Tag Archives: Minnesota Rules of Civil Procedure

Attorneys & Lawyers & Counselors, Civilized Proceedings

Research Report: Rule 11 Sanctions for Filing Frivolous Rule 11 Sanction Motions for Frivolity

Following is my research report of actual case quotes/snippets that I found interesting (for some reason or another) while I was imageresearching the Question: Can you be sanctioned for bringing a frivolous or otherwise improper Rule 11 Motion for Sanctions?

Answered: Yes and you don’t even need to provide the 21-day safe-harbor period! See Fed.R.Civ.P. 11 (c)(2)(“If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion”) and Minn.R.Civ.P. 11.03 (a)(“If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney fees incurred in presenting or opposing the motion.”).

  • A Rule 11 violation is a serious thing, and “an accusation of such wrongdoing is equally serious.” Draper & Kramer, Inc. v. Baskin-Robbins, Inc., 690 F. Supp. 728, 732 (N.D. Ill. 1988).
  • imageThe imposition of Rule 11 sanctions should not be imposed so as to “ ‘chill an attorney’s enthusiasm or creativity in pursuing factual or legal theories [.]’ ” Robinson Rubber Prod. Co., Inc. v. Hennepin County, Minn., 12 F. Supp. 2d 975, 981 (D. Minn. 1998).
  • When a Rule 11 motion itself is not well grounded in fact or law, or is filed for an improper purpose, the court may sanction the moving party. Safe-Strap Co., Inc. v. Koala Corp., 270 F. Supp. 2d 407 (S.D.N.Y.2003).
  • The Court may impose sanctions for a Rule 11 motion that was “not well-grounded in fact,” and was “filed solely as a litigation tactic,” having “the effect of unnecessarily confusing consideration of the real issues.” Judin v. U.S., 34 Fed. Cl. 483, 493 (Fed. Cl. 1995).
  • “Counsel’s reliance on Gaiardo v. Ethyl Corp., 835 F.2d 479, 483 (3d Cir.1987) to rationalize his performance as a good faith effort to challenge existing law is to no avail. He did not even mention the Gordon case . . .” Borowski v. DePuy, a Div. of Boehringer Mannheim Co., 850 F.2d 297, 304-05 (7th Cir. 1988).

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  • “His conduct throughout the entire case demonstrated the “ostrich-like tactic of pretending that potentially dispositive authority against [his] contention does not exist,” precisely the type of behavior that would justify imposing Rule 11 sanctions.” Id.
  • “The district court was correct in sanctioning plaintiff, who should not be permitted to rely on the defendants to do the research either to make his case or expose its fallacies.” Id.
  • “Rule 11 is not a toy. A lawyer who transgresses the rule abuses the special role our legal system has entrusted to him.” Draper & Kramer, Inc. v. Baskin-Robbins, Inc., 690 F. Supp. 728, 732 (N.D. Ill. 1988). “He can suffer severe financial sanctions and, if his misconduct persists, he can find himself before a disciplinary commission. See, e.g., Model Rule of Professional Responsibility 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous.”). In short, a Rule 11 violation is a serious thing, and an accusation of such wrongdoing is equally serious.” Id.

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MKT

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Civilized Proceedings, Litigation of Business | Business of Litigation

Subpoena Blues . . . Continued

Just the facts please . . .061114_0714_MondayMorni1.png

So, did you called your attorney? No, not yet? But you will? Okay. I guess, I’ll answer a few questions for you first. But only about what your attorney will need from you when you call? You need to speak to your own attorney and not just read this on some stupid blog written by someone you never met and do not even know is a real attorney. I’ll be using a lot of usuallys, generallys and ordinarilys and not many specificallys, totallys or exclusivelys.

Continuing with my last post, most attorneys will usually want details about the Subpoena when you call. When were you served? How were you served? Who is it from? What are you asked to produce? Did you know this case is going on? Do you know these people? Do you know anything about this? What court has this case? Why do they want your records? How are your records related? What did you do here? Are you sure?

MH900309662. . . and the documents too.

