Concept
Certifications to the Court
Rule 11
Certifications to the Court
Rule 11(b) is where the rule does its work. By presenting a pleading, written motion, or other paper to the court, whether by signing, filing, submitting, or later advocating it, an attorney or unrepresented party certifies four things, to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances.1
- The paper is not presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.2
- The claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.3
- The factual contentions have evidentiary support or, if specifically so identified, will likely 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 belief or a lack of information.5
Put briefly, presenting a paper certifies that the presenter believes, after reasonable inquiry, that the paper has evidentiary support (or will likely have it after further fact-gathering), a legal basis, and a proper purpose.6 The opening clause does two jobs before any of the four statements is reached. It fixes the moment when the certification is made, and it sets one standard for all four statements: belief formed after reasonable inquiry. That standard allocates the cost of checking. A court or opposing party cannot cheaply test a paper on the day it arrives, but its author can, so the burden falls on the author.7
A violation can lead to sanctions against any attorney, law firm, or party that violated the rule or is responsible for the violation, with limits on monetary awards. The next section takes up that procedure.8
This unit follows the order in which a Rule 11 problem raises its questions. First comes what counts as presenting a paper. Next is the standard of inquiry common to all four statements, which is objective, followed by how a court decides whether an inquiry was reasonable. Each statement then gets its own treatment, because each targets a different defect: improper purpose, unsupported law, unsupported facts, and unwarranted denials. An exam answer should run in the same order.
Presenting a Paper
Rule 11(a) requires every pleading, written motion, and other paper to be signed, but the signature is only one way a person makes the certification.9 The certification attaches when an attorney or unrepresented party presents a paper, and the rule defines presenting as signing, filing, submitting, or later advocating it.10 Signing and filing are the familiar acts. Later advocating reaches the lawyer who urges a paper’s contents on the court well after it was filed.
Coverage is broad. The rule reaches written motions as well as pleadings,11 and a lawyer must investigate the factual and legal bases for a motion before filing it. That requirement cannot be squared with the old defense habit of answering a complaint with a motion to dismiss padded with a laundry list of dubious objections.12 The rule also reaches unrepresented parties. A pro se litigant signs the paper, and the signature certifies the paper’s factual allegations, legal theories, and motives for filing it.13 A baseless paper costs the court and the opponent the same amount whoever files it, so the rule makes no exception for litigants without counsel.
The certification is a snapshot taken at the moment of presenting. A lawyer who made a reasonable inquiry and had evidentiary support when presenting a paper has complied, because Rule 11 imposes no duty of correction based on after-acquired information.14 In Calloway v. Marvel Entertainment Group, the Second Circuit recalled its decision in Oliveri v. Thompson, which held that Rule 11 applies to all papers filed in a lawsuit, that the signer’s conduct is judged when the paper is signed, and that the signer has no continuing obligation to correct or withdraw papers already filed.15 The snapshot protects lawyers whose investigation was sound but whose facts later failed. Judging them with hindsight would push lawyers away from any position that might later collapse.
A snapshot alone would leave a gap, because a lawyer could keep pressing a position known to be baseless simply because the paper containing it was proper when filed. The words “later advocating” close the gap. Rule 11 forbids later advocating a paper the presenter then knows to be legally or factually insupportable,16 and each reaffirmation counts as a new presentation. The certification is renewed, and tested against what the lawyer then knows. The snapshot and the renewal express one idea: the question is always what the presenter knew, or would have learned by reasonable inquiry, at the moment of a given presentation.
A lawyer who signed an answer denying that his client had signed a contract shows both moments in one sequence. When he signed, the client’s own statement gave him evidence supporting the denial. Shortly before a hearing on a motion to compel discovery, the client told him the signature was hers, but the two agreed she should not be liable for other reasons, and he kept pressing the motion.17 At the hearing he cited the complaint and the answer to justify the relevance of his document requests and never mentioned the signature. He violated Rule 11. Referring to the answer presented it again and renewed his certification that its denials were warranted, at a time when he knew he lacked evidence for the denial of the signature.18 His silence about the signature did not help him, because the certification covers a paper’s contents, not only the statement the lawyer happens to emphasize.
