1. Is there a connection between Rule 8(d)(3) and the notice pleading system?
2. Isn't the pleading of inconsistent theories of liability (which is allowed under Rule 8(d)(3)) in violation of Rule 11?
3. Is it enough to satisfy rule 11 that you have a good faith belief that 11(b)(1)-(4) have been satisfied? Or can you be sanctioned even if you honestly believe that the standards in 11(b)(1)-(4) have been satisfied?
4. What evidence must one have to state that one's factual allegations are likely to have evidentiary support after reasonable opportunity for further investigation or discovery, Fed. R. Civ. P. 11(b)(3)? Is it enough to hope that evidence will come out during discovery?
5. Doesn't the 21 day "safe harbor" rule at 11(c)(2), which was introduced in 1993, eviscerate Rule 11?
6. Is Rule 11 worth the cost in satellite litigation and the chilling of creative advocacy?
7. Assume that actions for medical malpractice are barred by the statute of limitations two years after the harm materialize. Your client's harm materialized 26 months ago. You decide to sue anyway (stating honestly in the complaint when the harm materialized). You figure, statute of limitations is an affirmative defense that must be brought up by opposing counsel. She may fail to do so or the defendant may even voluntarily waive the defense because he is opposed to it on moral grounds or because he wants to be vindicated in a public forum. Assume that the 21-day safe harbor does not exist. Have you violated Rule 11? 2. What provisions of Rule 11 were violated in Murphy v. Cuomo?
8. The standard for summary judgment is basically that the nonmovant (the person against whom summary judgment is requested) has so little evidence that a jury would be irrational to find for him. Why shouldn't Rule 11 sanctions be issued against every party who loses on summary judgment? Is it possible to have summary judgment against you and still satisfy Rule 11? Is it possible to withstand summary judgment and still violate Rule 11?
9. In Murphy v. Cuomo, the court emphasizes the fact that no evidence came out during discovery as a reason to apply Rule 11 sanctions. Would Rule 11 sanctions have been appropriate even if some evidence had appeared during discovery, such that summary judgment should have been denied?
10. Assume that Murphy lied to Ballan, telling him that Zarc had participated in the study to test the effect of the pepper spray on innocent people and Ballan wrote up the complaint in reliance on Murphy's statement. Could Ballan still be sanctioned under R. 11? Could Murphy be sanctioned under R. 11?
11. Assume that
Murphy had given Ballan a fabricated document that looks
evidence that Zarc participated in a study to test the pepper spray on
innocents. Could Ballan still be sanctioned under R. 11? Could Murphy
under R. 11?
12. Assume there
is a non-frivolous argument for the reversal
of existing law, such
that the drug statute in Murphy v. Cuomo would have a private right of
action. Would it be enough for Ballan to simply say that he
wanted the law reversed, without mentioning the non-frivolous argument,
for him to have not violated R. 11(b)(2)?
13. Assume, once
again, that there is a non-frivolous argument for
the reversal of existing
law such that the drug statute in Murphy v. Cuomo would have a private
right of action. Would the mere existence of this argument be enough
for Murphy's lawyer to not have violated R. 11(b)(2) even if he simply
that the drug statute has a
private right of action, without mentioning the non-frivolous argument
AND without mentioning that he wanted the law to be reversed (that is, without saying
that the current law did not recognize a private right of action)?