CIVIL PROCEDURE CLASS 15

Professor FischerColumbus School of Law

The Catholic University of America

Sept. 29, 2003

When will an amended claim “relate back”?

What is the applicable provision of the FRCP?

CASE LAW ON RELATION BACK - Worthington v.

Wilson

FRCP 15(c) An amended claim will “relate back” to the original

pleading where: 1. The claim or defense in amended pleading arose

out of the same “CONDUCT, TRANSACTION, OR OCCURRENCE” as set out in the original pleading 15(c ) (2)

2. The APPLICABLE LAW ON THE STATUTE OF LIMITATIONS allows relation back. 15(c ) (1)

3. If you are amending to add NEW PARTIES or CHANGING NAME OF PARTY, (1) above applies AND it is not unfair to relate back because the special conditions in 15 (c ) (3) apply.

DON’T FORGET THAT GENERAL RULES FOR AMENDMENTS in 15(a) or (b) STILL APPLY!

FRCP 15(c ) (3): Amendment Changing Parties in Complaint Will

Relate Back If:

Within the 120 day service deadline period under 4(m), the party to be added:

1. Has notice of the action and will not be prejudiced in her defense; AND

2. Knew or should have known that the action would have been brought against her if there had not been a mistake;

AND 3. 15( c) (2) applies.

IMPORTANT PREREQUISITE FOR RELATION BACK

Before there can be relation back, the party seeking amendment must convince court that amended pleading is permitted under FRCP 15(a) or (b).

A Comparison of federal and state law on relation back - MA

How does the applicable Massachusetts law in Christopher v. Duffy differ, if at all, from FRCP 15 (c )?

HYPO ON RELATION BACK

Jim, a pedestrian, brings a claim in negligence against Barry, the driver of a car that struck him. Jim moves to amend to add a claim that Barry negligently failed to stop and render appropriate aid at the scene of the accident. If granted, will this amendment relate back under Rule 15 (c )? Why or why not?

ANOTHER HYPO Erik is angry about a statement made by

Professor Fischer in a class hypothetical on 8/27/00 He files a libel action in federal court for the District of Maryland on 9/12/00 naming “Marianne” Fischer as D in his complaint. Erik serves the complaint by personal service on Professor Fischer at the law school on 9/15/00. Assume the statute of limitations is 1 year. Erik learns that Professor Fischer’s first name is not “Marianne” but “Susanna”. On 9/18/01 Erik moves to amend his complaint to change the defendant’s name to “Susanna”. Will the amendment relate back?

SUPPLEMENTAL PLEADINGS

When and why would a court permit service of a “supplemental” pleading?

What rule governs supplemental pleadings?

MUST a party serve a supplemental pleading?

TIME LIMITS FOR RESPONDING TO AMENDED

PLEADINGS How long does a party have to

respond to an amended pleading? What is the governing FRCP?

Rule 11 of the FRCP

Attorneys and parties are subject to certain PROFESSIONAL STANDARDS when filing PLEADINGS, MOTIONS and other LITIGATION DOCUMENTS as well as “LATER ADVOCATING” allegations in these documents in ORAL ARGUMENT

Does not apply to DISCOVERY (11(d)) Failure to comply with Rule 11 MAY

RESULT IN SANCTIONS against attorney, firm, party

MAJOR REVISIONS TO RULE 11

1983 (very stringent: mandatory sanctions requiring lawyers to conduct adequate factual and legal investigation before bringing civil lawsuits)

1993 (eased this stringency)

PURPOSE OF RULE 11

What is the purpose of Rule 11?

SIGNATURE REQUIREMENTS

What signature requirements are laid down by Rule 11?

What provision of Rule 11 provides for these signature requirements?

STANDARDS PLEADINGS MUST MEET: RULE 11(b)

What does signing or filing a document with the court or later arguing on behalf of that document CERTIFY?

FRCP 11(b) certifications

FRCP 11(b)(1): [the document] is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

FRCP 11(b) certifications

FRCP 11(b)(2): the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

FRCP 11(b) certifications

FRCP 11(b)(3): the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery

FRCP 11(b) certifications

FRCP 11(b)(4): the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonable based on a lack of information or belief.

NONCOMPLIANCE WITH 11(b)

What happens if a party or attorney violates any of the certification requirements in 11(b)?

NON-COMPLIANCE WITH FRCP 11(b

FRCP Rule 11(c ) Attorney, law firm and/or party may be

SANCTIONED! Sanctions are discretionary

RULES FOR SANCTIONS MOTIONS

Separate motion 11(c)(1)(a) Sanctions motions must allege with

specificity the alleged violations of Rule 11(b)

Winning party may be awarded costs of sanctions motion 11©(1)(a)

SAFE HARBOR RULE

COURT-INITIATED SANCTIONS

If the court believes that Rule 11(b) has been violated, what is the procedure?

Does the safe harbor apply to court-initiated sanctions?

PLEASE NOTE: court-initiated sanctions are relatively rare and reserved only for grievously offending conduct similar to contempt of court

SANCTIONS

Policy of deterrence Types of sanctions Limits on monetary sanctions

PROGRESS FEDERAL SAVINGS BANK v.

NATWEST What is the court’s reasoning on

sanctions in this case?