An Objective Standard
Every certification in Rule 11(b) turns on what a reasonable inquiry would have shown, so the signer’s sincerity does not settle whether a paper is sound. The presenter vouches for the paper to the best of the presenter’s knowledge, information, and belief, but only as that belief is formed after an inquiry reasonable under the circumstances.20 In Business Guides, Inc. v. Chromatic Communications Enterprises, Inc., the Supreme Court began from the plain reading of the 1983 text: a party who signs a pleading or other paper without first conducting a reasonable inquiry shall be sanctioned.21
Before 1983, a signer’s good-faith belief in a pleading’s viability gave a safe harbor from sanctions. In Calloway, the Second Circuit recalled that in Eastway Construction Corp. v. City of New York it had read the new phrase “formed after a reasonable inquiry” as replacing that subjective standard with an objective one. Under the objective test, sanctions follow when a pleading is interposed for an improper purpose or when, after reasonable inquiry, a competent attorney could not form a reasonable belief that the pleading is well grounded in fact and warranted by existing law or a good faith argument for changing it.22 A footnote in Chambers v. NASCO, Inc. gives the reason for the amendment: Rule 11 was amended in 1983 because the subjective bad-faith standard was difficult to establish, which made courts reluctant to invoke it.23
The Seventh Circuit called this objective component the big change of the 1983 amendment. A paper filed in the best of faith, by a lawyer convinced of the justice of the client’s cause, is sanctionable if counsel neglected to make reasonable inquiry beforehand. In the court’s words, “An empty head but a pure heart is no defense.”24
The reason for the switch appears when you ask what a court would have to establish under each test. A subjective test makes sanctions depend on the signer’s state of mind, which only the signer can describe and an opponent can seldom disprove. It also rewards the very carelessness the rule targets, because a lawyer who never looked has no contrary thought to confess. The objective test asks a question a judge can resolve from the record: what a reasonable lawyer would have learned before filing. And it puts the burden of finding out on the party who chose to make the assertion. Counsel “may not drop papers into the hopper and insist that the court or opposing counsel undertake bothersome factual and legal investigation.”25
The current text builds the same design into each merit-based certification. The factual certification is not phrased in terms of how strongly the pleader believes the allegations, and the legal certification says “non-frivolous” where the earlier text said “good faith.” Each choice replaces a subjective approach with an objective one and removes the pure-heart, empty-head defense.26
Two examples show the standard at work. A lawyer who alleges that a named person drove the car, without reading the police report, has made no inquiry. Even if the lawyer did not know the person was not the driver, he should have made some inquiry to learn whether the allegation had a basis in fact.27 And Hays v. Sony Corp. of America shows how little room the standard leaves for good-faith ignorance. The plaintiffs’ lawyer, Guyon, was a small-town solo practitioner who did not specialize in copyright law, and nothing in the opinion suggests bad faith. He was simply ignorant of copyright law.28 He sued for violation of a common law copyright that the federal copyright statute had abolished as of January 1, 1978, at least six years before Sony did anything with the plaintiffs’ manual. Even cursory research would have found the statute.29
The same objectivity protects the careful lawyer whose case fails. The Seventh Circuit stressed that Rule 11 focuses on inputs rather than outputs, on conduct rather than result.30 The Second Circuit added that courts applying the objective test should avoid hindsight and resolve doubts in favor of the signer.31 And in Hunter v. Earthgrains Co. Bakery the Fourth Circuit called it axiomatic that asserting a losing legal position, even one that fails to survive summary judgment, is not of itself sanctionable conduct.32 A lawyer who is safe after a reasonable investigation remains free to take novel and aggressive positions.
One certification departs from this pattern. A paper presented for an improper purpose is sanctionable whether or not the facts and law support it, and no matter how careful the pre-filing investigation.33 A careful inquiry shows only that a paper has a basis, and it leaves open why the paper was filed. A later subsection takes up that certification.
Two details in an exam stem usually show which way the answer runs. A signer described as sincere, well-meaning, or inexperienced still violates the rule when no reasonable inquiry stood behind the paper, because the merit-based certifications measure conduct and ignore motive. A signer whose case was lost still complies when the inquiry was adequate at the moment of presenting, because the measuring point is the filing and the verdict is irrelevant to it.
