GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 965

Short Title:  Extend Civil Procedure Rule 11.	(Public)

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Sponsors: Representatives Lemmond and McMahan.

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Referred to:  Rules, Calendar, and Operations of the House.

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April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO REVISE RULE 11 OF THE NORTH CAROLINA RULES OF CIVIL PROCEDURE TO COMPLY WITH RULE 11 OF THE FEDERAL RULES OF CIVIL PROCEDURE IN ORDER TO PROVIDE STRICTER SANCTIONS FOR FILING UNWARRANTED OR FRIVOLOUS ACTIONS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 1A-1, Rule 11, reads as rewritten:
"Rule 11. Signing of pleadings, motions, and other papers; representations to court; sanctions.
								(a)	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 and telephone 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 attorney or party.
(b)	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.
(4)	The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
(c)	Sanctions. – If, after notice and a reasonable opportunity to respond, the court determines that subsection (b) of this rule has been violated, the court may, subject to the conditions stated in subdivision (2) of this subsection, impose an appropriate sanction upon the attorneys, law firms, or parties that have violated subsection (b) 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 subsection (b) of this rule.  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 appropriately corrected.  If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorneys' 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 subsection (b) of this rule and directing an attorney, law firm, or party to show cause why it has not violated subsection (b) of this section with respect thereto.
(2)	Nature of Sanction; 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 sub-subdivisions a. and b. of this subdivision, 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 (2) of subsection (b) of this rule.
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 that 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.
(d)	Inapplicability to discovery. – Subsections (a) through (c) 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."
Sec. 2.  This act becomes effective January 1, 1996, and applies to any pleadings, motions, and other paper presented to the court on or after that date.