Ordinarily, an attorney will want to see a copy of the actual Subpoena itself along with any documents that came with it or were attached to it. There are a number of technical requirements that the Subpoena needs to comply with on it’s face, that must be included with it and how it must be delivered for it to be valid and enforceable. Plus, your attorney will want to know who served it, the parties’ names as listed in the caption and who their attorneys are, where and how the production is taking place, if it is in federal or state court, the specific language used to describe what you are supposed to produce and other things. Since most of this information comes on or with the Subpoena, I always want to see a all of it as soon as possible.

Under What Authority?

Rule 45 of the Federal and Minnesota Rules of Civil Procedure govern Subpoenas in civil lawsuits. Minn.R.Civ.P. 45.01 (2014); Fed.R.Civ.P. 45 (2014). Although already alike, after Minnesota amended its state court version of Rule 45 in 2006 the state rule is now almost a mirror image of the Federal version of Rule 45. They are similar enough to make some general observations that usually are applicable to both Rules.

Subpoena Powerflat-27287_150

The generalities begin with an attorney being an officer of the court in both forums. As such, an attorney has “Subpoena power” and usually does not need any separate authorization by a judge to use and serve a Subpoena. This power is used to compel people and businesses to provide information needed and related to a lawsuit, whether it is testimony, documentary or in some other tangible form. If you fail or refuse to comply with any type of Subpoena, a court can find you in contempt of court and impose typical contempt sanctions (fines and time in jail to obtain your compliance).

Subpoena Duces Tecum

The type of Subpoena in the post below is formally called a Subpoena Duces Tecum (meaning bring it with you or be penalized in Latin). It requires you to provide documents or other physical items, including electronic data created by and stored on a computer’s hard drive or in its memory.

In Minnesota, a Subpoena Duces Tecum usually does not involve providing testimony, but it can. You have to be certain so it is best not to rely on any ambiguous cover letters that were served with it. You need to read and comply with the actual wording in the Subpoena itself.

book-1911_150 Particulars

Based on the circumstances described in my previous post, a number of things happened with this Subpoena that should be considered.

1.      Properly Served?

The first question that always should be asked is if service of the Subpoena was proper. A Subpoena under Rule 45 has to be personally served to be effective. To be proper, there are service specifics as to who may serve the Subpoena, where and when it may be served, who it has to be served on and how it is to be served, among other requirements. Make sure your attorney knows how you got the Subpoena.

2.      Right Person?staple-160414_150

This Subpoena requires records be produced that belong to the company. As long as your business is a corporation or LLC, the Subpoena should not name a specific person and will usually name the “Records Custodian/Custodian of Records.” This usually means whoever has access to the business’s records, is responsible for maintaining them and can certify to the court (and everyone else) the records produced are what was asked for and have not been improperly altered.

3.      Witness Fees?

The attorney that served the Subpoena has to include a witness fee of $20.00 per day in Minnesota state court cases and $40.00 for federal cases. If this is not included with the Subpoena when served, the Subpoena may be considered invalid. Besides the generous per diem witness fee, the party serving the Subpoena is required to reimburse you for round trip mileage (28 cents and 55.5 cents respectively in state and federal cases) to the scheduled event (trial or deposition) from your home or workplace.

4.      Compensation?packs-163497_150

If you are not a voluntary participant in the case (or employed by one) and it involves your business or profession, you are to be compensated for your time complying with a Subpoena Duces Tecum. If the Subpoena fails to address compensation your attorney can object or bring a motion, depending on the circumstances, burden and costs involved. Arrangements to reasonably compensate you for the time required to comply with it should be addressed before compliance. However, being required to respond to a single Subpoena Duces Tecum personally and incurring nominal expenses is not presumed to be compensable under the Rule. It’s like serving as a juror to a degree: a civic duty. Protecting people who have nothing to do with the case from unreasonable burdens is preferred but not required.