Measuring Reasonableness
All four certifications must rest on a pre-filing inquiry “reasonable under the circumstances.”35 Even Rule 11(b)(3), which tolerates a factual contention that lacks evidentiary support at filing if the paper flags it as likely to gain support after further investigation or discovery, presupposes an initial investigation.36 What inquiry is reasonable is a fact-bound question,37 and the text supplies no formula. The working answer comes from Hays, which quoted the Seventh Circuit’s earlier decision in Szabo Food Service, Inc. v. Canteen Corp.: “the amount of investigation required by Rule 11 depends on both the time available to investigate and on the probability that more investigation will turn up important evidence; the Rule does not require steps that are not cost-justified.”38 Reasonableness is therefore a balance between the cost in time and resources of looking further and the likely benefit of what the search may reveal.39
Cost matters because a rule that ignored it would defeat its own purpose. Rule 11 aims to deter baseless papers, and a demand that lawyers exhaust every avenue before filing would price valid claims out of court along with invalid ones. The balance tips differently for law and for fact. Legal research is cheap and its benefits are usually clear, while factual investigation through interviews and field work can be costly, so the cost-benefit principle applies with special force to the inquiry into evidentiary support.40
Hays shows the balance tipping against a lawyer. Guyon never wrote Sony to ask whether it was distributing the manual or planned to, and he made no other effort to learn whether Sony earned any revenue from it.41 Asking would have been cheap even if it was unlikely to produce much.42 The question is the cost of the attempt against its likely payoff, so the chance of a useless answer does not excuse the failure to ask.
Time is the first circumstance a court examines, because a short window limits what any lawyer can learn. When the statute of limitations expires the next day, a quick check by phone or on the Internet may be reasonable, though the same check would be unreasonable if more time remained. The qualification is that a lawyer who dawdled for three months before starting the inquiry cannot use the time bind he created to excuse the shortcut it forces.43
Beyond time, the circumstances that bear on the balance include the following, among many. Each changes either the cost of further inquiry or the chance that it will pay off.44
- The complexity of the factual and legal issues, which raises both the cost of getting them right and the chance that further work will pay off.
- The extent to which the opponent or third parties control the facts, which raises the cost of getting them and so lowers what can fairly be expected.
- The extent to which the lawyer relied on the client for the facts, which is cheap and often adequate unless the account is doubtful or corroboration is easy.
- Whether another lawyer referred the case and how far the receiving lawyer relied on that lawyer’s work, which is a factor in judging the inquiry and never a replacement for it.
- The resources reasonably available to the lawyer, since a large firm can often do more at the same cost than a solo practitioner.
- The extent to which the lawyer was on notice that further inquiry was warranted, because a warning sign raises the likelihood that more digging will matter.
The advisory committee’s 1983 note had already named three of these: how much time the signer had to investigate, whether he had to rely on a client for the facts underlying the pleading, and whether he depended on forwarding counsel or another member of the bar.45
The client is usually the cheapest source of facts, and reliance on the client is a legitimate circumstance, but “[b]lind reliance on the client is seldom a sufficient inquiry.”46 A lawyer who makes no attempt to verify the client’s representations before submitting them to the court has not inquired at all.47 Two decisions mark the poles of the question. In Hadges v. Yonkers Racing Corp., a lawyer’s statements to the court proved wrong; for example, he had dated a scratching incident to 1989 when it occurred in 1987.48 The Second Circuit nonetheless found evidentiary support in the record: the client’s sworn statement describing an incident, a scratch sheet that showed no year, and, on whether the client had raced in New York since a ban, his sworn account that he had written to track managers without reply, a second attorney’s affidavit confirming that account, and the lawyer’s familiarity with related litigation.49
Probably the most common Rule 11 violation is a failure to conduct an adequate factual inquiry.50 In Christian v. Mattel, Inc., the lawyer sued Mattel for copying a doll without checking the accused dolls, which carried copyright notices that a look would have shown defeated the claim. The court held that the district court did not abuse its discretion in finding that his failure to investigate fell below the Rule 11 standard.51 What separates the two cases is what stood behind the contention when it was presented, and what further checking would have cost. In Hadges the lawyer held sworn statements and corroborating material. In Mattel the answer sat on the very objects in suit, and checking cost almost nothing.
