sues for declaratory or injunctive relief although his case does not fulfill the “preconditions” for such equitable remedies./1/
The substantive rights at issue may arise from the federal Constitution, statutes, or regulations. An individual plaintiff’s basis to enforce an asserted statutory right through litigation – a “private right of action” may be derived from express language in a statute creating the right, from other federal statutes that provide a vehicle for the enforcement of rights created by the Constitution and laws of the United States, or by implication from the source of the right.
This Chapter will not address statutes that both create rights and express remedies for violations of those rights./2/ Instead, it will first analyze umbrella statutes that provide a general right to sue for violations of rights arising under other sources of federal law that do not themselves specifically provide the right to sue. This chapter will then analyze causes of action claimed to arise by implication from other sources of federal law. Finally, third party beneficiary claims are discussed.
1. Davis v. Passman, 442 U.S. 228, 239-40 n.18 (1979) (citations omitted). For a helpful overview of potential claims, see Rochelle Bobroff, You Have a Federal Right, but Do You Have a Remedy?, 44 Clearinghouse Review 428 (Jan.-Feb. 2011).
2. The authors presume that legal aid advocates have familiarity with the specific statutes relevant to their particular practice. Examples of statutes creating express rights and remedies include: (1) anti-discrimination statutes, such as 42 U.S.C. §§ 1981 (contracts), 1982 (property), 1985 (conspiracy), 2000d-2 (federally assisted programs), 2000e-5 et seq. (employment), and 45 U.S.C. § 3612 (housing); the Rehabilitation Act of 1973, 29 U.S.C. § 794; the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400 et seq.; the minimum wage and maximum hours provisions of the Fair Labor Standards Act, 29 U.S.C. § 216(b); and the Consumer Credit Protection Act provisions, such as 15 U.S.C. §§ 1640 (truth in lending), 1691e (equal credit opportunity), and 1692k (debt collection practices). For further information on these statutes and many others of potential interest, please consult the list of specialized national support centers listed in the inside back cover of the Clearinghouse Review.