5.      Timing?clock-70182_640

Rule 45 requires reasonable notice. But the rule does not set a specific time limit. Typically, ten days is enough, but why is reasonable may be shorter or longer depending on the circumstances of the case. A potential trap for the unwary is that a non-party has up to 14 days to object to the Subpoena. Because any objections must be asserted before the time set for compliance under the Subpoena, you cannot hope to take advantage of the full 14 days if the Subpoena requires a shorter time to comply. It is a good idea to assert any objections as soon as they can be determined and not wait until the last minute, or worse, think you have 14 days as stated in the Rule if the testimony or documents requested are due sooner.

6.      Reasons to Object or Quash?reading-297450_150

Subpoenas Duces Tecum may be opposed on grounds of privilege, undue burden, relevance, reasonableness, oppression and for other good cause. But keep in mind the court alone makes the final determination as to what constitutes any of these factors and what weight each one is to be given. Just like beauty is in the eye of the beholder, one person’s relevance may be extraneous to another. As a result, you should always proceed with an abundance of caution and try to comply (and document your efforts). After all, when contempt penalties are possible it is always better to be safe rather than sorry.

Conclusion

red-31172_150Although Rule 45 does provide some protections to non-parties, few are required and strict compliance will always be expected. The best way to deal with the unfortunate burden of being served with a Subpoena Duces Tecum is to act promptly and thoroughly with the guidance of an attorney. After all, there may come a day when you need to obtain information for a lawsuit and serving a Subpoena Duces Tecum on an unrelated third party may be the only way to obtain it.

Now will you call your attorney?

Next up: Conclusion: The Confidentiality Issues . . .

MKT

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Attorneys & Lawyers & Counselors, Civilized Proceedings, Litigation of Business | Business of Litigation

In Minnesota, June 2014 is: “File Your Hip Pocket Service Cases Month”

Ring, Ring, “Law Office.”

Hello. Yeah, uh, this is probably a stupid question, but, um, I got some legal papers here, someone gave ’em to mMH900364314e, but, they got my name on there, but, there’s no court file number listed. It’s just blank. So, like, this is fake, right? I mean, it’s just another scam, or fraud, or something. But it ain’t real with no court number on there, is it?

A common question from a potential client not realizing they were just served with a real lawsuit in Minnesota state court.

Yeah, I gotta question for ya. My client was served with papers down here from some lawyer in Minnesota. But they haven’t filed it, see?. So, we figure, the attorney is just trying to scare us. Bluffing. I’m not planning on answering it, ‘cause, ya know, there isn’t a file number to file it with. Does this sound right to you? They’re just hoping we’ll pay and don’t really wanna litigate, ya know?

–A common question from an out of state lawyer with a client being sued in Minnesota state court.

(Court File No.: __________)

courthouse-1330873-mPeople are always bewildered to hear in Minnesota we can sue someone without filing anything with the state court. All it takes is for an attorney to draft, sign and serve a summons on a defendant (with a complaint) to start a lawsuit.

It can be confusing. If you don’t think it is real without a court file number printed on it, think again, before it becomes a default judgment (with a Court File Number and dollar amount on it). And don’t bother calling the court. There will not be a record of it there. The court will have no idea A lawsuit was commenced, because the lawsuit began when the summons was served and the court was not involved. This is commonly known as “hip pocket service,” despite some legal commentators calling it “hip pocket filing.”

Minn. R. Civ. P. 3.01(a) and its OriginsMinnesota Seal

Under Rule 3.01(a) of the Minnesota Rules of Civil Procedure, “A civil action is commenced against each defendant . . . when the summons is served.” Compare that to what Rule 3 of the Federal Rules of Civil Procedure provides: “A civil action is commenced by filing with the court.” A small difference in wording, with a large impact on when a lawsuit begins.

Our current Rule 3 was a statute in Minnesota as early as 1866, when actions at law and equity were merged so that only one procedural type of civil action existed. Minn. Gen. Stat. ch. 66 (1866)(Minn. Stat. Ann. § 540.01 superseded by Rules); and Bond v. Pennsylvania R. Co., 124 Minn. 195, 144 N.W. 942 (1914)(discussing this history).

Minnesota’s statutes progeny began in 1851 when we were still a territory and continued after Minnesota became the 32nd state in 1858. Id. In the 1866 version of Minnesota’s Rule 3, it was spread out among two sections. See Section 13 and 14, c. 66, G. S. 1866. The two sections were combined into one through the 1905 revisions to Minnesota’s statutes (Revised Laws). See Section 4102, R. L. 1905.