The factors also work together on a single account. A client reports that last week another driver backed into his new Mercedes in a drug store parking lot, causing whiplash and totaling the car.52 An interview with the client is where an inquiry begins and may sometimes end, but this story invites a question. A car backing out of a parking space rarely moves fast enough to total a new luxury car, and when time remains the lawyer can ask for repair estimates or witness names.53 The same account passed along by an unfamiliar lawyer in another state is no more reliable for the transfer, and the receiving lawyer should at least ask what checking was done. The most defensible inquiry has the referring lawyer send the medical reports and the repair invoice showing the car was totaled. Fault would still be open, but tracking down every witness and photographing the scene would likely cost more than it is worth.54 Rule 11(b)(3) asks for evidentiary support, and it tolerates flagged contentions that lack support at filing, so it cannot demand proof sufficient to win.
Inexperience earns no discount. Guyon was a generalist in an unfamiliar field, and the court counted his limited resources only at the margin: less may be required of a solo practitioner than of a large firm, but lack of expertise is no defense.55 The risk of error belongs to the lawyer who chose the case, who can cure the gap by studying the law or associating a lawyer with the expertise. The adversary and the court did not choose counsel and cannot cheaply cure the gap.
The duty of inquiry also cannot be handed to someone else. The duty is non-delegable. Reliance on the inquiry of other lawyers is a factor in assessing whether the receiving lawyer discharged the duty, and never a substitute for it.56 In In re Kunstler the court held that the lawyer’s reliance on others was an improper delegation of his responsibility to certify that the pleading filed over his name was well grounded in fact and law.57 A signer who could discharge the duty by pointing to someone else would have no reason to check, and the court and the opponent, who cannot see inside the firm, would bear the risk of an unexamined paper.
Finally, a lawyer may not file first and treat discovery as the only way to learn whether a claim exists. In Brown v. Federation of State Medical Boards, the court wrote: “It is not permissible to file suit and use discovery as the sole means of finding out whether you have a case. Discovery fills in the details, but you must have the outline of a claim at the beginning. Rule 11 requires independent inquiry.” The lawyer there, Neely, did not even have the outline of a claim.58 If discovery were the first investigation, the opponent would fund the plaintiff’s search for a claim, which is the shifting of work onto the defendant and the court that Rule 11 exists to prevent.
Proper Purpose
Rule 11(b)(1) is the one certification that looks past the paper to the reason it was presented: the presenter certifies that the paper is not presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.60 The listed examples illustrate the category and do not exhaust it. The other three certifications ask whether a paper has a legal basis, factual support, or warranted denials. This one asks why anyone filed it. It needs its own place because a well-grounded paper can still be used as a weapon, to run up costs, postpone a ruling, or humiliate, and the harm to the adversary and the court is the same whatever the paper’s merits.
The Seventh Circuit called this limit the rule’s subjective component and the duty of reasonable inquiry its objective one. A paper interposed for an improper purpose is sanctionable whether or not it is supported by the facts and the law, and no matter how careful the pre-filing investigation.61 Courts nonetheless infer purpose from objective facts. Some refuse even to treat the presenter’s subjective intent as one factor in the objective inquiry, out of concern that probing subjective bad faith would generate satellite litigation, inhibit speech, and chill advocacy.62 A signer accused of harassment will almost always deny it, so a test built on testimony would collapse into a credibility contest over the lawyer’s thoughts.
The harder question is whether a paper with a legal and factual basis can ever have an improper purpose, and the courts are divided. The rule’s conjunctive list of requirements suggests that even a meritorious paper can have an improper purpose, and a majority of courts hold that it can.63 Merit still matters as evidence. When the only objective basis for inferring improper purpose is the papers themselves, and they are nonfrivolous, nothing supports the inference. The majority view therefore bites only when something beyond the papers shows why they were filed. Courts have found that outside evidence in four recurring patterns, each tied to a fact a judge can point to in the record.64
- Papering the adversary through successive filings even though some are nonfrivolous, as in Sheets v. Yamaha Motors Corp., U.S.A., where the frequency and timing of the filings supplied the inference.
- Filing scandalous or impertinent matter to harass or embarrass, as in Coats v. Pierre, where post-trial briefs insulted opposing counsel in demeaning terms and the language supplied the inference.
