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Originally Posted by GMK
Regarding the term frivolous. Maybe one of our attorney members' can spend a few minutes and briefly outline a little of Rule 11 (SanFrancisco did make mention of it) in IP cases. I think it may go a long way toward putting the "frivolity" aspect in focus. If I recall correctly, both the plaintiff AND the signatory attorney are subject to some pretty stiff penalties if the defendant can substantiate, or even if the court decides, going in, that the suit is without proper foundation or, in fact, is frivolous. I believe the attorney is personally liable for damages if he signs on to a specious claim. This rule in the code , once again I believe, gives a potential plaintiff pause before entering lightly into an action.
I think this would be constructive. And, if I'm misinformed about this I will be corrected. Also a positive
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There's too much info on it to post in here. Generally though:
1. Such motions are a waste of time. Fed courts rarely grant them. The motion is hard to win because in the legal world and for Rule 11 "frivolous" is difficult to prove. Generally the word is defined as having ZERO basis in law or fact. Reality is that one can always find some shred of fact and law to support a case or court filing.
2. If you have seen the movie Civil Action, there are a few scenes that deal with a Rule 11 motion. Pretty accurate.
3. Rule 11 motions are a waste because the purpose of the motion is to deter future conduct, not punish a lawyer for past conduct. Moreover, the sanctions [fine] goes to the Court and the fines are typically small.
4. Although a Court could dismiss a case as part of a Rule 11 sanction, they rarely will because that is more a punishment for past conduct than a deterrence sanction. Moreover, a dismissal ends up sanctioning the party/client for the lawyer's bad acts. While it is in the Court's power, Rule 11 is not supposed to be applied against parties, it deals with the lawyers' conduct.
5. If one wants to get a case dismissed, most Courts require that a party file a motion to dismiss rather than to seek dismissal through Rule 11.
6. Generally, as depicted in the movie Civil Action, only malicious, incompetent, or inexperienced lawyers file Rule 11 motions. Most of the time the motion is filed to harass, intimidate or distract the lawyer against whom the motion is filed. Sometimes the motion is filed to motivate a party to settle a case.
7. Hazard: If the Court finds that the Rule 11 motion was filed for ulterior/improper motive, the Court will most likely sanction the lawyer who filed the motion in the first place.