As word of the McIntosh dismissal of extra-contractual claims made the rounds in the blogosphere, there were suggestions that Rule 11 concerns played a role – none, of course, bothering to explain what the Rule might be for those of us more familiar with Rule 42.
(b) Representations to the Court.
By 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: (emphasis mine below)
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the 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;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.
So, there it is and amazingly enough the suggestions were that 11b might be a concern to McIntosh counsel – and not State Farm – which leads me to conclude those suggesting such are subject to Rule 42.
Rule 42: All persons more than a mile high must leave the court immediately.
Without Rule 42, I’m at a loss to understand why Rule 11b hasn’t been mentioned before now: but, I suppose there’s a rule somewhere that allows harassment and so forth on the chance someone can be harassed to the point it provides “a reasonable opportunity for further investigation or discovery”. Maybe that’s the rule that some think justifies “discovery techniques” like waterboarding. I’ll have to look that up.
However, what I was looking up tonight when I remembered to check Rule 11 was something I’d read researching qui tam; and, that I found plus a little more.
…disclosure statements should convey only that information which is specific to the case and which might be the subject of proper discovery requests in a civil case.
In addition to liability for submitting a false claim, qui tam defendants can also be liable under 31 U.S.C. § 3729(a)(2), where they create records to support the false or fraudulent claim.
So, when these dispotive motions are decided, which rule will apply to the moving party – 11b or 42 or both?
So, this rule is saying that an attorney must believe that what they write in a motion is true, and that it is their opinion?
duesouth, it will take one of the lawyers commenting here, someone like justme, to explain 11b.
My “plain English” reading of the Rule left me wondering about claims made against the Rigsby sisters – the “stolen documents” first and foremost as there is just so much law to the contrary that it’s hard to believe it 11b-1 and 2 do not apply.
The other thing I thought after reading the Rule was how it fits the argument the qui tam lawyers were making about the claims – it seems all of the dispotive motions would be subject to Rule 11 since the Rigsbys sisters have not had the opportunity to conduct discovery.
However, if nothing else, I’ve learned logic and law are often two different matters.
btw, I’ve been checking but thus far nothing has been filed about the depositions that were to have taken place this week.
The McIntosh case is completely dismissed now.