- Filing a nonfrivolous motion to amend after lawyer and client agreed to drop it if the defendant resisted, as in Cohen v. Virginia Elec. & Power Co., where evidence of the advance plan supplied the inference.
- Orchestrating a media event around a filing to embarrass the defendant and win personal recognition, as in Whitehead v. Food Max of Mississippi, Inc., where the planning and conduct supplied the inference.
The bluff motion shows most clearly how an improper purpose can coexist with a sound paper. In Cohen the court recognized that the lawyer did not act in bad faith in filing the pleading, because the claims had a legal basis. The evidence nonetheless established that the plaintiff and the lawyer had decided in advance to withdraw the motion if the defendant indicated any opposition.65 Merit measures what a court could do with the paper, and the plan shows what the filers wanted the paper to do, which was to test whether the defendant would blink and not to obtain a ruling. The objective hook is the evidence of the agreement, so a later assurance of good intentions cannot cure it.
A frivolous paper makes the inference easier, because the paper itself then carries evidence of purpose. In Wright v. Wilson, Elser, Moskowitz, Edelman & Dicker, the court granted sanctions under Rule 11(b)(2) because the defendants presented a written motion asserting frivolous legal contentions, which no competent lawyer, after reasonable inquiry, would have found warranted by existing law or a nonfrivolous argument for changing it.66 The court also found the motion and supporting papers presented to harass the plaintiff and needlessly increase the cost of litigating her claims, and it granted sanctions under Rule 11(b)(1) as well.67 The defendants were experienced lawyers whom the court considered fairly responsible for the papers submitted on their behalf.68
This certification is independent of merit, which sets it apart from the other three. An exam stem that stresses a sound claim and a thorough investigation has therefore answered only the other three certifications. The Rule 11(b)(1) question stays open until the facts are checked for something beyond the papers: a stream of filings, abusive language, a prearranged plan to withdraw, or a staged media event. A stem that offers only a nonfrivolous paper supplies no basis for the inference, and a lawyer’s protestations of good intentions cannot cure objective facts pointing the other way.
Legal Contentions
Rule 11(b)(2) certifies that the claims, defenses, and other legal contentions in a paper are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law.70 A contention needs only one of the two routes. A position can rest on the law as it stands, or it can openly ask the court to change the law, provided a reasonable lawyer could defend the request. Each route has a reason. The first spares the court and the opponent from answering arguments that settled law has already foreclosed. The second keeps the rule from freezing doctrine, because the rule does not confine the pleader to existing law so that the law can continue to grow and develop.71 A problem therefore asks four things in order: what counts as existing law, how far an argument for change can go, what the test is when the lawyer loses, and what research and candor the certification requires.
Existing law means the controlling law of the jurisdiction as it stands when the paper is presented. Until the Supreme Court decides an issue, the law in each circuit is what that circuit’s court of appeals has said it is, provided the court has reached the issue.72 A majority rule elsewhere therefore does not make a position warranted by existing law in a circuit that has held the other way.73 The district court is bound by its own circuit, so a contrary contention can prevail only if the circuit changes course, and a request for that change belongs to the second route.
Hunter shows both routes. The Fourth Circuit’s decision in Austin v. Owens-Brockway Glass Container, Inc. had held that collective bargaining agreements applied to Title VII claims. When the show-cause order issued, Austin stood alone on one side of a circuit split, with six other circuits on the other.74 Austin nonetheless remained the existing law in the Fourth Circuit, and the plaintiffs’ theory was not warranted by it.75 The district court barred Ms. Hunter from practice in the Western District of North Carolina for five years, based mainly on her challenge to Austin.76 The sanction did not survive appeal, because her contention was an argument for change and not a baseless one. She acknowledged the contrary authority and argued against it on the basis of one of the Supreme Court’s prior, conflicting decisions, Alexander v. Gardner-Denver Co. and Gilmer v. Interstate/Johnson Lane Corp.77 After her papers were filed, the Supreme Court’s decision in Wright v. Universal Maritime Service Corp. validated her theory on the applicability of arbitration clauses.78 The later decision helped her, but compliance is measured when the paper is presented, and when she filed there was a circuit split and conflicting Supreme Court authority.
