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RULE 11. SIGNING OF PLEADINGS, MOTIONS, AND OTHER PAPERS; REPRESENTATIONS TO COURT; SANCTIONS

July 25, 2011

RULE 11.01: SIGNATURE.

Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney’s individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer’s address, telephone number, and Tennessee Board of Professional Responsibility number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party. [As amended by order entered January 26, 1999, effective July 1, 1999.]

RULE 11.02: REPRESENTATIONS TO COURT.

By presenting to the court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, —

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.

RULE 11.03: SANCTIONS.

If, after notice and a reasonable opportunity to respond, the court determines that subdivision 11.02 has been violated, the court may, subject to the conditions stated below, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subdivision 11.02 or are responsible for the violation.

(1) How Initiated.

(a) By Motion. A motion for sanctions under this rule shall be made separately from other motions or requests and shall describe the specific conduct alleged to violate subdivision 11.02. It shall be served as provided in Rule 5, but shall not be filed with or presented to the court unless, within 21 days after service of the motion (or such other period as the court may prescribe), the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriated corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for violations committed by its partners, associates, and employees.

(b) On Court’s Initiative. On its own initiative, the court may enter an order describing the specific conduct that appears to violate subdivision 11.02 and directing an attorney, law firm, or party to show cause why it has not violated subdivision 11.02 with respect thereto.

(2) Nature of Sanctions; Limitations.  A sanction imposed for violation of this rule shall be limited to what is sufficient to deter repetition of such conduct or comparable conduct by others similarly situated. Subject to the limitations in subparagraphs (a) and (b), the sanction may consist of, or include, directives of a nonmonetary nature, an order to pay a penalty into court, or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result of the violation.

(a) Monetary sanctions may not be awarded against a represented party for a violation of subdivision 11.02(2).

(b) Monetary sanctions may not be awarded on the court’s initiative unless the court issues its order to show cause before a voluntary dismissal or settlement of the claims made by or against the party which is, or whose attorneys are, to be sanctioned.

(3) Order.  When imposing sanctions, the court shall describe the conduct determined to constitute a violation of this rule and explain the basis for the sanction imposed. [Amended order filed January 31, 2003, effective July 1, 2003.]

RULE 11.04: INAPPLICABILITY TO DISCOVERY.

Subdivisions 11.01 through 11.03 of this rule do not apply to disclosures and discovery requests, responses, objections, and motions that are subject to the provisions of Rules 26 through 37. [As amended by order entered January 29, 1987, effective August 1, 1987; and by order filed February 1, 1995, effective July 1, 1995.]

Advisory Commission Comments. Rule 11 makes it an absolute requirement that the attorney, if any, sign, and makes the signature, in effect, the attorney’s statement that the pleading is filed in good faith. Rule 11 does not abrogate statutes which require that pleadings be verified or accompanied by affidavit.

The [1987] revision includes motions and “other papers” as well as pleadings. Significantly, an attorney’s belief that a court filing is well-founded must be a belief “formed after reasonable inquiry.” The amended wording therefore imposes an objective reasonable lawyer standard of inquiry. What inquiry is reasonable, of course, necessarily must depend on particular facts. If a client retains a lawyer on the eve of expiration of a statute of limitations, a reasonable inquiry must be performed in view of the exigencies of the situation. [1987.]

Advisory Commission Comment [1995]. Amended Rule 11 tracks the current federal version. Sanctions no longer are mandatory, and non-monetary sanctions are encouraged. The 21-day safe harbor provision allows otherwise sanctionable papers to be withdrawn, thereby escaping sanctions.

Tennessee courts have not seen the widespread abuse of sanctions law experienced by federal courts under the previous rule. See Andrews v. Bible, 812 S.W.2d 284 (Tenn. 1991). Nonetheless, the amended language should prevent potential future abuse.

Advisory Commission Comment [1999]. 11.01: A lawyer must place his or her Board of Professional Responsibility number on court papers.

Advisory Commission Comments [2003]. A spelling error is corrected in Rule 11.03(2); there is no substantive change.

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