I expect Essay # 1 to post sometime next week and Essay # 2 to come shortly after.
Below is a sample essay and answer. Because we did not cover Rule 11 in detail, the analysis may not make much sense; don't worry about that. The point is to show you what the essay questions will look like and how you should approach your analysis and writing. Please refer to the post on writing tips for more.
You are counsel
for the plaintiff in Naruto v. Slater. The defendants
file a motion to dismiss the complaint; as part of that motion, they request
sanctions under Fed. R. Civ. P. 11. The motion states that the complaint
violates Rule 11(b)(1) and Rule 11(b)(2); it seeks sanctions from Naruto as plaintiff; PETA,
as next friend; and you, as counsel. The motion specifically requests attorney's fees as the appropriate sanction.
For purposes of this problem:
• The defendant's motion cites Wiggens, Ninth Circuit precedent holding that several federal statutes do not apply to non-humans absent clear congressional statement. The Copyright Act was not among the statutes Wiggens mentioned or discussed.
Explain why Rule 11 sanctions should not be imposed on you or on your client.
Sample Answer:
Defendants’ motion for Rule 11 sanctions should be denied, because nothing in the Complaint violated FRCP 11(b) and because the defendants did not seek sanctions in accordance with the required procedures of FRCP 11(c).
By signing and filing a paper, such as a Complaint, with the court, a party and its attorney certify certain things about the paper, based on the best of their knowledge and following an inquiry “reasonable under the circumstances.” FRCP 11(b). Defendants identify two alleged defects in the Complaint.
A party may not submit a paper for “any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.” FRCP 11(b)(1). Nothing indicates plaintiff this Complaint to harass Slater or any other defendant or to delay or increase the cost of litigation. The Complaint was filed to establish the legal rights of a non-human animal to his creative work. To be sure, the lawsuit furthers the political efforts of People for the Ethical Treatment of Animals (“PETA,” one of the next friends bringing this action) to champion the “principle that as sentient beings, animals have rights that are or should be recognized in law and protected by courts.” (Compl. ¶ 18). But filing an otherwise-meritorious legal action with underlying political goals does not constitute an improper purpose.
"[T]he claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.” FRCP 11(b)(2). The Advisory Committee Notes to the 1993 Amendments recognize that the rule establishes an objective standard for when an argument for changing the law is nonfrivolous; the point is to “eliminate any ‘empty-head pure-heart’ justification for patently frivolous arguments.” But the rule should not be read “to chill an attorney's enthusiasm or creativity in pursuing legal theories.” ACN, 1983 Amendments. It requires some indication that an attorney has researched and found support for the arguments. And while plaintiff need not identify an argument for a change in law, courts should show greater tolerance for identified efforts. ACN, 1993 Amendments.
No controlling law bars the copyright claims in this case. The Copyright Act does not expressly preclude protections for rights for non-human animals or civil actions by non-human animals to enforce those rights, and no binding (or non-binding) case law interprets Act to preclude such rights. While the motion points to Wiggens as binding Ninth Circuit authority holding that Congress must expressly provide non-human animals with a right to sue under a statute (concededly absent from the Copyright Act), the Copyright Act was not among the statutes Wiggens addressed for that point. Moreover, the Complaint recognized that this claim was “novel," but that the language of the Act was sufficiently broad to allow such protections (¶ 5). Plaintiff, his next friends, and counsel understood the current state of the law and explicitly and knowingly argued for changes to the law.
Even if the court finds that the Complaint violated FRCP
11(b)(1) or (2), sanctions are not warranted in this case. FRCP 11(c)(2), as
amended in 1993, imposes procedural obligations ton sanctions motions, which defendants failed to follow.
A“motion for sanctions must be made separately from any other motion,” FRCP 11(c)(2); it cannot be included in a broader motion or made as an additional request for relief in another motion. ACN, 1993 Amendments. That separate motion must be served on the opposing party, but may not be filed unless, after 21 days, the opposing party has not withdrawn or otherwise cured the sanctionable conduct. FRCP 11(c)(2); ACN, 1993 Amendments. The Committee describes this as a “safe harbor,” designed to protect a party against sanctions unless, after given sufficient time and opportunity, the party chooses to stand by its position. ACN, 1993 Amendments. The 21-day clock begins on service of the motion. ACN, 1993 Amendments. And many courts require strict adherence to the safe harbor. The safe harbor was intended to protect litigants from sanctions wherever possible, so as to avoid chilling attorneys from pursuing vigorous advocacy. Roth (10th Cir.). Roth held, for example, that a detailed letter providing informal notice of intent to seek sanctions did not trigger the 21-day cure period; only the formal motion sufficed.
Defendants' motion for sanctions ran afoul of FRCP 11(c)(2) in two respects. Defendants did not file a separate motion for sanctions, instead folding the request for sanctions with the motion to dismiss. They then improperly filed and served that consolidated motion on the same day, rather than complying with the safe harbor by serving the motion and giving the plaintiff 21 days to withdraw or cure. They never granted plaintiff the required sufficient and meaningful opportunity to withdraw or cure its papers prior to filing the motion.
Finally, even if the court believes that the procedural defects in the motion do not preclude sanctions, the court should proceed with two points in mind. First, the court is not obligated to impose sanctions for a violation; FRCP 11(c)(1) provides that a court “may impose” a sanction, leaving it discretion not to impose any sanction. The Advisory Committee identifies a number of considerations to guide the court’s discretion. ACN, 1993 Amendments. Given the novelty of plaintiff's legal argument here and the plaintiff’s express awareness of that novelty and the need to adopt a broader interpretation of copyright law, sanctions are particularly unwarranted.
Second, a monetary sanction cannot be imposed against a represented party for a violation of FRCP 11(b)(2)’s requirements that claims be well-grounded in the law. Thus, any monetary sanction (whether attorney’s fees or money paid to the court) cannot run against Naruto or his next friends, only against counsel.