What makes an argument for change nonfrivolous is objective support showing that others have found it persuasive. A circuit split is a strong reason, but weaker support may suffice.79 The 1993 advisory committee note directs courts to take into account the extent to which the litigant researched the issues and found some support for the theory, even in minority opinions, in law review articles, or through consultation with other lawyers.80 The second route is not a technicality. Without it the lawyers who attacked Plessy v. Ferguson in Brown v. Board of Education would have had no safe way to argue for the reversal of existing law.
Contentions that fail both routes show what the rule targets. In Walker v. Norwest Corp., the complaint invoked diversity jurisdiction although complete diversity, a settled requirement, was contradicted on the face of the complaint, and counsel offered no argument for changing the requirement. In Wright, the court concluded that no competent lawyer, after reasonable inquiry, would have found the defendants’ argument warranted by existing law or by a nonfrivolous argument for change.81 A contention that contradicts settled law and comes with no argument for changing it falls outside both routes.
Losing is a separate matter from violating the rule. A legal position is sanctionable only when, applying a standard of objective reasonableness, a reasonable attorney in like circumstances could not have believed it legally justified. In the Fourth Circuit’s phrase, the argument must have “absolutely no chance of success under the existing precedent.”83 A claim so inartfully pleaded that it cannot survive a motion to dismiss does not violate the rule on that account, since only the lack of any legal or factual basis is sanctionable.84 The Second Circuit draws the same line at a claim whose failure is patently clear under existing precedents.85 Every judgment has a loser, so a rule that sanctioned losing would turn on how a judge later ruled and push lawyers away from every hard case. The question is why a position lost, whether because it was frivolous or only wrong. Masson v. New Yorker Magazine, Inc. shows the safe side. The defendants sought fees under Rule 11, but the Ninth Circuit held that the plaintiff had made a plausible, good-faith argument, because the law in California and in the circuit was unclear when the complaint was filed.86 Unsettled law leaves room for a position that may fail, and settled law that the paper itself contradicts leaves none.
The certification also presupposes research. The legal certification is made only after reasonable inquiry into standard legal sources, so a lawyer who never looked cannot claim to have formed a belief that the position was justified.87 Research also exposes adverse authority, and the professional conduct rules of nearly every state forbid a lawyer knowingly to fail to disclose directly adverse controlling authority that opposing counsel has not cited.88 That duty sits beside Rule 11(b)(2) and is not part of its text. A lawyer whose client’s position is against the law then has two honest choices: advise settlement, or search for the best argument for distinguishing, extending, or changing the law.89 Ms. Hunter took the second course by acknowledging Austin and arguing against it, and that candor made her position a reasoned argument for change that a court could evaluate.90
Factual Contentions
Rule 11(b)(3) requires that a paper’s factual contentions either “have evidentiary support” or, “if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.”92 The first clause is the ordinary requirement and reaches every factual assertion: when the paper is presented, the pleader must hold something that backs each assertion. The second clause is an exception for assertions that cannot be tested until the pleader reaches the opponent’s records or witnesses, and it works only when the paper flags the assertion as awaiting that work. The certification attaches paragraph by paragraph, because pleadings state facts in numbered paragraphs that later counts incorporate by reference, so each paragraph carries its own certification.93
Evidentiary support is measured objectively. The certification is not phrased in terms of the strength of the pleader’s belief, and that phrasing removes the pure-heart, empty-head defense.94 The bar is also modest, because the paper is presented before discovery, when the pleader has only what a reasonable inquiry could gather. A demand for winning proof would shut out claims whose truth can be established only later. A court therefore asks first whether the record shows an objectively reasonable evidentiary basis, and where the attorney has one, sanctions may not be imposed on the factual claim.95
A claim with nothing behind it shows the failing side. The Hays plaintiffs demanded money from Sony, yet their lawyer never wrote Sony to ask whether it was distributing the manual and made no other effort to learn whether Sony earned any revenue from it.96 The problem was factual, not legal: nothing indicated that Sony had earned anything, and counsel had done nothing to find out. A valid claim for an injunction would not have supplied evidentiary support for a separate demand for money, because the certification applies to each contention in the paper. The lawyer in Hadges stood in a different position even though his statements also proved wrong, because the record already held evidentiary support, as the discussion of reasonable inquiry showed.97 The line between the two cases falls at what stood behind each contention when it was presented.
