Wednesday, January 25, 2017

Sample Essay (Both Sections)

After the jump, is an essay question from two years ago, along with a sample answer. It will give you a basic sense of what I am looking for in your answers and how it should be structured. Note that I am trying to be straight-forward: Give and explain the rule (starting with the statutory or FRCP text and then moving outward to other sources), then apply it to the facts. Note that there may be sub-issues, each demanding its own Rule/Explanation/Application.

One additional note, building on the Essay Instructions (which you all should have read): I do need full citations or bluebook form. It is enough to say FRCP ___ or § ____ or give the first name of a case. However, I expect you to be precise as to which part of a multi-part statute or rule you are citing to, getting to the most-specific language, as needed. And I expect that to be numbered and presented properly in terms of lower case or capital letters and the use of parens. Especially since you should not be time-crunched in doing this.

Rule numbering goes as follows:

FRCP Number(lower case)(Number)(Capital Letter)(Little Roman numerals, known as "Romanettes"). So:, if you are telling me the defendant has 21 days to file an Answer, you should cite: FRCP 12(a)(1)(A)(i).

Question and Sample Answer after the break:

In re James R. Arnold & Assoc. and James R. Arnold, Attorney

The Supreme Court of the United States has granted certiorari to the United States Court of Appeals for the Sixth Circuit in Penn LLC v. Proper Busines Dev. Corp. The Court granted review on the following two related questions (the answer to the first question significantly affects the second question):

   1) Whether the “Safe Harbor” in Fed. R. Civ. P. 11(c)(2) is triggered when the party seeking sanctions serves a letter announcing its intent to move for sanctions, or whether the rule requires that the party serve the actual motion that will be filed.
   2) Whether petitioners complied with Fed. R. Civ. P. 11(c)(2) in seeking sanctions.

There is a circuit split on this question. The Sixth Circuit came to the same conclusion as the Tenth Circuit in Roth v. Green (Leading Cases, p. 437) and other courts. On the other side of the split is the Seventh Circuit in Nisenbaum v. Milwaukee County, 333 F.3d 804 (7th Cir. 2003). The Supreme Court took the case to resolve the split.

You are an Associate Justice of the Court; write the analysis portion of the Opinion for the Court in this case.

For this essay, you may use the opinion being reviewed, the Seventh Circuit opinion, and all relevant course materials.

Sample Answer:

The issue before the Court is whether the 21-day “safe harbor” of FRCP 11(c)(2) requires the party seeking sanctions to serve a Motion for Sanctions, or whether it is sufficient for the seeking party to provide a letter of intent to seek sanctions or some other informal notice. For the reasons below, we conclude that FRCP 11(c)(2) requires the party to serve a motion to obtain sanctions. The petitioners thus failed to comply with Rule 11 and we affirm the denial of sanctions.

On December 6, 2010, Petitioners served plaintiff with a letter threatening to seek sanctions if the plaintiff did not withdraw its complaint by December 20; the letter described the “entire complaint” as frivolous and lacking a reasonable basis in law or fact to “remotely support” it. The letter also purported to be illustrative rather than exhaustive of the grounds for seeking sanctions and expressly reserved the right to assert additional grounds. On May 27, 2011, the district court granted petitioners’ motion to dismiss. On June 8, petitioners served plaintiff with a proposed Motion for Sanctions.

As amended in 1993, Rule 11 establishes what the Advisory Committee calls a “type of ‘safe harbor’” against sanctions. A “motion for sanctions must be made separately . . . and must describe the specific conduct that allegedly violates Rule 11(b).” FRCP 11(c)(2). That motion “must be served under Rule 5, but it must not be filed or be presented to the court” if the challenged paper is withdrawn or corrected within 21 days after service. FRCP 11(c)(2). The Advisory Committee describes the safe harbor’s purpose as ensuring a party will not be subject to sanctions unless it refuses to withdraw or cure the violative paper.

Several lower courts have held that a party cannot move for sanctions after dismissal of a claim. This gives effect to the safe harbor, which is designed to provide a party an opportunity to withdraw or cure in order to avoid sanctions. But if a claim already has been dismissed, there is no such opportunity. Roth. We agree. This interpretation is supported by the Advisory Committee Notes to the 1993 Amendment, which find in the safe harbor a requirement that a party cannot delay serving its sanctions motion until the conclusion of the case or judicial rejection of the challenged contention. As a result, petitioner’s actual Motion for Sanctions, filed almost two weeks after the claim against it had been dismissed, was improper under FRCP 11(c)(2).

Petitioners thus can obtain sanctions only if the December 6 letter of intent satisfies FRCP 11(c)(2). This is the subject of a circuit split. The Sixth Circuit below joined with the Tenth Circuit in Roth and most other circuits in holding that the safe harbor requires service of the actual motion. The lone outlier is the Seventh Circuit in Nisenbaum, which held that the Rule required only that the party “complied substantially” through a letter or other means of alerting an opposing party to the defects in its papers and of the intent to seek sanctions.

Examining the text, history, and policy underlying the 1993 Amendments to Rule 11 and the safe harbor, we conclude that the majority of circuits are correct that substantial compliance is insufficient and that the safe harbor requires service of the actual sanctions motion.

First, the text of FRCP 11(c)(2) expressly requires that sanctions be sought by “motion for sanctions” and that this motion be served but not filed for 21 days. This language contemplates that the very motion that would seek sanctions is the thing served. Moreover, FRCP 7(b) identifies a motion as a means for requesting a court order. FRCP 7(b). A letter or other demand, written to opposing counsel, cannot qualify as a motion and thus does not satisfy FRCP 11(c)(2).

The Committee Notes to the 1993 Amendment support this position. The Committee explains that the “’safe harbor’ period begins to run only upon service of the motion.” And a party will not be subject to sanctions “unless, after receiving the motion,” the party refuses to withdraw or correct the sanctionable paper. This means it is receipt of the motion, not some other paper, that triggers the 21-day period and the opportunity to correct or withdraw. Requiring the motion emphasizes the seriousness of a motion for sanctions and ensures that the alleged violation is defined precisely, so the party against whom sanctions are sought can fully understand what she allegedly did wrong and respond appropriately. Finally, the Committee recommends that counsel should be expected to provide informal notice, through phone call or letter (and in 2015 we could add email or text), of a potential Rule 11 violation, prior to preparing and serving a motion. This recommended informal notice must be different than the formal notice required by FRCP 11(c)(2) itself. It follows that, if a letter suffices for informal notice, something else--namely the motion itself--is necessary to provide the rule’s formal notice.

Third, lower courts have identified multiple policy concerns supporting the motion requirement. The Sixth Circuit below argued that a properly served motion signals the unambiguous seriousness of the opposing party’s intent to seek sanctions if the challenged paper is not withdrawn, whereas a “letter prompts the recipient to guess at his opponent’s seriousness” about seeking sanctions. A letter also may not sufficiently identify the “specific conduct” that allegedly violates Rule 11. The instant case illustrates that point, where petitioners identified some ways in which the complaint violated FRCP 11, but reserved the right to raise other arguments; this suggests that the letter was less than the complete statement of arguments one would see in a motion. Finally, the Tenth Circuit in Roth described the safe harbor’s purpose as protecting litigants from sanctions where possible by ensuring notice and encouraging withdrawal of violative papers. That goal demands strict, rather than merely substantial, compliance with the formalities of 11(c)(2). Petitioners’ failure to comply therefore warrants denial of the motion.

For the foregoing reasons, the Sixth Circuit is AFFIRMED.