Can’t Find My Pocket?hip pocket

I searched but could not find “hip pocket service” or “hip pocket filing” used by a Minnesota appellate court, although it is used by the advisory committee in comments to Rule 12 of the General Rules of Practice in 2009. Suffice it to say the procedure has been around a long time. I will leave the exact origin of the affectionately used slang term a mystery for now.

Only North and South Dakota have the same procedure as Minnesota. In some other states you can serve a summons before filing, but the case must be filed shortly after service is complete (from a little over a week to a few months later). The majority of states follow the federal rule and require you to file (and pay the fee) to start a lawsuit.

Effect of Not FilingMB900216576

Pocket service can save you from immediately paying the filing fee for a lawsuit. This is nothing to scuff at with the filing fees for a civil action at about $325.00, unless you want a jury, then add on another $102.00. Other benefits are significant and be attractive for many cases.

moneymoneyAfter service (about $60 to $100), you have an active lawsuit not under court supervision and no court-imposed deadlines apply, but you can engage in discovery and the case can proceed with all of the civil procedure rules applying. Not filing can be beneficial in settling cases early with less expense. Sometimes it can be abused by a plaintiff with a weak case looking for a nuisance value settlement. But still not without a counterbalance: A defendant can file the case at anytime too.. As defense counsel, I’ve filed first many times to call a plaintiff’s apparent bluff.

How Many?

Since the case is not filed, there is no way to count how many lawsuits are actually are pending. If a suit is timely served, it could have remained pending indefinitely. In 2011, it was estimated (guestimated) by collection attorneys (usually suing people for credit card debt) that 50,000 un-filed consumer credit cases had been served in the state while the Great Recession was ongoing.

That was more than twice as many as the collection law firms had filed. When New York ended hip pocket filing in the early ‘90s, it saw court filings swell by about 20%. The number of un-filed cases in Minnesota is unknown a
nd unknowable, but it’s a safe bet there are more than a few and maybe a lot more.

Private Litigation

ptivateA great benefit of hip pocket service is it allows a lawsuit to be filed without being publicly disclosed. I worked on one case where it was about 6-7 years from the time it was served and neither party had any desire to file it. They were not interested in a public airing of their grievance.

They were both professionals and one of them had transmitted a loathsome disease to the other. They each had claims accusing one another of spreading the pre-existing condition to each other. Maybe it was a mutual infection? The case sat at a stalemate and lingered. I tried to find a way as a law clerk to resolve it, but could not dismiss it without filing it with the court for the whole world to see. That was not acceptable. As far as I know, that case may still be out there pending, and has been for about 20 years by now.

2013 Amendments to Rules 3.01 & 5.04

Effective July 1, 2013, Rule 3.01 was amended and now requires all cases to be filed within one year after they were served. Rule 5.04 deems a case dismissed with prejudice (the case over and can never be started again) if is not filed within a year. Perhaps as a nod to privacy, the parties can waive the one year limit and keep the case active indefinitely.MH900309662

For all of the older pending cases, the clock began to run on the effective date and the one year limit is up July 1, 2014. If not filed, your case will be automatically dismissed and you can never bring the same claim again. Great news for defendants, not so much for the tardy or absent minded plaintiff.

An Exception to Every Rule

If you have a real good reason, act promptly, have a legitimate claim and it won’t be too unfair to the person being sued, Minn. R. Civ. P. 60 may work to reopen a dismissed case. But don’t count on Rule 60 saving the case if you were negligent, inexcusably tardy, have a questionable case and/or the defendant will be at a disadvantage. It should be used  only when these factors are present.

Time to Review
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It will be interesting to see how many old cases are filed in June, especially how many are filed the last week of the month. I am sure we will hear about the numbers once they are in and I may post them here after I do. In the meantime, make sure you review all of your cases served before July 1, 2013 and get them filed ASAP or keep your head low and hope the clock runs out on any claims outstanding and un-filed. Right now, I need to go inventory my older files.

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