The second clause exists for allegations whose proof lies in the opponent’s control. Employment discrimination shows the problem most clearly. The decisive evidence is often the personnel file, which the plaintiff’s lawyer does not hold at filing, and an aggrieved former employee may not be fully forthcoming about his own history of past work failures.98 The employer’s motive is a state of mind usually proved through documents obtained in discovery. A rule demanding present proof would bar suit until the defendant’s files were opened, and they open only after suit is filed. The second clause lets the pleader file while still holding the pleader to the work of finding support.
The flag requirement keeps that exception from swallowing the rule. The pleader must specifically identify the allegations that meet only the “will likely have” standard.99 Identification does two jobs. It tells the court and the adversary which allegations are provisional, so they know where discovery must look and can later judge whether the pleader followed through, and it commits the pleader to investigate those allegations in particular. Without the flag, every unsupported allegation would be defensible after challenge by saying the pleader expected discovery to turn up something, and the first clause would mean nothing. The words “likely” and “reasonable opportunity” add their own limits: a hope that evidence exists is not a likelihood.
The flag is necessary but not sufficient. The second clause protects a pleader who has the outline of a claim and lacks details the opponent holds, and it does not protect a pleader who hopes discovery will supply a claim, the point Brown v. Federation of State Medical Boards made in refusing to let discovery stand in for independent inquiry.100
The rule thus limits what a generous pleading standard cannot. A pleader may not allege anything regardless of truth. An allegation is acceptable if the pleader holds support for it when presenting the paper, or if the pleader has flagged it as likely to gain support after discovery and has a reason to expect that result. An allegation that fits neither route violates the certification, however sincerely the pleader believed it.
Denials of Factual Contentions
Rule 11(b)(4) turns from what a party alleges to what a party refuses to concede. By presenting a paper, the signer certifies that “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.”102 The prong mirrors the factual-contentions certification. A plaintiff needs support for what the complaint asserts, and a defendant needs a warrant for what the answer denies, so the rule binds both sides of the caption. Denials appear in the answer, which can also carry any leftover Rule 12(b) defenses.103
A denial does real work, which is why it needs its own certification. An averment in a complaint, other than one about the amount of damages, is deemed admitted if the answer does not deny it.104 A denied fact is one the plaintiff must prove through discovery and trial. A defendant that denies something it knows to be true therefore shifts the cost of proof to the plaintiff and the court, the same shifting that makes a baseless allegation harmful. Rule 11(b)(4) asks defendants to deny only what the evidence or a reasonable belief supports, so that what remains contested is what the parties actually contest.
The second clause lines up with a form of denial that Rule 8(b) already recognizes. A party may state that it lacks knowledge or information sufficient to form a belief about the truth of an allegation, but it must do so in good faith.105 Rule 11(b)(4) accepts that form on two conditions. The paper must specifically identify the denial as resting on belief or lack of information, which tells the court and the plaintiff which denials are provisional and where discovery must look. And the denial must follow a reasonable inquiry.
The word “information” is where careless answers fail. A plaintiff hurt in a collision alleges that the defendant corporation owned and operated the truck, and the corporation knows it owned the truck but does not know who was driving. It must admit ownership, because nothing supports denying a fact its own records establish. As to the driver, an answer saying only that the corporation lacks knowledge is incomplete, because the rule speaks of knowledge or information, and a corporation may lack the first while holding the second in its records or reaching it by asking its employees. The certification is made after a reasonable inquiry, so the corporation must look first. If it asked its drivers and checked its dispatch records and still could not say who was at the wheel, it may state its lack of information honestly and identify the denial as resting on it. A corporation that never asked cannot claim honest ignorance, the same reasoning that denies the signer of a complaint the defense of an empty head and a pure heart.
That scene is the pattern the rule is built to catch. A general denial, which denies every allegation in the complaint, is a permitted form, but the defendant must then contest all of the plaintiff’s allegations or face sanctions. Specific and qualified denials, which deny a whole paragraph or only part of one, let a defendant contest just what it actually disputes.106
Because an answer is a paper presented to the court, its denials are certified again whenever the lawyer later advocates the answer. The lawyer who signed an answer denying the signature on a contract had a warrant when signing, but he renewed the certification at a hearing by citing the answer after the client admitted the signature was hers.107