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OLnotesCIVPRO101310

OLnotesCIVPRO101310 - i R 11 was toothless for a while then...

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i. R 11 was toothless for a while, then was strict but worry that it was chilling activity, so now fairly toothless again… applies to conduct litigation ii. Zuk v Eastern PA Psychiatric Inst Lawyer didn’t do good enough research into copyright or property law, sanctions were imposed and appropriate, especially where the lawyer didn’t take advantage of the 21 day safe harbor provision (he could have withdrawn the motion after the judge warned him) iii. Sanctions are discretionary ct can model them as they wish 2.) Legal Sufficiency in claim the claim must be legally sufficient a. Claiming facts that would be sufficient if there were a change in the law isn’t enough b. Mitchell v Archibald and Kendall Π s didn’t state a legally sufficient claim by saying they were injured on the premises (when really across the street) b/c settled law held that where they were parked not considered on “premises.” Weird case b/c offered chance to amend and didn’t – stuck w/ original claim. 3.) Heightened Specificity: for certain allegations, like fraud, mistake, need heightened specificity – R 9(b) a. Idea is that fraud it easy to allege and expensive to defend, so want to protect s from bad-faith claims of fraud – must show a bit more proof for it to go forward than normal claims b. Ross v AH Robins - Π s complaint certainly gave essential elements of case so that could frame their answer as per R 8, but still dismissed under R 9(b) b/c didn’t show any actual knowledge on s part that they knew they were fraudulently misleading consumers c. But heightened specificity doesn’t apply to everything… Swiercewica v Sorema
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